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2009 DIGILAW 1368 (JHR)

Pradeep Kumar Jha v. State of Jharkhand

2009-11-04

JAYA ROY

body2009
Order This is an acquittal appeal. In this case leave to file an appeal has been granted by a Division Bench of this court vide .order dated 3.9.2008 passed in Cr M.P.(D.B.) 170 of 2008. 2. The prosecution case as appeared from the written cam plaint filed by the complainant/appellant against the respondent Na. 2 in brief is that the complainant was well known with the respondent no. 2 and they had business relationship between them. They were working together but after same time relationship between them deteriorated and litigation started between them at Ghatshila Court bearing No. C/1-28/96. On intervention of the friends and the relatives, bath the parties compromised the case outside the court and it was decided that the accused respondent no. 2 will pay to the complainant a sum of Rs. 3,50,000/- (Three Lakhs Fifty thousand) and the complainant will not take interest or proceed in the case According to the compromise, accused Baldeo. Singh issued a cheque of Rs. 3,50,000/- (Three Lakhs Fifty thousand) an 2.5.2005, bearing Na. 112627 Central Sank of India, Jamshedpur. When the complainant presented the aforesaid cheque far encashment through his Bankers i.e. Bank of Baroda, Golmuri Branch, Jamshedpur, the Bankers of accused the Central Bank of India, Jamshedpur, dishonoured the aforesaid cheque issued by the accused vide cheque Return Memo dated 3.5.2005 showing insufficient fund of the accused. After receipt of the aforesaid information from the Bank, the complainant informed the same to the accused but the accused requested him to present the said cheque once again an or after 15.5.2005. Accordingly, the complainant presented the said cheque an 16.5.2005 but this time too the Bankers of the accused dishonoured the said cheque stating therein "insufficient fund" vide Cheque Return Mema dated 20.5.2005. This information was delivered to the complainant an 30.5.2005. 3. Finally the complainant sent a legal notice dated 11.6.2005 through registered past to the accused demanding payment of the cheque amount i.e. Rs. 3,50,000/- within fifteen days from the receipt of the said notice. The accused received the said legal notice on 15.6.2005. As the accused did not pay any amount to the complainant, he filed in the instant complaint petition before C.J.M., Jamshedpur, being Complaint Case Na. 885 .of. 2005. 4. After trial, the Judicial Magistrate considering the argument of the parties and considering the oral and documentary evidences, convicted the accused respondent no. As the accused did not pay any amount to the complainant, he filed in the instant complaint petition before C.J.M., Jamshedpur, being Complaint Case Na. 885 .of. 2005. 4. After trial, the Judicial Magistrate considering the argument of the parties and considering the oral and documentary evidences, convicted the accused respondent no. 2 under Section 138 of the Negotiable Instruments Act and sentenced him to undergo R.I. far six months coupled with payment of compensation of Rs. 80,000/- (Eighty thousands) to the complainant in terms of provision stipulated under Section 357(3) of the Cr.P.C. The accused Respondent Na. 2 challenged the said conviction and sentence by filing an appeal i.e. Criminal Appeal Na. 110 of 2007 before the Sessions Judge. The appellate court considering the case allowed the said appeal and acquitted the accused appellant from the charge under Section 138 of the N.I. Act. 5. Mr. Rajiv Ranjan appearing an behalf of the complainant/appellant has submitted that the appellate court is wholly erred in. acquitting the accused respondent no. 2 on the ground that the respondent no. 1 (who is complainant appellant in this acquittal appeal) has measurably failed to establish the fact that the cheque in question was issued in discharge of legal debt or liability and further erred in holding that the provision of Section 138 of the Negotiable Instrument Act has no application in the facts and circumstances of the case. 6. Mr. Rajiv Ranjan has submitted that the impugned judgment of the appellate court cannot be sustained at all as the judgment erroneously proceed on the basis that the burden of proving the fact that the cheque in question was issued in discharge of legal debt or liability is on the complainant. It is further submitted that the learned appellate court has not considered the Sections 118 and 139 of N.I. Act. In this respect he has referred the following three decisions of the Hon'ble Apex Court:- (i) (2001)8 S.C.C. Page 458. (ii) (2002) East. Cr.C. Page 65(SC). (iii) (2001)6 S.C.C. Page 16. 7. In all the three cases I find the Hon'ble Apex Court has very specifically held that in complaints under Section 138 of the N.I. Act, the court has to presume that the cheque has been issued for debt or liability and burden lies on the accused to prove that it had not been issued for debt or liability. 8. Mr. In all the three cases I find the Hon'ble Apex Court has very specifically held that in complaints under Section 138 of the N.I. Act, the court has to presume that the cheque has been issued for debt or liability and burden lies on the accused to prove that it had not been issued for debt or liability. 