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Madhya Pradesh High Court · body

2009 DIGILAW 1103 (MP)

Anil v. Vinod Kumar

2009-09-08

N.K.MODY

body2009
ORDER N.K. Mody, J. 1. This order shall also govern the disposal of Cr.Rev. No. 911/2008 as in both the petitions the petitioner is one and same and respondents are father and son and the judgment under challenge is also same which is dated 7.8.2008 passed in case No. 155/07 and 51/2007 whereby the petitioner was convicted under Section 138 of the Negotiable Instruments Act (which shall be referred hereinafter as the "N.I. Act") and was directed to pay a sum of Rs. 1,50,000/- in each of the cases and imprisonment for a period of 2 years was modified with a direction to pay Rs. 1,20,000/- and Rs. 1,00,000/- and imprisonment for a period of six months the present petition has been filed. 2. In Cr.Rev. No. 910/2008 the complaint was filed by one Bhawanishankar on 9.1.2007 alleging that petitioner purchased soyabeen agricultural produce from the respondent and in lieu of that a sum of Rs. 1,00,000/- was outstanding against the petitioner for which a cheque bearing No. 119148 was issued by the petitioner on 2.11.2006. In Cr.Rev. No. 911/2008 the complaint was filed by Vinod Kumar who happens to be son of Bhawanishankar on 10.1.2007 alleging that petitioner purchased Soyabeen agricultural produce and issued a cheque of Rs. 1,20,000/-bearing cheque No. 119149 dated 1.11.2006. In both the cases it was alleged that cheques were sent for collection and the same were returned by the concerned Bank. It was alleged that notice was issued in both the cases by registered post and UPC to the petitioner at his Ratlam and Mandsaur address. It was alleged that notice sent to the petitioner at Ratlam was not received by the petitioner even after receipt of intimation from the post office and notice sent at Mandsaur was returned with postal endorsement of refusal. It was alleged that by not making the payment in-spite of notice the petitioner has committed an offence which is punishable under Section 138 of the N.I. Act. It was prayed that after taking cognizance the petitioner be convicted. 3. After taking cognizance of the offence, learned Trial Court framed the charge, recorded the evidence and convicted the petitioner against which an appeal was filed which was dismissed, hence this petition. 4. Learned Counsel for the petitioner argued at length and submits that petitioner has been convicted illegally while petitioner has not committed any offence. 3. After taking cognizance of the offence, learned Trial Court framed the charge, recorded the evidence and convicted the petitioner against which an appeal was filed which was dismissed, hence this petition. 4. Learned Counsel for the petitioner argued at length and submits that petitioner has been 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 this revision. It is submitted that the learned Courts below committed error in not considering the material omissions and contradictions appearing in the testimony of the prosecution witnesses. Learned Counsel submits that the conviction and sentence be set aside. 5. In alternative, learned Counsel submits that petitioner was in jail after the judgment passed by the learned Trial Court w.e.f. 27.2.2008 and the jail sentence was suspended by the learned Appellate Court vide order dated 1.3.2008. Petitioner was again in jail w.e.f. 7.8.2008 and jail sentence was suspended by this Court vide order dated 22.8.2008 with a condition to deposit the fine amount. It was alleged that since the petitioner was having no means to pay the fine amount therefore again an application was filed for waivement of condition to deposit the fine amount which was allowed vide order dated 4.9.2008 and thereafter the petitioner was released, thus petitioner remained in jail for a period of one month. It is submitted that keeping in view the facts and circumstances of the case the jail sentence be reduced to the period already undergone. 6. Learned Counsel for the respondent submits that after due appreciation of evidence both the Courts below have found the petitioner guilty for the aforesaid offence. It is submitted that revisional jurisdiction of this Court is limited and no interference is called for in the concurrent findings recorded by Courts below. 