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2012 DIGILAW 1 (SIK)

Deoki Nandan Joshi v. Pramod Kumar Joshi

2012-02-29

PERMOD KOHLI

body2012
JUDGMENT KOHLI, J. (1) This appeal under Section 378 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 13.05.2011 passed by the learned Sessions Judge, East and North Sikkim at Gan-gtok, whereby the judgment dated 23.12.2010 of the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok regarding the conviction and sentence against the respondent has been set aside, and the respondent acquitted of the charge. (2) Briefly stated the facts leading to filing of present appeal are noticed hereinafter:- (3) The present appellant filed a Private Complaint Case No. 2 of 2004 under Section 138 of the Negotiable Instruments Act, 1881 on 15.02.2003 against the respondent before the Court of Chief Judicial Magistrate, East and North Sikkim at Gangtok on the plea that the respondent issued a cheque bearing No. 0088891 dated 07.11.2002 drawn on the State Bank of India, Gangtok branch, Sikkim for a sum of Rs. 15,50,000/- (Rupees fifteen lacs fifty thousand) in favour of the complainant in lieu of the amount entrusted to the respondent in the year 2000 for purchase of a land at Hissar, Haryana. It was alleged that the respondent, who happens to be a relation of the complainant, was entrusted a sum of Rs. 15,50,000/- for purchase of land at Hissar, Haryana. Initially the respondent informed the complainant that the land has been purchased; however, subsequently it was revealed by him that no land has been purchased. The respondent agreed to return the amount obtained from the complainant for purchase of such land and resultantly issued the cheque in question. This cheque was presented by the complainant in December 2002 in the Canara Bank, Gangtok where the complainant was having his account. The cheque was, however, dishonoured by the State Bank of India, the banker of the respondent for which an intimation was received by the complainant. It was further alleged that the complainant contacted the respondent and he was asked to present the cheque again on the assurance that the same will be encashed. The complainant again presented the cheque in the month of December 2002 and it was again dishonoured for which intimation was received by the complainant from his banker. It was further alleged that the complainant contacted the respondent and he was asked to present the cheque again on the assurance that the same will be encashed. The complainant again presented the cheque in the month of December 2002 and it was again dishonoured for which intimation was received by the complainant from his banker. (4) It is further the case of the complainant that he presented the cheque in the month of December 2002 for the third time at the instance of the respondent and it was again dishonoured for which the intimation was recerved by the complainant on 26.12.2002. The vouchers containing the remarks of the bank indicating the reasons for such dishonouring of cheque are placed on record as Exhibits P-3, P-5 and P-6 respectively. All these three vouchers contain following endorsement: (i) "Account not traceable", (ii) "PI. furnish full a/c particulars" and (iii) "Please furnish computer A/c No.". It is further stated by the complainant that on receipt of last intimation from the bank the complainant issued legal notice dated 06.01.2003 through his Advocate making demand for the amount represented by the cheque. The notice was sent through Registered Post with A/D, however, the same was returned back un-served with the postal endorsement "house locked". The complainant accordingly filed the complaint under Section 138 of Negotiable Instruments Act, 1881against the respondent/accused. The accused on being summoned, appeared and contested the case before the Chief Judicial Magistrate, East and North Sikkim at Gangtok. The complainant besides himself appearing as a witness also tendered evidence of his father namely, Choth Mall Joshi and also summoned the Bank Managers with records from the Canara Bank and State Bank of India i.e. the bankers of the complainant and the respondent respectively. The respondent also appeared as a defence witness and denied the issuance of cheque by him as also his signatures on the same. (5) The trial Court vide its judgment dated 23.12.2010 recorded the conviction of the respondent for offence under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo simple imprisonment for a period of 2 (two) years and also awarded Rs. 25,00,000/- (Rupees twenty five lacs) as compensation to the complainant. (5) The trial Court vide its judgment dated 23.12.2010 recorded the conviction of the respondent for offence under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo simple imprisonment for a period of 2 (two) years and also awarded Rs. 25,00,000/- (Rupees twenty five lacs) as compensation to the complainant. (6) Aggrieved by the judgment of the trial Court, the respondent preferred an appeal before the learned Sessions Judge, East and North Sikkim at Gangtok being Criminal Appeal No. 01 of 2011. The learned Sessions Judge vide his judgment dated 13.05.2011 set aside the judgment and order of the trial Court convicting the respondent and acquitted him of the charge. It is against this judgment the present appeal has been preferred before this Court. (7) I have heard the learned counsel appearing for the parties at length. I have no reason to disagree with the conclusion recorded by the learned appellate Court in the impugned