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2009 DIGILAW 1239 (MP)

Virender Shrimal v. Kadari Hardware Store

2009-11-03

N.K.MODY

body2009
ORDER N.K. Mody, J. 1. This order shall also govern the disposal of Criminal Revision No. 199/2009 as both the petitions are arising out of one judgment. 2. Being aggrieved by the order dated 4.2.2009 passed by 1st ASJ, Shajapur in Criminal Appeal No. 79/2008, whereby the judgment dated 31.3.2008 passed by JMFC, Shajapur in case No. 30/2007, whereby the petitioner was convicted for an offence punishable under Section 138 of Negotiable Instruments Act (in short the 'N.I. Act'), was maintained and sentence of six months and fine of Rs. 1,00,000/-was modified by reducing the fine amount to Rs. 10,000/-, present petition has been fried. 3. Criminal Revision No. 185/2009 has been filed by the accused wherein the grievance is that conviction itself is bad in law and deserves to be set aside while Criminal Revision No. 199/2009 has been filed by the complainant, wherein the grievance is that the learned Appellate Court committed error in reducing the fine amount while the conviction was maintained. It is, therefore, both the petitions are being heard finally and decide by one order. 4. Short fact of the case was that a private complaint was filed by the respondent No. 1 on 26.12.2006 under Section 138 of NI Act alleging that the respondent No. 1 is resident of Shajapur and is carrying Hardware Store in the name and style of M/s. Kadari Hardware Stores. It was alleged that respondent No. 1 is the proprietor of the shop. It was alleged that the petitioner is carrying the business in the name and style of M/s. Mahavir Warehouse. It was alleged that petitioner is carrying a construction work of warehouse at village Sadarkhedi. It was alleged that petitioner was in need of iron pipes for his construction work. It was alleged that on 14.10.2006, petitioner purchased goods valuing Rs. 85,000/- from the shop of respondent No. 1. It was further alleged that after purchasing the pipes on 14.10.2006, a cheque of Rs. 85,000/- of Bank of India was issued by the petitioner on 25.10.2007. Further case of prosecution was that the said cheque was deposited by the respondent No. 1 with Nagrik Sahkari Bank Maryadit, Shajapur, but the same was returned with the memorandum having remark "insufficient funds". It was alleged that it is informed by the Nagrik Sahkari Bank to respondent on 23.11.2006. Thereafter, the respondent issued a notice to the petitioner. Further case of prosecution was that the said cheque was deposited by the respondent No. 1 with Nagrik Sahkari Bank Maryadit, Shajapur, but the same was returned with the memorandum having remark "insufficient funds". It was alleged that it is informed by the Nagrik Sahkari Bank to respondent on 23.11.2006. Thereafter, the respondent issued a notice to the petitioner. It was alleged that petitioner has committed an offence punishable under Section 138 of N.I. Act. It was prayed that after taking cognizance, the petitioner be convicted. After taking cognizance, the petitioner was served with the notice of the Court. After framing of charges and also after recording of evidence, the learned Trial Court convicted the petitioner against which an appeal was filed by the petitioner, which was allowed in part by maintaining the conviction but reducing the fine amount of Rs. 1,00,006/- to Rs. 10,000/-, hence both the parties have preferred the petition. 5. Mr. Manoj Saxena, learned Counsel for the petitioner in Criminal Revision No. 185/2009 argued at length and submits that learned Courts below has convicted the petitioner 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. 6. Learned Counsel for the petitioner further submits that as per the complaint, the alleged transaction of sale of pipe took place on 14.10.2006 while the alleged cheque was issued on 25.10.2006, there is a variance between the pleadings and proofs. It is submitted that no documentary evidence has been produced by the respondent No. 1 in support of the alleged transaction. For this contention, reliance is placed on a decision of M/s. Narayana Menon @ Marti v. State of Kerala and Anr. 2006(4) MPLJ 97, wherein the Hon'ble Supreme Court has observed that if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of N.I. Act. 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 set aside. 7. Mr. 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 set aside. 