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2009 DIGILAW 916 (MP)

Jitendra v. Joaib Ali

2009-08-03

N.K.MODY

body2009
JUDGMENT : N.K. Mody, J. 1. Being aggrieved by the judgment dated 23.1.2009 passed by III Additional Sessions Judge, Dewas in Cr.A. No. 210/08 whereby the judgment dated 27.9.2008 passed by JMFC, Dewas in Criminal Case No. 1991/07 whereby the petitioner was convicted under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as "NI Act") with a direction to pay a sum of Rs. 30,000/- as fine, failing which sentence was awarded for a period of two months, was maintained, the present petition has been filed. 2. Short facts of the case are that the respondent filed a complaint under Section 138 of NI Act on 1.6.2007 wherein it was alleged that the respondent is an Iron Merchant and is doing his business in the name and style M/s. National Iron Traders, while petitioner is doing his business in the name and style M/s. Gayatri Advertising. It was alleged that in a commercial transaction petitioner was indebted to the respondent for a sum of Rs. 20,000/-, against which a cheque of Rs. 15,000/- was issued by the petitioner on 15.9.2006 of Saraswat Co-operative Bank Ltd. in favour of respondent. It was alleged that the said cheque was presented by the respondent for collection through his Banker on 8.2.2007 but the same was returned along with memorandum dated 11.2.2007 bearing remark "insufficient funds". It was alleged that thereafter notice was issued on 28.2.2007 of which acknowledgement was not received by the respondent, therefore, a complaint was lodged by the respondent on 11.4.2007. In response to it, a certificate of service was sent by the Post Office on 23.5.2007, according to which notice was duly served on the petitioner on 13.3.2007. It was alleged that in spite of receipt of notice neither it was replied nor the cheque amount was paid, hence the petitioner has committed an offence which is punishable under Section 138 of NI Act. It was prayed that after taking cognizance petitioner be convicted. After taking cognizance and also after securing presence of the petitioner charge was framed and after recording of evidence petitioner was convicted, against which an appeal was filed by the petitioner which was dismissed and the impugned judgment was maintained, hence this petition. 3. It was prayed that after taking cognizance petitioner be convicted. After taking cognizance and also after securing presence of the petitioner charge was framed and after recording of evidence petitioner was convicted, against which an appeal was filed by the petitioner which was dismissed and the impugned judgment was maintained, hence this petition. 3. Learned Counsel for the petitioner argued at length and submits that the impugned judgments passed by the learned Courts below are illegal, incorrect and deserves to be set aside. It is submitted that the complaint was not filed within the statutory period and was barred by 33 days. It is submitted that learned Courts below committed error in condoning the delay, while there was no satisfactory ground for the same. It is submitted that the alleged cheque was in security and the complainant has admitted this fact in his cross-examination, but in spite of that learned Courts below committed error in convicting the petitioner. For this contention reliance is placed on a decision of this Court in the matter of Mujeeb Husain @ Sonu v. Ismail s/o Noorbaksh Musalman III (2009) BC 112 : 2009(2) MPLJ 285 , wherein in a case where cheques issued by the petitioner by way of security and not towards any amount due to the complainant it was held that it would not come within the purview of Section 138 of N.I. Act. 4. On the strength of aforesaid decision, learned Counsel for the petitioner submits that since the respondent has admitted in his cross-examination that the cheque was in security of the loan amount, therefore, both the Courts below committed error in convicting the petitioner. It is submitted that the impugned judgments passed by the learned Courts below are illegal, incorrect and deserves to be set aside. It is submitted that petition filed by the petitioner be allowed. 5. Learned Counsel for the respondent submits that after due appreciation of evidence the learned Courts below passed the judgment, which requires no interference. It is submitted that respondent has never admitted that the cheque was issued in security of the loan amount. It is submitted that the burden to prove that the cheque was issued in security was on the petitioner, but the petitioner has failed to adduce any evidence in that regard. It is submitted that respondent has never admitted that the cheque was issued in security of the loan amount. It is submitted that the burden to prove that the cheque was issued in security was on the petitioner, but the petitioner has failed to adduce any evidence in that regard. It is submitted that in the facts and circumstances of the case the law laid down in the matter of Mujeeb Husain @ Sonu (supra) is not applicable in the present case. It is submitted that, the petition filed by the petitioner be dismissed. 6. From perusal of the record it is evident that in compliance of the judgment passed by the learned Trial Court neither petitioner deposited the cheque amount nor any application for suspension of sentence was filed before the learned Appellate Court. Before this Court also petitioner has not applied for suspension of sentence. Without complying with the judgment passed by the learned Courts below the present petition has been filed by the petitioner. 7. So far as delay is concerned, respondent has stated in the complaint that since the respondent was not having the acknowledgement of service of notice, therefore, respondent made a complaint to the concerned Post Office on 11.4.2007 and after receipt of acknowledgement vide letter dated 23.5.2007 the complaint was filed on 1.6.2007 with a prayer to condone the delay and after due appreciation of evidence both the Courts below have found that the respondent was having sufficient ground for not filing the complaint in time. This Court is also of the opinion that since the respondent was not having acknowledgement, therefore, the delay on the part of respondent was based on bona fides which has rightly been condoned by the learned Courts below. 8. So far as merits of the case is concerned, undoubtedly the cheque was issued by the petitioner in favour of respondent. The only defence of the petitioner was that the cheque was issued in security. The burden was on the petitioner to prove the fact. No evidence has been adduced by the petitioner to prove this fact. In the statement of respondent also respondent has never admitted that the cheque was issued in security. In the facts and circumstance of the case, no illegality has been committed by the learned Courts below in convicting the petitioner. No evidence has been adduced by the petitioner to prove this fact. In the statement of respondent also respondent has never admitted that the cheque was issued in security. In the facts and circumstance of the case, no illegality has been committed by the learned Courts below in convicting the petitioner. In view of this, petition filed by the petitioner so far as it relates to the conviction of the petitioner under Section 138 of NI Act is concerned, petition has no merits and deserves to be dismissed. So far as amount of fine is concerned, cheque was of Rs. 15,000/- and the learned Court below has awarded double of the cheque amount, which appears to be on higher side. 9. In the facts and circumstance of the case, the amount of fine is reduced from Rs. 30,000/- to Rs. 20,000/-, which shall be payable to the respondent upon depositing by the petitioner within a period of two months. Failing which the petitioner shall be liable for jail sentence and also for the fine amount as awarded by the learned Courts below. 10. With the aforesaid observations, petition stands disposed of. C.C. as per rules.