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Madhya Pradesh High Court · body

2002 DIGILAW 994 (MP)

Surendrasingh Tomar v. Shankar Joshi

2002-10-29

S.L.KOCHAR

body2002
Judgment ( 1. ) THIS revision petition, has been filed by the applicant against judgment dated 5-9-2002 passed by II ASJ, Ujjain, in Criminal Appeal No. 79/2002, arising out of order dated 9-5-2002 passed in Case No. 1869/2002, by Chief Judicial Magistrate, Ujjain, thereby convicting the applicant for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the Act") and sentencing him 3 months RI with fine of Rs. 3000/- and compensation Rs. 20000/ -. ( 2. ) THE case of the prosecution before the Trial Court was that complainant/non-applicant No. 1 has filed criminal complaint against applicant on the ground that as the relations were cordial between the parties and as the applicant was in need of funds, on the assurance of return the same, complainant/non-applicant Shankar Joshi gave him total Rs. 32,478. 40. On reminder, applicant issued 2 cheques dated 23-10-91 bearing No. 278528 and 278533 drawn on State Bank of India, Sarafa Branch, Ujjain amounting to Rs. 10,200/- and Rs. 12,800/- respectively, but on presenting the cheques for encashment in the bank the same were returned with the endorsement of insufficiency of funds in A/c No. 1/27. The cheques were returned on 1-11-1991. ( 3. ) IT is, further, alleged that the applicant issued cheque No. 278549, dated 1-11-91 amounting to Rs. 10,000/- in favour of the non-applicant towards repayment of the aforesaid amount but the cheque was again returned on 4-1-92 because of exceeding payment in that account. The amount is also showing over draft beyond the prescribed limit. Therefore, non-applicant issued notice dated 13-1-92 which was returned with an endorsement "refused to accept notice". Again, on 14-1-92 intimation was sent to the applicant but the same was also returned. Since within 15 days from 14-1-92 payment was not made by the applicant, complaint was filed within limitation. Learned Trial Court held the applicant guilty for the aforesaid offence and sentenced him as indicated above. ( 4. ) THE applicant has been represented by his Counsel whereas complainant/non-applicant No. 1 remained absent and also not represented by any Counsel, though served. ( 5. ) LEARNED Counsel for the applicant has submitted that cheque in dispute, was bearing No. 278549 amounting to Rs. 10000/- whereas at the time of recording of the statement under Sections 200 and 202, Cr. PC, photocopy of the intimation letter, Exh. P/2-A was filed. ( 5. ) LEARNED Counsel for the applicant has submitted that cheque in dispute, was bearing No. 278549 amounting to Rs. 10000/- whereas at the time of recording of the statement under Sections 200 and 202, Cr. PC, photocopy of the intimation letter, Exh. P/2-A was filed. This intimation letter was written about return of cheque No. 278548 for Rs. 10,000/ -. This fact is clear from the document Exh. P/2-A. The same is the factual position in document Exh. P/3-A. Document Exh. P/2-A and Ex. P/3-A are disclosing the fact that cheque No. 278548 was returned because it exceeded arrangement whereas the disputed cheque Ex. P/1-C bears No. 278549. All these are photostat copies of the original documents and were filed at the first instance by the complainant in Court. When the statement of the complainant was recorded after appearance of the applicant, he filed original intimation letter, which is Exh. P-2 and in the said letter issued by the State Bank of India, Sarafa Branch, Ujjain, manipulation and interpolation, by striking out No. 278548 and writing No. 278549, was done in different ink. This shows that in original letter Ex. P-2, cheque No. 278549 and in Ex. P/3-C (photostat copy of Ex. P-3 is also shown as EX. P/3-A) is not an original copy of Ex. P/3-A, thereby meaning the non-applicant being a bank employee, got separate document issued from the bank showing cheque No. 278549 alongwith cheque number as mentioned in original cheque number Ex. P-1. He, further alleged that witness of the complainant Vinay Kumar (P. W. 2), Deputy Manager, State Bank of India, Ratlam (at the relevant time was being posted in the State Bank of Sarafa Branch, Ujjain) in para 2 has deposed that letter Ex. P-2 was written from his Branch for cheque No. 278548 amounting to Rs. 10,000/- which was in favour of non-applicant No. 1 Shankar Joshi. In view of this statement of this witness, it