Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1048 (MP)

Mukesh Mehta v. Archana Gandhi

2009-08-27

N.K.MODY

body2009
ORDER N.K. Mody, J. 1. This order shall also govern the disposal of Criminal Revision No. 1318/ 2008 wherein Counsel for the petitioner is Mrs. Sadhana Pathak as in both the revisions, judgment under challenge is similar in nature and the petitioner in both the cases is one and the same, however, the respondent No. 1 in both the cases are real sisters. 2. In Criminal Revision No. 1255/2008, the judgment under challenge is dated 18th of September, 2008 passed by Sessions Judge, Dewas in Criminal Appeal No. 85/2008 whereby the judgment dated 21st of April, 2008 passed in Criminal Complaint No. 4173/2006 whereby the petitioner was convicted under Section 138 of the Negotiable Instruments Act (for short 'the Act') and was sentenced for rigorous imprisonment for the term of two years and to pay compensation of Rs. 2,50,000/- was converted into fine by enhancing the compensation to Rs. 2,75,000/-. 3. In Criminal Revision No. 1318/2008, wherein the complainant is Smt. Medha Jain and the judgment under challenge is dated 17th of September, 2008 passed by Sessions Judge, Dewas in Criminal Appeal No. 117/2008 whereby the judgment dated 21st of May, 2008 passed by J.M.F.C in Criminal Complaint No. 5305/2006 whereby the petitioner was convicted under Section 138 of the Act for a period of two years and to pay compensation of Rs. 3,90,000/- to the complainant, was modified by enhancing the compensation to Rs. 4,00,000/-. 4. In Criminal Revision No. 1255/2008, complaint was filed by the respondent No. 1 Smt. Archana Gandhi on 1.8.2005 wherein, it was alleged that a loan of Rs. 2,50.000/- was given to the petitioner on 2.1.2005 in presence of Narendra Dushad and Anar Singh Thakur. It was alleged that the petitioner assured that the amount shall be returned on or before 1.5.2005. It was alleged that in security of the loan amount, a cheque bearing No. 456184 drawn on Dewas Shajapur Gramin Bank, Sonkatch was issued by the petitioner, which was payable on 1.5.2005. It was also alleged in the complaint that on the said cheque, the date, the name and the amount were filled in by the petitioner in presence of the aforesaid witnesses. It was also alleged in the complaint that on the said cheque, the date, the name and the amount were filled in by the petitioner in presence of the aforesaid witnesses. It was alleged that at the time of transaction, petitioner also assured that if the loan amount is not paid before the date mentioned in the cheque, the respondent No. 1 shall be at liberty to submit the cheque for collection. In the complaint, it was further alleged that when the amount was not returned, then the cheque was presented by the respondent No. 1, which was returned with the memorandum of the Bank with the remark 'exceeds arrangement'. It was alleged that thereafter, respondent No. 1 approached the petitioner and the respondent No. 1 was assured that the cheque will be cleared after a month. It was alleged that the cheque was again presented on 10.6.2005, but the same was again returned with the same endorsement. It was alleged that a registered notice was issued to the petitioner on 29.6.2005, which was duly served on the petitioner on 6.7.2005. It was alleged that in spite of notice, the cheque amount was not paid by the petitioner, but the petitioner committed the offence which is punishable under Section 138 of the Act. It was prayed that after taking cognizance of the offence, the petitioner be convicted. 5. In Criminal Revision No. 1318/2008, complaint was filed by respondent No. 1 Megha Jain under Section 138 of the Act on 12.7.2005 in which it was alleged that respondent No. 1 is a lecturer in private collage and is also running coaching class. It was alleged that Sangita Jain is a elder sister of respondent No. 1. It was further alleged that Ramkrishna Mehta is the father of the petitioner, who is the teacher in Higher Secondary School, Sonkatch. It was alleged that because of this, there were family relations between two families. Further case of the respondent No. 1 was that the petitioner is in the trade of sale and purchase of soyabean, grams and grains. It was alleged that for this purpose, the petitioner was in need of money. It was alleged that a loan of Rs. 3,50,000/- was taken by the petitioner from the respondent No. 1 and in security of that, a cheque of Rs. It was alleged that for this purpose, the petitioner was in need of money. It was alleged that a loan of Rs. 3,50,000/- was taken by the petitioner from the respondent No. 1 and in security of that, a cheque of Rs. 3,50,000/- was issued by the petitioner which was dated 21.4.2005 of Dewas Shajapur Gramin Bank, Sonkatch. It was alleged that the cheque was deposited by the respondent No. 1 on the due date, but it was returned with the remark of "insufficient fund". It was alleged that notice was issued to the petitioner by registered post. It was alleged that after receipt of the notice, false reply was given by the petitioner on 8.6.2005. It was further alleged that by not making the payment in spite of notice, the petitioner has committed the offence as alleged. In both the cases, it was prayed that after taking cognizance and after giving opportunity of hearing, the petitioner be convicted. 