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2011 DIGILAW 1271 (MP)

Gajraj Singh v. Harish Chand

2011-11-10

U.C.MAHESHWARI

body2011
JUDGMENT : Per : U.C.Maheshwari J.:- The applicant/accused has filed this revision under section 397/401 of the Cr.P.C, being aggrieved by the Judgment dated 29.09.2006 passed by the Special Judge/Addl. Sessions Judge, Sagar in Cr.A.No.184/06 affirming the judgment dated 3.7.06 passed by the JMFC, Sagar in Cr.Case No.706/04 convicting and sentencing the applicant under section 138 of the Negotiable Instrument Act (in short 'the Act') for RI 1 month with fine of Rs.85000/-, in default of depositing such fine amount further RI 15 days, has been awarded. Out of the aforesaid fine amount Rs.75000/- was directed to be given to the respondent/complainant. 2. The facts giving rise to this revision in short are that respondent herein filed a private complaint against the applicant for prosecution under section 138 of the Act. As per averment of such complaint, the applicant herein, in consideration of Rs.50,000/-, had given him the impugned cheque bearing No.8213242 dated 8.9.02. After receiving the cheque, the respondent deposited the same with his banker for its collection but he received such cheque from the banker with a memo having an endorsement that sufficient fund is not available in the account of the applicant and, accordingly such cheque was dishonoured, on which, within the prescribed period, a demand notice was also given by the respondent to the applicant. But inspite service of such notice within the prescribed period, neither any reply of such notice was given by the applicant nor the consideration of such cheque was paid, on which, by adopting the procedure provided under the Act, the impugned complaint was filed by the respondent to prosecute the applicant under section 138 of the Act. 3. After recording the evidence under section 200 and 202 of the Cr.P.C, the cognizance of such offence was taken by the trial court against the applicant and he was summoned. On his appearance, the plea was recorded. The applicant abjured the guilt, on which, the trial was held, in which, after recording the evidence of the respondent in support of the complaint and also recording the accused/statements of the present applicant, he was also extended an opportunity to adduce the evidence in support of his defence. On his appearance, the plea was recorded. The applicant abjured the guilt, on which, the trial was held, in which, after recording the evidence of the respondent in support of the complaint and also recording the accused/statements of the present applicant, he was also extended an opportunity to adduce the evidence in support of his defence. But inspite giving continuous two opportunities, he did not adduce any evidence, on which, his right to lead the evidence was closed and after hearing the arguments of the parties, the case was decided in which the applicant has been convicted and sentenced as stated above. On filing the appeal, by affirming the impugned judgment, the same was also dismissed, on which, the applicant has come forward to this court with this revision. 4. Shri Sampurna Tiwari, counsel for the applicant after taking me through the record of the trial court as well as the judgment of both the courts below along with some proceedings of the trial court said that sufficient and ample opportunity to adduce the evidence was not given to the applicant by the trial court and such right has been closed under wrong premises. In continuation, he said that whatsoever evidence has been led on behalf of the respondent, on proper appreciation of the same, it could not be held that the alleged cheque was given by the applicant to the respondent in consideration of some money or in consideration of any transaction. Infact, such cheque was never handed-over by the applicant to the respondent but after settlement of other earlier cheque, with dishonest intention and practicing fraud, the respondent had obtained the disputed cheque from his residence from his daughter, but such aspect has not been considered by both the courts below while holding the conviction and on affirming the same by the appellate court. He also argued that at the time of delivery of the cheque, the coloum of date and amount of such cheque was blank and same was filled by the respondent without his approval and consent. So, in such premises, such cheque could not be treated to be admissible under the law for any purpose or for maintaining the impugned conviction of the applicant. So, in such premises, such cheque could not be treated to be admissible under the law for any purpose or for maintaining the impugned conviction of the applicant. In addition it was argued that the above mentioned earlier cheque was given to the respondent by the applicant in connection of some agreement to sale with respect of some property for which some advance amount was taken by the applicant earlier from the respondent and the same was returned after obtaining the earlier cheque and there was no any subsequent transaction between the applicant and the respondent. With these submissions, he prayed for setting aside the impugned judgments and acquitting the applicant, by admitting and allowing this revision. 