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Madhya Pradesh High Court · body

2007 DIGILAW 329 (MP)

Vinod Rakhan v. State of M. P.

2007-03-20

A.P.SHRIVASTAVA

body2007
ORDER 1. This revision is directed against the judgment of conviction passed by First Additional Sessions Judge, Guna in Criminal Appeal No. 170/99, dated 26.4.2000 affirming the judgment passed by the Chief Judicial Magistrate in Criminal Case No. 914/97, dated 17.9.1999 by which the petitioner was convicted under section 138 of the Negotiable Instruments Act, 1881 and sentenced to undergo RI for one year and fine of Rs. 30,000/-. In default to further undergo simple imprisonment for three months'. 2. In short, the facts of the case are that non-petitioner No. 2 filed a complaint against the petitioner under section 138 of the Negotiable Instruments Act on the allegation that about eight months back, the petitioner had taken Rs. 25,000/- from the non-petitioner No. 2 for purchasing some plot. When money was demanded, the petitioner avoided to return the same. On 28.1.1997 when the amount was again demanded, petitioner gave a cheque for Rs. 25,000/- of State Bank of Indore, bearing cheque No. S. B-Q-106623. The cheque was deposited for collection of the amount through UKO Bank, Guna but the same could not be encashed due to want of money. On 13.2.1997 the non-petitioner No. 2 gave a registered notice to petitioner informing about the non-encashment of cheque but the petitioner has not encashed the amount within fifteen days from the receipt of the notice. The notice was received by the petitioner on 19.2.1997. Therefore, a complaint was filed before the Chief Judicial Magistrate, Guna. The Chief Judicial Magistrate, Guna took cognizance and registered a complaint under section 138 of Negotiable Instruments Act and framed charge accordingly and after perusal of oral and documentary evidence held the petitioner guilty as stated in para No. 1 of the order. 3. During the course of argument, it is submitted by counsel for the petitioner that some cheques of the petitioner were misplaced in the year 1994 and intimation was given to the bank, due to this payment was stopped. The cheque was deposited by the non-petitioner No. 2 and as payment was stopped by the Bank, the liability under section 138 of the Negotiable Instruments Act would not arise against the petitioner. 4. The cheque was deposited by the non-petitioner No. 2 and as payment was stopped by the Bank, the liability under section 138 of the Negotiable Instruments Act would not arise against the petitioner. 4. It is submitted by the counsel for the non-petitioner No. 2 that the cheque could not be encashed due to want of money in the account and the petitioner has not given any evidence in rebuttal in view of section 139 of the Negotiable Instruments Act. It is not proved as alleged by the petitioner that the blank cheque was given by the petitioner to non-petitioner No. 2. 5. There is a concurrent finding of fact regarding the non-payment of cheque, therefore, the scope of the revisional Court is limited to see whether there is any illegality or error of law has been committed by the Courts below by convicting the petitioner under the above offence. Dharmendra Raghuvanshi (PW 1) stated that he has given Rs. 25,000/- to the petitioner and when he demanded the money back, he has avoided for payment. On 28.1.1997 a cheque for Rs. 25,000/- was given by the petitioner but it was not encashed due to non-availability of the amount in his account. Thereafter he has given notice by registered AID post to the petitioner but after the expiry of 15 days no money was paid by the petitioner. In cross-examination, it is admitted by the witness that the cheque Ex. D-1 was given blank to him and he put his name and date in the cheque. The witness also deposed that in Ex. D-6 it was mentioned that the payment was stopped. 6. From the side of the petitioner, Ramkrishna (DW 1) and Arvind Kumar Raghuvanshi (DW 2) were examined and they deposed that there is a savings bank account bearing No. 1559 of the petitioner in the State Bank of Indore and the copy of which is Ex. P-7. There is an endorsement that no cheque should be passed as the cheques were misplaced. In cross-examination, the witness told that the amount was also not sufficient in the savings bank account and, therefore, the cheque could not be encashed. Arvind Kumar (DW 2) stated that the information about missing of cheque was received in the bank and petitioner has also given application. The balance amount of his savings bank account was Rs. 262/- only. In cross-examination, the witness told that the amount was also not sufficient in the savings bank account and, therefore, the cheque could not be encashed. Arvind Kumar (DW 2) stated that the information about missing of cheque was received in the bank and petitioner has also given application. The balance amount of his savings bank account was Rs. 262/- only. If the information was not given to the bank then also payment could not be done due to want of sufficient money in the account. Petitioner himself not examined and came to the witness-box. 7. The trial Court has found that as no payment was made within fifteen days' after receipt of notice and in the cheque signature of the petitioner was not disputed and the petitioner failed to rebut the presumption as laid down under the Act and, therefore, held guilty under section 138 of the Negotiable Instruments Act and the finding of the trial Court was upheld by the appellate Court. 8. Section 138 deals with the dishonour of cheque for insufficiency of funds in the account. Under section 138 of Negotiable Instruments Act it is stated that for the dishonoured cheque the drawer shall be liable for conviction the demand is not made within 15 days of the receipt of notice but this is without prejudice to any other provision of the Act. If the cheque amount is paid within the above period or before the complaint is filed the legal liability under section 138 will cease and the recovery of other demands as compensation cost, interest etc., a civil proceeding will lie. Section 139 of the Act deals with presumption in favour of holder. It laid down that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. It is also made out that once the cheque is issued by the drawer a presumption under section 139 must follow and merely because the drawer issues a notice to the drawee or to the bank for stoppage of the payment it will not preclude an action under section 138 of the Act by the drawee or the holder of the cheque in due course. M/s. Modi Cements Ltd., v. Kuchil Kumar Nandi [ AIR 1998 SC 1057 ]. Under section 139 of the Act there is a legal presumption that the cheque was issued for discharging an antecedent liability and that presumption can be rebutted only by the person who drew the cheque. The aforesaid presumption is in favour of the holder of cheque. It is not mentioned in the section that the said presumption would operate only against the drawer. The presumption available under section 139 can be rebutted by the accused by adducing evidence. Therefore, the burden of proof is on the accused and the evidence available or record will have to be appreciated by bearing in mind that the above fact regarding burden of proof. 9. The main defence of the petitioner is that in the year 1994, the cheque was lost and he informed to the bank authorities for stoppage of payment. It is submitted by counsel for the petitioner that the report was also lodged before the police station. The petitioner has not appeared in the witness-box nor had given evidence in rebuttal against the evidence adduced by the non-petitioner No. 2. There is no explanation on record how the cheque came into the possession of the non-petitioner No. 2. It appears that at the time of taking loan by the petitioner he might have given blank cheque by putting his signature to non-petitioner No. 2 and that cheque was given for encashment, when the payment was not paid by the petitioner. There is no evidence that the missed cheque also contains the same number which was given by non-petitioner to the bank. From the evidence of the employees of the bank it is clear that the payment was stopped, but at the same time there was no sufficient amount in the savings bank account of the petitioner and the cheque could not be encashed due to want of sufficient money in the account. Therefore, it is found that the finding recorded by the Courts below does not suffer from any illegality or based on against legal evidence. Therefore, the finding recorded by the Courts below needs no interference. Accordingly, the revision is dismissed.