6. After recording of evidence adduced by the respondent No. 1, cognizance was taken by the learned Trial Court. After framing of charges and recording of evidence, the petitioner in both the cases was convicted as stated herein above, against which an appeal was filed by the petitioner, wherein the conviction was maintained, but the jail sentence was converted by enhancing the fine amount, against which the petition has been filed. 7. Learned Counsel for the petitioner argued at length and submits that petitioner has 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 in incorrect judgment and is liable to be set aside in this revision. 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. It is submitted that in the facts and circumstances of the case, the learned Court below committed error in holding the petitioner guilty for offence punishable under Section 138 of the Act. It is submitted that respondent No. 1 in both the cases are the real sisters. Similarly, one Sangeeta Jain is also sister of respondent No. 1, whose statement was recorded in Complaint No, 5305/2006, in which revision has been filed before this Court bearing Criminal Revision No. 1318/08. It is submitted that respondent No. 1 in both the cases are the real sisters. Similarly, one Sangeeta Jain is also sister of respondent No. 1, whose statement was recorded in Complaint No, 5305/2006, in which revision has been filed before this Court bearing Criminal Revision No. 1318/08. It is submitted that in the evidence of Sangeeta Jain, it has come that there were old money transactions between the petitioner and Sangeeta. It is submitted that in security of the loan transaction, which took place between the petitioner and Sangeeta, some blank cheques duly signed were given by the petitioner. It is submitted that after settlement of the account, taking advantage of the blank cheques, Sangeeta has prosecuted the petitioner through her sisters. Learned Counsel further submits that Sangeeta has admitted in her statement that she was maintaining account, but that account has not been produced by respondent No. 1, It is submitted that in both the cases, contention of the respondent No. 1 is that the amount was given by the respondent No. 1 to the petitioner in cash, but in support of that, no documentary evidence has been produced by the respondent No. 1. It is submitted that there is nothing on record to show that the respondent No. 1 was possessing such a huge amount on the dates mentioned in the complaint for giving the same to the petitioner. 8. Learned Counsel placed reliance on a decision in the matter of Krishna Janardhan Bhat v. Dattaraya G. Hegde I (2008) CCR 199 (SC) : II (2008) BC 44 (SC) : I (2008) DLT (Cri.) 449 (SC) : 2008(4) SCC 54 ,, wherein Hon'ble Apex Court has held that where chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. It was further observed that Courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of Act, the same may not lead to injustice or mistaken conviction. It was also observed by Hon'ble Apex Court that the complainant failed to produce any book of account or any other proof to show that he got so much money from the Bank. It was also observed by Hon'ble Apex Court that the complainant failed to produce any book of account or any other proof to show that he got so much money from the Bank. It was also observed by the Apex Court that Courts below failed to notice that ordinarily in terms of Section 269-SS, Income Tax Act, any advance taken by way of loan of more than Rs. 20,000/- had to be made by an account payee cheque only. 9. Learned Counsel further submits that the petitioner moved an application before the learned Appellate Court to get the questioned documents examined through handwriting expert, but the same was dismissed. Learned Counsel further submits that in Criminal Revision No. 1255/08 an application has been filed which is marked as I.A. No. 4173/06 wherein statement of Sangeeta recorded in Complaint No. 5305/06 in which Criminal Revision No. 1318/08 is pending, be also read with the present case. It is submitted that in the facts and circumstances of the case, petition filed by the petitioner be allowed and the impugned judgment passed by the learned Courts below be quashed. 