5. On the other hand, responding the aforesaid argument, by justifying the impugned judgment as well as the conviction and sentence of the applicant, Shri Mahendra Choubey, counsel for the respondent said that the findings of the courts below, being based on proper appreciation of the evidence and also taking into consideration the unrebutted evidence of the respondent, do not require any interference at this stage. In continuation he said that whatsoever objections have been raised by the applicant in his argument, in the lack of any evidence on his behalf, in view of the provision of presumption regarding negotiable instrument enumerated under section 118 of the Act, the same are not sustainable. He also argued that mere reply of some questions in the accused-statement by the applicant could not be treated to be the admissible evidence of his defence unless the same is supported by examining any of the witnesses in support of such contention or examining himself for the same and prayed for dismissal of this revision. 6. Having heard the counsel at length, keeping in view their arguments advanced, after perusing the record along with the impugned judgments, I am of the considered view that this revision does not involve any legal question requiring any interference at this stage under the revisional jurisdiction of this court. 6. Having heard the counsel at length, keeping in view their arguments advanced, after perusing the record along with the impugned judgments, I am of the considered view that this revision does not involve any legal question requiring any interference at this stage under the revisional jurisdiction of this court. As such, the approach of both the courts below are apparently based on appreciation of the evidence available in the record and, as per trite law if any legal question is raised by either of the parties in the revision then that could be resolved under the revisional jurisdiction of this Court but in order to extend the benefit to the applicant or to change the probable approach of the courts below, reappreciation of the evidence could not be carried out under the revisional power of this court. 7. On perusing the record, I have found that the impugned cheque is signed by the applicant in which clear-cut the sum of consideration and the date of its issuance, are mentioned. It also appears that within the prescribed period, the cheque was deposited by the respondent with his banker from where it was returned dishonoured with a memo having an endorsement stating that no sufficient fund is available in the account of the applicant. Thereafter, within the prescribed period, a demand notice was issued by the respondent which was neither replied by the applicant within the prescribed period nor the amount of such cheque was paid by him to the respondent and thereafter within the prescribed period under the Act, the impugned complaint was filed. On holding the trial of the case, the respondent has successfully proved his case by adducing the evidence and marking exhibits on the aforesaid cheque and relevant papers, on which, the accused-statement of the applicant was recorded. Although, in reply of some questions in the accused statement, the applicant has stated his defence saying that the cheque was never handed-over by him by mentioning the date and the amount in the same but it is apparent on the record that in support of such reply, inspite extending the opportunity, no evidence was adduced on behalf of the applicant. Even the applicant has not entered in the witness box to say his version on oath. Even the applicant has not entered in the witness box to say his version on oath. In such circumstances, there was no option with the trial court except to draw the presumption under section 118 of the Act that at the time of delivery of the cheque to the respondent, the same was signed, dated and also the amount was mentioned in it. In view of the language of section 118 of the Act, in the lack of any rebuttal and the evidence of the respondent, the court is bound to draw the presumption of all the aforesaid things with respect of the cheque in favor of the respondent and against the applicant. In such premises, both the courts have not committed any error or perversity to pass the impugned judgment of conviction against the applicant. 8. Apart the above, I would like to mention here that on behalf of the applicant to support the version that the cheque was obtained from his daughter by the applicant, he did not make any effort to examine his daughter before the court in this regard. Even, he himself has not entered in the witness box to say the same as stated above. These circumstances are also sufficient to draw adverse inference against the applicant that the cheque was given by the applicant himself with his signature to the respondent to pay the outstanding sum of consideration. Therefore, in such premises, also the courts below have not committed any error in passing the impugned judgment. 9. In the aforesaid premises, I have not found any perversity, illegality, irregularity, infirmity or anything against the propriety of the law in the impugned judgments of the courts below, holding conviction and sentence against the applicant under section 138 of the Act, requiring any interference under the revisional jurisdiction of this Court. Consequently, by affirming the findings of the impugned judgments, this revision being devoid of any merits, is hereby dismissed. 10. In view of such dismissal all the interim orders passed earlier in the present matter have come to end automatically.