is crystal clear that manipulation and interpolation in Ex. P-2, have been done by the complainant after filing the original in Court because the original has been tendered in evidence as Exs. P-1, P-2 and P-3 and in the statement of complainant/non-applicant No. 1 Shankar Joshi on 23-9-1996. Whereas Vinay Kumar (P. W. 2) was examined on 30-10-1996. If Exs. P-2, have been done by the complainant after filing the original in Court because the original has been tendered in evidence as Exs. P-1, P-2 and P-3 and in the statement of complainant/non-applicant No. 1 Shankar Joshi on 23-9-1996. Whereas Vinay Kumar (P. W. 2) was examined on 30-10-1996. If Exs. P-2 and P-3 (Original) were filed in the same condition as available in the record, in the statement of the witness Vinay Kumar (P. W. 2) would have not given cheque No. 278548 because the witness has given the statement on the basis of the original document and not on the basis of the photostat copies. ( 6. ) SINCE complainant/non-applicant No. 1 and his Counsel are not present despite service of notice, this Court was efficiently assisted by Mr. Garish Desai, learned Dy. Advocate General. ( 7. ) AFTER careful perusal of the photocopy of cheque, Ex. P/1-C and letter dated 4-1-92, Ex. O/2-A written to non-applicant No. 1 by the then Branch Manager, Ex. 3/c (A), it is clear that the cheque which was returned was bearing number 278548 whereas cheque in dispute is bearing number 278549. The original document was filed after appearance of the applicant in Court at the time of recording of the statement of complainant on 23-9-96. Thereafter statement of Vinay Kumar (P. W. 2), Dy. Branch Manager, State Bank of India on 30-10-96, was recorded. The documents Exs. P-2 and P-3 were disclosing cheque number 278548 and only thereafter manipulation and interpolation have been done in Court record when original Exs. P-1 and P-3 were filed and tendered in evidence. This appears to be very serious matter but both the Courts below have not taken cognizance of this aspect of the matter though pointed out specifically. ( 8. ) PARA 14 of the judgment of the Trial Court is also disclosing about manipulation and interpolation as also fraud played with the record of the Court, pointed out by the applicant, but the same has not been considered by both the Courts below in its proper perspective. ( 9. ) LEARNED Counsel for the applicant has also filed certified copy of the cheque Ex. P/1-C, letter Ex. P/3-C and the statement of Vinay Kumar (P. W. 2 ). ( 10. ) THIS Court has gone through the statement of the complainant. The complainant has nowhere explained in Ex. ( 9. ) LEARNED Counsel for the applicant has also filed certified copy of the cheque Ex. P/1-C, letter Ex. P/3-C and the statement of Vinay Kumar (P. W. 2 ). ( 10. ) THIS Court has gone through the statement of the complainant. The complainant has nowhere explained in Ex. P-2 about manipulation and interpolation, i e. , striking out cheque number 278548 and writing it in different ink as number 278549. The documents on record, (Original) Exs. P-l, P-2 and P-3 and its photo copies Exs. P/l-C, P/2-C and P/3-C are clearly indicating that some sort of mischief has been played with the record of the Court after filing of the original document Ex. P-2 and document Ex. P-3 which is showing cheque number 278549 whereas its photo copy filed at the initial stage while recording statement of the complainant under Sections 200 and 202, Cr. PC (Ex. P/3-C) is showing cheque No. 278548. The document Ex. P-3 was also with the letter and Ex. P/3-C is not its photo copy because Ex. P/3-C is disclosing contrary cheque number to the cheque number mentioned in Ex. P-3. Non-applicant No. 1/complainant has failed to establish by adducing cogent and reliable evidence that on presenting the aforesaid cheque for encashment in the Bank, Exh. P-1 bearing No. 278549 was returned by the Bank with an intimation regarding insufficiency of funds or exceeding arrangement. Therefore, this revision deserves to be allowed. ( 11. ) ACCORDINGLY, this criminal revision is allowed. The conviction, sentence and the compensation imposed by the Courts below are hereby set aside. ( 12. ) THE Trial Court is directed to initiate enquiry about manipulation and interpolation in document Exs. P-1 and P-2 which are contrary to the photostat copy of documents Ex. P/1-C and Ex. P/3-C and take suitable action in accordance with law against the person found responsible for this.