10. Ms. Kirti Joshi, learned Counsel for the respondent No. 1 submits that in the complaint filed under Section 138 of the Act, the complainant is required to prove that the cheque was given by the accused to the complainant. The said cheque was presented and the same was returned by the Bank. Notice was given by the complainant which was duly received by the accused and in spite of that cheque amount has not been paid by the accused to the complainant. It is submitted that each of the ingredient of Section 138 of the Act has been duly proved by the respondent No. 1 and after taking into consideration all the evidence on record, the petitioner has rightly been convicted by the learned Trial Court, which has been affirmed by the Appellate Court. It is submitted that though the conviction was maintained in appeal, the learned Appellate Court was quite liberal to the petitioner as the jail sentence was converted into fine/compensation. It is submitted that petition filed by the petitioner be dismissed. 11. From perusal of the record, it appears that to prove the case in Criminal Revision No. 1255/08, respondent No. 1 has produced the document Exs.-P/l to P/6 while petitioner has produced the documents Exs.-D/l to D/5. It is submitted that petition filed by the petitioner be dismissed. 11. From perusal of the record, it appears that to prove the case in Criminal Revision No. 1255/08, respondent No. 1 has produced the document Exs.-P/l to P/6 while petitioner has produced the documents Exs.-D/l to D/5. Respondent No. 1 Archna Gandhi has examined herself as PW-1 and also Anarsingh PW-2 and Ashwini Gautam PW-3 while the petitioner has examined himself. 12. In Criminal Revision No. 1318/08, respondent/complainant Megha Jain has proved the documents Exs-P/1 to P/13 and has examined herself as PW-1. Apart from this, respondent No. 1 has also examined Kristopol Khujur PW-2. In this case, petitioner has also examined himself under Section 319 of Cr.P.C as defence witness and has examined Ramkrushna Mehta DW-1, and Sangeeta Jain DW-2. Undisputedly, Sangeeta Jain is none else but the elder sister of respondent No. 1 in both the cases. Sangeeta Jain has stated in her statement on oath that she was having loan transactions with the petitioner since last 4-5 years. She has also admitted that her transaction with the petitioner was in piece. She has also admitted that she has kept account of transaction which took place with the petitioner. However, she has stated that she cannot say whether it is available or not ? Since Sangeeta Jain was examined by the petitioner, therefore, she was declared as hostile. Upon cross-examination, she has denied that she has done any transaction in the name of her sister as she was in Govt. job. In both the cases, learned Sessions Court has found that it is difficult to find out whether the cheque has been filled in by the petitioner in his own handwriting or not, as the specimen handwriting of the complainant is not on record, but at the same time it was observed that the petitioner failed to prove that the blanks of the cheque in question is not in his handwriting and the same was in the handwriting of Sangeeta Jain, sister of the respondent No. 1 after taking into consideration all the facts and circumstances of the case and keeping in view the financial status of the respondent No. 1, Smt. Archana Gandi and Megha Jain and also keeping in view the fact that the alleged loan amount in both the cases was amounting to Rs. 6,40,000/- for which there is absolutely no evidence and also there is no explanation, how the transaction took place in cash, which is contrary to the provisions of Section 269-SS, Income Tax Act. From perusal of the record, it also appears that right from beginning, petitioner was asking for permission of the Court for examining handwriting expert, but the same was refused not only by the Trial Court, but also by the Appellate Court. In the facts and circumstances of the case and the fact that the application filed by the petitioner for examining handwriting expert was dismissed, this Court is of the view that petition filed by the petitioner in both the cases, deserves to be allowed and the impugned judgment passed by the Court below deserves to be set aside and the case deserves to be remanded with the following directions: (1) that, before the learned Trial Court, respondent No. I shall be at liberty to adduce further evidence to the effect that respondent No. 1 was possessing the money, which was delivered to the petitioner on the relevant date by withdrawing the same where it was invested; (2) that the petitioner shall be at liberty to adduce the evidence to prove that the cheques were not filled in by him in his own handwriting and the said cheques were in security of the transaction which continued with Sangeeta Jain, elder sister of the respondent No. 1; (3) that after recording of evidence, the learned Trial Court shall re-decide the complaint filed by the respondent No. 1; (4) that both the parties are directed to remain present before the learned Trial Court on 6th of October, 2009. With the aforesaid observations, both the petitions stand disposed of. Copy of the order be placed in the connected criminal case.