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Madhya Pradesh High Court · body

2008 DIGILAW 1401 (MP)

Satyanarayan v. Ashok Kumar

2008-12-03

N.K.MODY

body2008
ORDER 1. Being aggrieved by the judgment dated 12.10.2007 passed by VIIth Additional Sessions Judge (Fast Track) Ujjain in Cr.A. No. 397/07 whereby the judgment dated 17.8.2007 passed by Special Judicial Magistrate, Ujjain in Criminal Case No. 9886/06 whereby the petitioner was convicted for an offence punishable u/s 138 of Negotiable Instruments Act (which shall be referred hereinafter as an Act) with imprisonment of three months RI and was directed to deposit a sum of Rs. 35,000/- payable to respondent was maintained, the present petition has been filed. 2. Short facts of the case are that on 27.8.2003 a complaint was filed by the respondent u/s 138 of the Act before the learned trial Court alleging that the petitioner gave a cheque of Rs. 30,000/- of State Bank of India bearing cheque No. A260-885393 dated 6.6.2003 and assured that the same shall be cleared by the concerned bank on presentation. It was further alleged that the said cheque was presented by the respondent on 16.7.2003, but the same was returned by the concerned bank with a memorandum to the effect that "exceeds arrangement". It was alleged that after bouncing of the cheque, notice of demand was issued by the respondent through an advocate on 22.9.2003 which was duly served on the petitioner on 26.9.2003, wherein demand was made but inspite of that the cheque amount was not paid. It was prayed that petitioner be prosecuted u/s 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 u/s 138 of the Act and petitioner was convicted as stated above. In appeal the sentence awarded by the learned trial Court was maintained, against which present revision petition has been filed. 3. Mr. B.L. Bakaliya, learned counsel for petitioner argued at length and submits that the impugned judgment passed by the learned Court below is illegal and deserves to be set aside. It is submitted that petitioner has not committed any offence. It is also submitted that the complaint itself does not constitute an offence punishable u/s 138 of the Act. The essential ingredients that the Negotiable Instruments ought to have been issued to discharge the legal liability was missing in the complaint. It is submitted that petitioner has not committed any offence. It is also submitted that the complaint itself does not constitute an offence punishable u/s 138 of the Act. The essential ingredients that the Negotiable Instruments ought to have been issued to discharge the legal liability was missing in the complaint. It is submitted that in the complaint it is no where stated by the complainant who is respondent herein that why the alleged cheque has been issued by the petitioner. Learned counsel further submits that learned Courts below completely overlooked the fact that there was interpolation in the cheque. It is submitted that previously the date of cheque was 6.12.2002 which was later on altered as 6.6.2003. It is submitted that from the evidence adduced by the petitioner, it has been proved that the cheque was submitted by the respondent on 7.1.2003 and the same was dishonoured, therefore, the prosecution could not have been filed on the basis of subsequent presentation. Learned counsel placed reliance on a decision of Bombay High Court in the matter of M/s Pooja Granites and Marbles Ltd. v. Ispat Finance Ltd., reported in 2004 (2) DCR 53 whereit it was held that the drawee has to present cheque for payment in Bank on which Negotiable Instrument is drawn within a period of six months from the date of issuance and if drawee presented such negotiable instruments after six months that is dishonoured, drawee has to blame himself for such delay and he cannot file criminal complaint against drawer. Further reliance is placed on a decision of Kerala High Court in the matter of Starline Agencies v. R.B. Agencies, reported in 2007 (DOC) 96 Kerala wherein there was overwriting in 'year' noted in cheque and the accused had not consented to such material alteration in cheque, it was held that the cheque is void and accused is entitled to acquittal. On the strength of aforesaid decisions learned counsel submits that the petition filed by the petitioner be allowed and the judgment passed by the learned Courts below be set aside. 4. From perusal of the record it appears that petitioner was in jail w.e.f. 12.10.2007 and the jail sentence was suspended by this Court vide order dated 23.10.2007 subject to depositing 50% of the amount of cheque within a period of one month. 5. 4. From perusal of the record it appears that petitioner was in jail w.e.f. 12.10.2007 and the jail sentence was suspended by this Court vide order dated 23.10.2007 subject to depositing 50% of the amount of cheque within a period of one month. 5. From perusal of the record it is evident that to prove the case the respondent has filed documentary evidence i.e. cheque Ex. P-1, which was initially bearing the date as 6.12.2002. The letters 6.12.2002 were deleted and thereafter the new date was mentioned as 6.6.2003. On the rare part of the cheque Ex. P-1, it bears the rubber stamp of Bank of Baroda dated 7.1.2003 which indicates that after issuance of the cheque for 6.12.2002 the cheque was presented through Bank of Baroda on 7.1.2003. It appears that after return of the cheque the date 6.12.2002 was deleted and date 6.6.2003 has been inserted. The fact that the cheque was returned on 7.1.2003 is further proved by the statement of Mr. Anand Shrivastava NAW 1 Senior Clerk of the Bank who was examined by the petitioner. There are number of illegalities and infirmities which are as under: (1) In the complaint it is no where stated by the respondent that the cheque was issued by the petitioner in discharge of some legal liabilities. (2) In the complaint it is not stated that the cheque was initially dated 6.12.2002 which was later on altered as 6.6.2003. (3) In the complaint it is not stated that after issuance of cheque for 6.12.2002 the cheque was presented and the same was dishonoured by the bank on 7.1.2003. (4) It is not the case of the respondent that after dishonouring of the cheque again the same was represented within the validity period. On the contrary the document speaks that after dishonouring the cheque the date was changed. In what circumstances the date was changed has not been stated by the respondent in the complaint. (5) In the cross-examination which has been made on behalf of respondent to the clerk of the bank NAW 1 Mr. Anand Shrivastava a suggestion has been given for the first time the cheque was presented only on 15.7.2003 which has categorically denied by the said witness and it has been stated that the cheque was presented earlier also on 7.1.2003. Anand Shrivastava a suggestion has been given for the first time the cheque was presented only on 15.7.2003 which has categorically denied by the said witness and it has been stated that the cheque was presented earlier also on 7.1.2003. The witness has further stated that it is true that the cheque does not bear the signature of any officer of the bank for 7.1.2003 but there is a rubber stamp of the bank which is dated 7.1.2003. 6. Since the cheque was dishonoured on 7.1.2003 and no action was taken by the respondent within the statutory period and there is no explanation on the part of respondent that in what circumstances the cheque was revalidated for 6.6.2003, therefore, in the opinion of this Court learned Courts below committed error in convicting the petitioner for an offence punishable u/s 138 of the Act. 7. In view of this petition filed by the petitioner is allowed and the impugned judgment passed by the learned Court below whereby the petitioner was convicted u/s 138 of the Act is set aside. Petitioner stands acquitted. 8. With the aforesaid observations, petition stands disposed of.