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Madhya Pradesh High Court · body

2009 DIGILAW 1120 (MP)

Navin v. State of M. P.

2009-09-11

N.K.MODY

body2009
JUDGMENT N.K. Mody, J. 1. Being aggrieved by the judgment dated 7.7.2008 passed by VII ASJ, (Fast Track), Ujjain in Cr.A. No. 125/08 whereby the judgment dated 14.2.2008 passed by ACJM, Ujjain in Criminal Case No. 621/07 whereby the petitioner was convicted for an offence punishable under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as an "Act") with imprisonment of one year and fine of Rs. 1,000/- and compensation of Rs. 2,67,000/-, was modified by reducing the jail sentence to six months, the present petition has been filed. 2. Short facts of the case are that the respondent No. 2 filed a complaint before the learned Trial Court under Section 138 of the Act on 11.1.2007 alleging that the petitioner is in good relation with respondent No. 2. It was alleged that petitioner is manufactures of confectioneries and also sweets. It was alleged that petitioner took a sum of Rs. 1,50,000/- in cash in the year 2004 and again took a loan of Rs. 50,000/- in January, 2005 for the case of his brother. It was alleged that upon demand the petitioner issued a cheque of Rs. 2,00,000/- bearing cheque No. 0312462 of Bank of Baroda, Branch Ujjain dated 9.12.2006 and also assured that the petitioner shall pay interest at Bank rate separately. It was alleged that the cheque given by the petitioner was deposited by the respondent No. 2 for collection with State Bank of Patiala, Branch Freeganj, Ujjain on 11.12.2006, but the same was returned by the concerned Bank on 12.12.2006 with an endorsement "insufficient funds". It was alleged that notice of demand was issued by the respondent No. 2 by registered post as well as under certificate of posting on 21.12.2006, which was duly served on 23.12.2006, but in spite of that cheque amount was not paid. It was alleged that the petitioner has committed an offence which is punishable under Section 138 of the Act, hence after taking cognizance and also after notice to the petitioner and recording of evidence petitioner be convicted. 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 allowed in part and the jail sentence was reduced to six months, against which present petition has been filed. 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 allowed in part and the jail sentence was reduced to six months, against which present petition has been filed. 3. 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 that material omissions and contradictions appearing in the testimony of the prosecution witnesses. Learned Counsel submits that the conviction and sentence be set aside. 4. In alternative learned Counsel submits that petitioner was in jail w.e.f. 7.7.2008 and the jail sentence was suspended by this Court vide order dated 11.7.2008. It is submitted that looking to the nature of offence and the fact that petitioner has already served substantive part of jail sentence, the same may be reduced to the period already undergone and the amount of fine may reasonably be enhanced. 5. Learned Counsel for the respondent No. 2 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 the Courts below. It is submitted that the petition filed by the petitioner be dismissed. 6. From perusal of the record it appears that in the complaint itself respondent has alleged that a sum of Rs. 1,50,000/- was given by respondent in May 2004 and a sum of Rs. 50,000/- was given in the month of January, 2005. No documentary evidence has been produced for the alleged transaction. It is further alleged in the complaint that upon repeated reminders the cheque of Rs. 2,00,000/- was given on 9.12.2006, i.e. after two and half years of first transaction. In the statement of respondent it has come that the respondent is running a small tea-stall. He has further stated that he has no idea about his sale on monthly basis or on yearly basis. 2,00,000/- was given on 9.12.2006, i.e. after two and half years of first transaction. In the statement of respondent it has come that the respondent is running a small tea-stall. He has further stated that he has no idea about his sale on monthly basis or on yearly basis. He has further stated that no written document was obtained from the petitioner when the loan was given. However, he has stated that since the respondent was having the confidence in the petitioner, therefore, there was no written document of the transaction. He has further stated that a sum of Rs. 1,50,000/- was given for purchasing of the machinery of manufacturing of confectioneries for the unit of the petitioner. In the cross-examination he says that he does not know whether there is any industry in the name of the petitioner or not. He has further stated that he does not try to know whether the petitioner is having any industry in his name or not. Respondent has admitted that he was not having that much of money, which was given by him. However, he has further stated that for giving the loan to the petitioner he took the loan from Jalamsingh, Kapurchand Yadav and Kamlesh Shrivastava. He has also stated that Rs. 50,000/- were taken from Kapurchand, while Rs. 50,000/- from Jalamsingh and Rs. 70,000/- from Kamlesh Shrivastava and Rs. 30,000/- was given by him personally. He has also stated that Kamlesh Shrivastava is his nephew, while Jalamsingh and Kapurchand are the friends of his brother. None of these witnesses were examined by the respondent to show that the respondent was knowing capacity to arrange such a huge fund and in fact the transaction took place. 7. It is true that the respondent is the holder of the cheque and the presumption is in favour of respondent. The presumption can be rebutted by the accused by adducing evidence in rebuttal or by cross-examination. In the matter of M.S. Narayana Menon alias Mani v. State of Kerala III (2006) CCR 76 (SC) : III (2006) BC 433 (SC) : (2006) 3 SCC (Cri.) 30, in a case where complainant is not producing before Court his statutory books of accounts in respect of said transaction, Hon'ble Apex Court has held that onus of proof on accused, is not as heavy as that of the prosecution. It was further held that such onus compared with that of a defendant in civil proceeding. In the matter of Krishna Janardhan Bhat v. Dattatraya G. Hegde I (2008) CCR 199 (SC) : II (2008) BC 44 (SC) : I (2008) DLT (Crl.) 449 (SC) : (2008) 2 SCC (Cri) 166, wherein Hon'ble Apex Court has held that the Courts below failed to notice that ordinarily in terms of Section 259SS, 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. It was also held that considering the peculiar facts and circumstances of the case, the approach of Courts below in convicting the accused was not correct and set aside. 8. From perusal of the record, it appears that these all important aspects of the case were not taken into consideration by the learned Courts below. In view of this, the petition filed by the petitioners is allowed and the impugned judgment passed by the learned Courts below whereby the petitioner was convicted, is set aside. Petitioner stands acquitted. 9. With the aforesaid observations, petition stands disposed of.