7. Mr. Vivek Dalai, learned Counsel for the respondent No. 1 submits that the impugned judgment passed by the learned Appellate Court is illegal. It is submitted that when the learned Appellate Court confirmed the conviction of the petitioner under Section 138 of N.I. Act, it was the duty of the Appellate Court not to interfere in the punishment awarded by the learned Trial Court. It is submitted that the petitioner himself has admitted that he has issued the cheque against the price of goods, which was purchased from the shop of respondent No 1. In the facts and circumstances of the case no illegality has been committed by the learned Courts below in convicting the petitioner for an offence punishable under Section 138 of N.I. Act. It is submitted that petition be allowed and the judgment passed by the learned Appellate Court be modified to the extent it relates to sentence till rising the judgment of learned Trial Court. 8. From perusal of the record, it is evident that to prove the case, respondent No. 1 has filed the documents, which are marked as Ex. P/l, which is a cheque of Rs. 85,000/-, Ex. P/2 memorandum issued by the Bank with a remark 'insufficient funds', Ex. P/3 is the memorandum issued by the Bank to the respondent No. 1 whereby Ex. P/2 was sent, Ex. P/4 is the notice while Ex. P/5 to Ex. P/8 are the postal receipts and Ex. P/9 to Ex. P/l2 are registered notices sent to the petitioner returned unserved with certain postal remarks. Apart from the documentary evidence, the respondent No. 1 has examined while the petitioner has examined himself under Section 313 of Cr.P.C, wherein, it has been stated by the petitioner that petitioner has purchased the goods of Rs. 20,000/- from the shop of the respondent No. 1 and paid a sum of Rs. 10,000/- as cash and also gave a blank cheque. It was alleged that rest of the amount was also paid by the petitioner to the respondent No. 1, but in spite of that, the cheque was not returned by the respondent No. 1. 9. 20,000/- from the shop of the respondent No. 1 and paid a sum of Rs. 10,000/- as cash and also gave a blank cheque. It was alleged that rest of the amount was also paid by the petitioner to the respondent No. 1, but in spite of that, the cheque was not returned by the respondent No. 1. 9. After going through the entire evidence on record, this Court is of the view that there are some important circumstances which has not been taken into consideration by the learned Court below while deciding the case which are as under: (i) Ex. P/1 is the cheque of which the original is not on record. (ii) Ex. D/4 is the notice and Ex. D/5 to Ex. D/8 are the receipt of registry while Ex. D/9 to Ex. D/13 are the registered letters, which were returned unserved. There is nothing on record to show that infact the notices were served on the petitioner. In the complaint itself the respondent No. 1 has stated that the notices were returned unserved. (iii) In the affidavit filed by the respondent No. 1 in support of his complaint, it is stated that petitioner has purchased the steel pipe on 14.10.2006 of Rs. 85,000/- against which a cheque was issued by the petitioner on 25.10.2006 for a sum of Rs. 85,000/-. Respondent No. 1 did not bother to file any document to show that infact the goods were sold by the respondent No. 1 to the petitioner valued Rs. 85,000/-. In his cross-examination, respondent No. 1 has also admitted that he has not filed the bills in this regard. (iv) In para 17 of his cross-examination, respondent No. 1 is denied that the cheque was given on the same day on which goods were supplied. It is further stated that it is correct that the cheque was not given on that day. He has also stated that it is correct that after sale of goods no cheque was given. Thus the respondent No. 1 himself was not sure, that when the cheque was given by the petitioner. 10. From perusal of the record, it appears that all these important aspects has not taken into consideration by the learned Courts below while passing the impugned judgment, whereby the petitioner was convicted. It is true that the respondent No. 1 was the holder of negotiable instrument. 10. From perusal of the record, it appears that all these important aspects has not taken into consideration by the learned Courts below while passing the impugned judgment, whereby the petitioner was convicted. It is true that the respondent No. 1 was the holder of negotiable instrument. Since, it was the case of the petitioner that in fact no goods valuing Rs. 85,000/- was supplied to the petitioner, therefore, it was the duty of the respondent No. 1 to give some evidence to establish that in fact the alleged cheque was issued by the petitioner against the pipes, which were sold to the petitioner. 11. In view of the facts and circumstances of the case, this Court is of the view that judgment passed by the learned Courts below are not according to law and cannot be allowed to sustain. In view of this, the petition Criminal Revision No. 185/2009 filed by the petitioner stands allowed and Criminal Revision No. 199/2009 filed by the respondent stands dismissed and the judgment passed by the learned Courts below whereby the petitioner was convicted is set aside. 12. Complaint filed by the respondent stands dismissed, petitioner stands acquitted. 13. A copy of this order be placed in Criminal Revision No. 199/2009 for record purpose.