judgment. The trial Court ordered conviction of the respondent merely on the statement of PW 4, the Manager of State Bank of India, who deposed that the accused/ respondent had opened the account No. C/8215 with the State Bank of India, Gangtok Branch in the year 1984 and this account remained operational only up to the year 1993. His further statement is that in the year 1993 when the account became un-operational, only Rs. 47/ - were lying in the account. Thereafter, the account holder never transacted with the Bank. It is relevant to note that none of the vouchers (intimations) issued by the State Bank of India to the complainant through his banker, Canara Bank recorded either "insufficiency of the fund" or "the arrangement exceeds amount presented by cheque". The intimations recorded by State Bank of India have been noticed hereinabove. The Bank Manager when specifically asked about the insufficiency of the fund has stated that even if there had been a computerized account the cheque could not be honoured for want of funds in the account. It is this statement of the Bank Manager which seems to have persuaded the learned Chief Judicial Magistrate to record conviction. (8) The learned appellate Court, however, noticed that the conviction and sentence recorded by the trial Court were contrary to the evidence on record particularly Exhibits P-3, P-5 and P-6. To arrive at this conclusion the appellate Court has noticed the evidence. (8) The learned appellate Court, however, noticed that the conviction and sentence recorded by the trial Court were contrary to the evidence on record particularly Exhibits P-3, P-5 and P-6. To arrive at this conclusion the appellate Court has noticed the evidence. (9) I have also carefully gone through the evidence on record particularly that of the complainant himself. It is admitted fact that the cheque relied upon by the complainant contained the signature of the respondent though denied by him. However, all other particulars including date, name, etc. have been filled up by the complainant through his father. This is a specific admission in the complainant's statement. It has also come on record that the complainant altered the cheque by entering the computerized account number which was later blurred/ erased. The Bank Manager in his statement before the Court specifically stated that the respondent was never allotted any computerized account number. The complainant and his father P W-2 have tried to explain that they had obtained computerized account number from the respondent and incorporated the same in the cheque. This clearly establish that the complainant and his father, PW-2 tampered with the cheque by incorporating some imaginary computerized account number which never existed. The name and date having been filled up by the complainant, the cheque said to be signed by the respondent cannot be said to have been drawn by the respondent in accordance with law. Section 138 of the Negotiable Instruments Act, 1881 requires the cheque to be drawn by the person issuing means that the cheque should be duly filled in with the name of the person in whose favour the cheque is drawn with date and necessary particulars. Except the statement of the complainant and his father, there is no evidence to establish that the particulars of the cheque were filled in by the complainant and his father at the instance and in presence of the respondent. There is another important aspect that the cheque has been presented three times with the bank though within six months from the date entered by the complainant. It has been stated by the complainant that when the cheque was first time dishon-oured he contacted the respondent who assured that the cheque will be honoured and asked him to present again and after the second dishonour again the same statement was attributed to the respondent. It has been stated by the complainant that when the cheque was first time dishon-oured he contacted the respondent who assured that the cheque will be honoured and asked him to present again and after the second dishonour again the same statement was attributed to the respondent. It is stated by the complainant that every time he was asked by the respondent to present the cheque over telephone. The respondent in his explanation tendered under Section 313 Cr. EC. as also statement made as a defence witness specifically denied any contact with the complainant and his father over telephone. The complainant has not placed on record any evidence including the record of the telephone calls between the complainant, his father and the respondent to at least prima facie prove that there was some contact between them during the relevant time. Comlainant has failed to prove that the respondent had voluntarily and willingly drawn cheque in his favour. It is also not established that cheque was dishonoured for insufficiency of funds or cheque exceeds the amount arranged to be paid from that account. Vouchers issued by the banker of the respondent did not indicate that the cheque was dishonoured for insufficiency of funds or the cheque exceeds the amount arranged to be paid from the account. The fact that the account remained un-operational since 1993, further suggests that the complainant has manipulated the cheque by inserting the date and name etc. of the respondent to lodge the complaint. The judgment of the learned Sessions Judge deserves no interference in exercise of the appellate jurisdiction in the present case. (10) This appeal accordingly fails and is hereby dismissed. Appeal dismissed.