7. From perusal of record it appears that to prove the case respondent has filed the cheque Ex. P/1, the memo of the Bank where the cheque was deposited by the respondent as Ex. P/2, the memo issued by the petitioner's Bank as Ex. P/3, the notice Ex. P/4, postal receipts Ex. P/5 to P/8 and undelivered registered notice Ex.P/10 and P/l1. Apart from this, respondent Bhawanishankar examined himself as PW-1 while petitioner has examined himself under Section 313, Cr.P.C. In Cr. P/2, the memo issued by the petitioner's Bank as Ex. P/3, the notice Ex. P/4, postal receipts Ex. P/5 to P/8 and undelivered registered notice Ex.P/10 and P/l1. Apart from this, respondent Bhawanishankar examined himself as PW-1 while petitioner has examined himself under Section 313, Cr.P.C. In Cr. Rev. No. 911/2008 wherein complaint was filed by Vinod Kumar, son of the Bhawanishankar the same set of evidence documentary as well as oral is filed except that in this case Vinod Kumar has examined himself as PW-1. 8. In both the petitions the complaints have been filed by the father and son on 9.1.2007 and 10.1.2007. The cheques alleged to have been issued are dated 1.11.2006 and 2.11.2006. Number of cheques are 119148 and 119149. The cheque amount in both the cases is Rs.1,00,000/- and Rs. 1,20,000/-. In both the cases it is alleged that the petitioner has purchased Soyabeen agricultural produce, against which the cheques were issued. From perusal of the cheques it is evident that the cheques have been issued by the petitioner on behalf of M/s. Bhadava Krishi Kendra. In none of the cases the above mentioned firm has been included as accused. It also appears that the cheques have been signed in English, but the blanks has been filled in Hindi. The handwriting in both the cheques appears to be one and the same. Petitioner Bhawanishankar in his cross-examination has stated that he has sold 285 qtl. of Soyabean to the petitioner, which includes the Soyabean which was sold by his son Vinod Kumar. He has further stated that no cash payment was made by the petitioner to the respondent. He has also stated that prior to it there was no transaction between the parties. Complainant Vinod Kumar has stated in his cross-examination that the Soyabeen was sold on 15.8.2006 to the petitioner @ Rs. 1,185/- per qtl. He has further stated that the petitioner prepared the account and issued the cheque in the month of August, 2006 itself. He has further stated that the petitioner was known to him before one or two months from the date of transaction. 9. If the statements of the respondent in both the cases are minutely scrutinized, then it is evident that the transaction of the sale took place in the month of August, 2006 and the cheques were issued for November, 2006. The cheques amounts were Rs. 9. If the statements of the respondent in both the cases are minutely scrutinized, then it is evident that the transaction of the sale took place in the month of August, 2006 and the cheques were issued for November, 2006. The cheques amounts were Rs. 1,00,000/- and Rs. 1,20,000/-. The total quantity of Soyabeen which was sold is 285 qtl. If it is multiplied by Rs. 1185/-, which was the rate of Soyabeen per qtl., then the amount comes to Rs. 3,37,725/-, while the amount of both the cheques is only Rs. 2,20,000/-. Quantity of Soyabeen @ Rs. 1,185/- per qtl, for Rs. 2,20,000/-comes only to 185.640 qtls, while as per the complainant the total quantity which was sold was 285 qtl. Since no cash amount was paid by the petitioner, then how the cheques of Rs. 2,20,000/- were accepted by the respondent in both the cases for a quantity of Soyabeen of 285 qtl. is not explained, 10. In the statement of Vinod Kumar it has come that some account was prepared and was given by the petitioner, but that account has also not been produced by the respondents in any of the cases for the reasons best known to them, It is true that the complainants in both the cases are holder of the cheques and the burden was on the petitioner to rebut the presumption. For this purpose it is not only that the petitioner is required to lead the evidence but the same can be rebutted by cross-examination. 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 (Crl.) 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 cannot be ruled out, the background fact and the conduct of 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 the Act, the same may not lead to injustice or mistaken conviction. 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 the 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. 11. In view of the aforesaid position of law and keeping in view the facts and circumstances of the case, this Court is of the view that the learned Court below committed error in holding that the petitioner is liable for the payment of the cheque amount. In view of this, petition filed by the petitioner is allowed and the impugned judgment passed by the learned Courts below whereby the petitioner was held guilty for an offence punishable under Section 138 of the Act is set aside and the petitioner stands acquitted. 12. With the aforesaid observations, petition stands disposed of. A copy of the order be placed in the record of Cr. Rev. No. 911/08.