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Madhya Pradesh High Court · body

2008 DIGILAW 1375 (MP)

Kanhaiyalal v. Paramjeet Singh

2008-11-25

N.K.MODY

body2008
Judgment 1. This order shall also govern the disposal of Cr. R. Nos. 710/08 and 711/08, as in all the three petitions petitioner is one and the same and in Cr. R. Nos. 709/08 and 710/08 respondent is also one and the same, so far as respondent of Cr. R. No. 711/08 is concerned, he is the son of the respondent of Cr. R. 709/08. 2. In all the three petitions judgment under challenge is dated 24-06-08 passed by 1st ASJ, Mandsaur in Cr. A. No. 186/08, whereby the judgment dated 5-5-08 passed by JMFC, Mandsaur in Criminal Case No. 1607/06 whereby the petitioner was convicted under Section 138 of Negotiable Instrument Act (which shall be referred hereinafter as an Act) with imprisonment of one month with fine of Rs. 60,000/-, the present petition has been filed. 3. Particulars of all the three cases are as under : Sr. No. Cr.R.No. Cr.A. No. Date of Judgment. Criminal Case No Date of Judgment 1. 709/08 186/08 24. 6.2008 1607/06 5.5.2008 2. 710/08 188/08 24.6.2008 1140/06 5.5.2008 3. 7 11/08 187/08 24.6.2008 1141/06 5.5.2008 4. In all the three case the complaint was that petitioner issued a cheque of Rs. 43,000/- and two cheques of Rs. 45,000/-, which were dishonoured upon presentation and the amount was not paid in spite of demand. It was prayed that petitioner be prosecuted under Section 138 of the Act. After taking cognizance and also after framing of charge and recording of evidence, it was found that the petitioner has committed an offence punishable under Section 138 of the Act and petitioner was convicted with an imprisonment of one month and fine of Rs. 60,000/-. out of which Rs. 55,000/- was payable to the respondent. In appeal the sentence awarded by the learned Trial Court was maintained, against which present revision petition has been filed. 5. In all the three cases factual details are as under- Sr.No Cr.R.No. Date of Amount Representation Notice Complaint Cheque 1. 709/08 10.11.2005 43,000/- 3.3.2006 13.3.206 10.4.2006 2. 710/08 6.11.2005 45,000/- 3.3.2006 6.2.2006 3.3.2006 3. 711/08 7.11.2005 45,000/- 25.1.2006 6.2.2006 3.3.2006 6. Learned Counsel for the petitioner argued at length and submits that petitioner was convicted illegally while petitioner has not committed any offence. 709/08 10.11.2005 43,000/- 3.3.2006 13.3.206 10.4.2006 2. 710/08 6.11.2005 45,000/- 3.3.2006 6.2.2006 3.3.2006 3. 711/08 7.11.2005 45,000/- 25.1.2006 6.2.2006 3.3.2006 6. Learned Counsel for the petitioner argued at length and submits that petitioner was convicted illegally while petitioner has not committed any offence. Learned counsel further submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in these revision petitions. It is submitted that the learned Courts below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses and the defence of petitioner. It is submitted that petitioner was in jail w.e.f. 24.6.2008. Bail was granted by this Court vide Order dated 17.7.2008 but petitioner could not be released, hence subsequent order was passed by this Court vide Order dated 31.7.2008, in compliance of which petitioner was released on 2.8.2008. It is submitted that petitioner has already completed the jail sentence of more than five weeks. 7. In the matter of Padma Ispat Trading Private Limited v. Pramod Agrawal, 2007(11) MPWN 13, wherein this Court has held that in a case where cheque, returned by Bank with endorsement “signature does not tally” complaint is not maintainable on such ground, as the penal provision are attracted on the ground mentioned under Section 138 of the Act. In the matter of Vinod Tunna v. Zaher Siddiqui, 2003(1) MPLJ 373, wherein cheque was dishonoured as drawer's signature was incomplete, Hon'ble Apex Court held that provisions of Section 138. Negotiable Instruments Act not attracted and the criminal proceedings as initiated are quashed. 8. From perusal of the record it is evident that in two cases the non-applicant is Paramjeet aged 50 years and in one case the non-applicant is Tushan S/o Paramjeet aged 21 years only. Tushan has admitted in his evidence that he is having no source of income. He has further admitted that he has given Rs. 45,000/- to the petitioner with the consent of his father. Paramjeet Singh has also come in witness-box and has stated that he is in hotel business and is also income tax payee. He has further admitted that the cheque amount in all the cases were given by him from time-to-time. He has further stated that the amount was withdrawn by him from the Bank for making the payment to the petitioner. He has further admitted that the cheque amount in all the cases were given by him from time-to-time. He has further stated that the amount was withdrawn by him from the Bank for making the payment to the petitioner. The total amount in all the three cheques is Rs. 1,33,000/-. The best evidence which was available with the respondent was the source from where the payment was made to the petitioner, was not produced before the learned Court below, for the best reasons known to the respondent. The date of cheque in all the cases are 6.11.2005, 7.11.2005 and 10.11.2005. while the said cheques were submitted for collection on 25.1.2006 and 3.3.2006. There is nothing in the complaint that why the cheques were submitted by the respondent after four months. Since the allegation of the petitioner was that the signatures of the petition was obtained forcibly and without any consideration, for which the petition also examined his mother Gitabai, who was aged 70 years and has also given the detailed reply of Ex. P/6 and also some police complaint was also lodged by the petitioner on 23.1.2006. In such circumstances respondent was duty-bound to submit further evidence specifying when the respondent is in trade and is maintaining the account and also an income tax payee. 9. In the opinion of this Court, the petitioner has discharged initial burden and the burden was on the respondent to prove the fact that the aforesaid cheques were issued by the petitioner to discharge his legal liability. 10. In view of this the petition filed by the petitioner is allowed and the impugned judgment passed by the learned Court below, whereby the petitioner has been convicted under Section 138 of the Act is set aside. Petitioner stands acquitted. 11. With the aforesaid observations, petition stands disposed of. A copy of this order be placed in the record of Cr R. Nos. 710/08 and 711/08. Petition allowed.