8. Mr. S.K. Murari, the learned counsel for the respondent no. 2 heavily relied on the decision of the Apex Court reported in 2008(1) Crimes Page 227(SC) Krishna Janardhan Bhat vs. Dattatraya G. Hege. In my 9pinion the fact of this reported case and fact of the case at hand is totally different at the base of it as such according to me the aforesaid decision of the Apex Court cited by Mr. Murari is not applicable in the present case. 9. It is significant to mention that at para-6, page-5 of the impugned judgment the appellate court below passed in Cr. Appeal No. 110/2007 has stated:- "There is no compromise available on the record which could substantiate the contention of complainant.... " The appellate court below has completely misdirected himself in stating this. In view of the fact that the complainant has stated in his affidavit sworn on 4.5.2006 by way of chief in para-4:- "That on intervention of friends and relatives both the party compromise the case outside the court and it was decided that complainant of the case will not take interest in case which was pending at Ghatshila court." 10. Ext.-A is the certified copy of the judgment passed by Sub-Divisional. Magistrate, Ghatshila in C/1 Case No. 28 of 1996 dated 27th November, 2002 of Ghatshila case. I find from the said judgment (Ext.-A) neither the complainant Pradeep Kumar Jha (who is complainant in the present case) nor witnesses i.e. C.Ws. 1, 2, 3, 5 and 6 have been cross-examined after charge by the side of the complainant which practically supports the complainant's case at least to the extent that both the parties have compromised the case outside the court and it is decided between them that the accused will pay him some amounts and the complainant will not proceed in the said case. I further find from the paragraph no. 12 of the said judgment that only on that very ground, the accused (the present respondent no. 2) was acquitted in the said case i.e. Camp. I further find from the paragraph no. 12 of the said judgment that only on that very ground, the accused (the present respondent no. 2) was acquitted in the said case i.e. Camp. C/1Case No: 28 of 1996/T.R. No. 420 of 2002. The para-12 of the said judgment run as follows:- "12. On perusal it appears that there is material on records as per evidence of C.Ws. 1, 2, 3, 5, 6 and. 7, but since the said C.Ws. have not been cross-examined by the defence and defence have got no opportunity to cross-examine them, hence, lam of my opinion that there is no evidentiary value of such witnesses in this case at all owing to lack of their cross-examination. It also appears from perusal of the record that the complainant in this case is completely absent since 14.8.2001 to till yet and learned counsel for the complainant has endorsed in column of order-sheet that "no consult with the client" on 5.8.02 and "no instruction" on 18.11.02 which shows that the complainant has no interest to proceed with the case and as per material it also appears that the complainant has not proved his case beyond all reasonable doubts." Therefore, no doubt this circumstance clearly proves that only due to the fact that compromise was made outside the court between the parties the complainant deliberately did not pursue the said case and the case ended in acquittal of Baldeo Singh (the present respondent no. 2). It is also very clear that the said cheque was issued by the respondent no. 2 in discharge of the debt or liability and in view of this fact the Section 138 of N.I. Act is also attracted in this case. 11. In the instant case, I find from the lower court records that the defence has not examined any witness on his behalf, only the accused has been examined in terms of Section 315 of the Cr.P.C. The accused has accepted in his statement under Section 315 Cr.P.C. that cheque belongs to his account but he has not given the said cheque to the complainant and he cannot say from where the complainant has managed the said cheque. He has further stated that he has not filled up the amount in the said cheque. He has further stated that he has not filled up the amount in the said cheque. I find the accused has further stated in his statement under Section 315 Cr.P.C. that during course of the business transaction some papers including two cheques signed by him, were disappeared from his office and the aforesaid cheque is one of the said two missed cheques. He has come to know this fact only after getting the notice and he has replied through his Advocate to the complainant and the copy of the reply of that notice alongwith the postal receipt is also missing. He has further deposed that he did not file any case or Sanha for missing of the aforesaid papers and cheques from his office. It is an unusual conduct of a prudentman-businessman as such it cannot be believed. 12. Considering all these facts and circumstances of the case and the law laid down by the Honoble Apex Court in this regard, in my view the impugned judgment of the appellate court cannot be sustained at all. Accordingly, I set aside the impugned judgment dated 4.12.2007 passed by the Additional Sessions Judge F.T.C.-III, Jamshedpur, in Criminal Appeal No. 110 of 2007 and confirm the conviction awarded by the trial court passed in C/1-885 of 2005 the Judicial Magistrate, 1st Class, Jamshedpur. 13. Regarding the sentence, in my opinion imposition of the fine upon the accused respondent no. 2 will be sufficient instead of sending him jail again after such a long time. Therefore, I modify the sentence and instead of imprisonment, direct him to pay a sum of rupees one lakh fifty thousand (Rs. 1,50,000/-) which the respondent no. 2 will deposit in the trial court within a period of three months from the date of this judgment and out of which the trial court will pay a sum of rupees eighty thousand (Rs. 80,000/-) to the complainant/appellant in terms of provision under Section 357(3) of the Cr.P.C. and in default the sentences imposed by the trial court will be maintained. Accordingly, the appeal is allowed with the aforesaid modification.