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Madhya Pradesh High Court · body

2013 DIGILAW 1179 (MP)

Yashwant Singh v. Shailendra Singh

2013-09-27

M.K.MUDGAL

body2013
ORDER M.K. Mudgal, J. 1. The petitioner has filed this Criminal Revision under Section 397 of Code of Criminal Procedure against the judgment dated 31.10.2008 passed by the Court of I Additional Sessions Judge Guna in Cr. Appeal No. 353 of 2008 affirming the conviction in the judgment dated 6.9.2008 passed by the Court of Chief Judicial Magistrate Guna in Cr. Case No. 356 of 2007 convicting the accused under section 138 of Negotiable Instrument Act and sentencing him to undergo rigorous imprisonment for one year and awarding the compensation under Section 357(3) of the Cr.P.C. of Rs. 3,00,000/- and modifying the said compensation into Rs. 2,10,000/- as awarded by the trial Court, to be paid to the complainant with default stipulation mentioned in the impugned judgment. In brief, the facts of the case are that, a complaint under Section 138 of the Negotiable Instrument Act was filed by the respondent/complainant against the petitioner/accused regarding the cheque of Rs. 1,50,000/- Ex. P/3 of Gadha Cooperative Bank Branch Hatt Road Guna bearing No. 047813 given by him to the complainant which was returned by Madhya Bharat Gramin Bank Branch Cantt vide memo Ex. P/5 without payment on 10.1.2007 as there was no sufficient fund in the account of the petitioner/accused. A demand notice Ex. P/2 was sent by the complainant through his Advocate on 20.1.2007 to the petitioner by registered AD post Ex. P/1 which was received by the accused on 22.1.2007 vide the receipt of acknowledgment Ex. P/4 but in spite of that fact, neither reply of the notice was given by the accused nor the amount of cheque was paid. Therefore the said complaint was filed against the accused. 2. Denying the allegation of the complaint, the accused has claimed that he has been falsely implicated in the case owing to the enmity and the cheque was not given to the complainant whereas, it was given to Kalyan Singh who is maternal uncle of the complainant. The said cheque was obtained from Kalyan Singh by the complainant. During trial, the statement of the complainant was recorded. Learned trial Court after recording the evidence and considering the documents placed on record, convicted the accused under Section 138 of Negotiable Instrument Act and sentenced him to undergo one year's RI with compensation of Rs. 3,00,000/- to be paid by him to the complainant. 3. During trial, the statement of the complainant was recorded. Learned trial Court after recording the evidence and considering the documents placed on record, convicted the accused under Section 138 of Negotiable Instrument Act and sentenced him to undergo one year's RI with compensation of Rs. 3,00,000/- to be paid by him to the complainant. 3. Feeling aggrieved by the judgment of conviction and order of sentence, the petitioner-accused preferred a criminal appeal before the I ASJ, Guna which has been partly allowed modifying the sentence awarded by learned trial Court as stated herein above. Hence, present criminal revision has been filed. 4. The learned counsel for the petitioner submits that the notice Ex. P-2 was not duly served on the petitioner as the alleged signature of the petitioner on the acknowledgment Ex. P-4 is quite different from the signature on the cheque Ex. P-3. Since the notice was not served to the petitioner, the offence under Section 138 of the Negotiable Instrument Act cannot be made out against him. The said contention does not appear to be acceptable as the notice Ex. P-2 was sent through registered post receipt Ex. P-1 and the said notice was received by the petitioner through the acknowledgment Ex. P/4. The petitioner/accused has not claimed that the address written on Ex. P-4 does not belong to him. Apart from that he has not disclosed in his defence any other residential address. 5. In view of the facts, it was not necessary for the complainant that the statement of postman, through whom the notice was delivered to the petitioner was got recorded by him. Since it was registered envelope and delivered on the correct address of the petitioner/accused, it would be presumed that the notice Ex. P-2 was served to the petitioner/accused. 6. After receiving the said notice, the accused did not reply and deny the contents of the same. This makes it clear that the accused had no ground to deny the liability of the cheque Ex. P-3. Apart from the said fact, he even did not disclose that he had not borrowed the money i.e. Rs. 1,50,000/- from the complainant. Indisputably, the accused has not denied any where on record that the cheque Ex. P-3 was not signed by him and it does not belong to his saving account. 7. P-3. Apart from the said fact, he even did not disclose that he had not borrowed the money i.e. Rs. 1,50,000/- from the complainant. Indisputably, the accused has not denied any where on record that the cheque Ex. P-3 was not signed by him and it does not belong to his saving account. 7. In para 11 of the complainant's statement, the accused tendered in his defence a few suggestions during cross-examination wherein he stated that he had business of Pepsi soft drinks with his maternal uncle Kalyan Singh who was running the agency of Pepsi and the cheque was given to him. The complainant has denied all such suggestions given by the accused. However, neither evidence has been produced by the accused in his defence nor was it deposed by him during the examination under Section 313 of the Cr.P.C. for the corroboration of his defence. Mere suggestions have no significance to rebut the complainant's evidence. Earlier when the notice Ex. P-2 was received by the accused, it was neither replied nor were it's contents rebutted by him. The aforesaid facts and circumstances lead to the conclusion that the cheque Ex. P-3 was given by the accused to the complainant and under Section 139 of the Negotiable Instrument Act. It is presumed that the cheque Ex. P-3 was given by the accused to complainant for the payment of legal debt or liability as the accused has utterly failed to negate the allegations labeled against him. 8. The learned counsel for the petitioner further contented that as per para 9 of the complainant's statement, the said amount was given to the accused for six months and before the stipulated time of six months, the said cheque was presented by the complainant in the bank for encashment after two months of the amount given to the accused. The counsel further argued that in such a circumstance the offence punishable under Section 138 of the Negotiable Instrument Act is not made out. 9. The arguments were considered. Though the complainant has admitted in his statement that the said sum was given to the accused for six months. After two months, he demanded money from the accused stating that he was in need of it. At that time, the said cheque was given to him by the accused for payment of the loan. 9. The arguments were considered. Though the complainant has admitted in his statement that the said sum was given to the accused for six months. After two months, he demanded money from the accused stating that he was in need of it. At that time, the said cheque was given to him by the accused for payment of the loan. In this connection, the complainant has not stated on record that the said cheque was given at the time of transaction and was to be encased after six months. Moreover, the accused has not deposed in this regard in his examination under Section 313 of Cr.P.C. Therefore, the contention advanced by the learned counsel for the accused has no substance. 10. Considering the recorded evidence, it is concluded that the finding of the learned appellate court as well as of learned trial court convicting the accused under Section 138 of the Negotiable Instrument Act are based on proper reasonings. Hence no interference is required in the order of conviction under Section 138 of the Negotiable Instrument Act. 11. So far as, sentence is concerned, the sentence of RI for one year awarded by both the courts below appears to be harsh as the accused is not a professional criminal. There is no evidence of his previous conviction on record. The case has been pending since 2007. Considering the facts and circumstances of the case, the awarded sentence of RI for one year is reduced into RI for two months. However, the remaining part of the impugned judgment in which the compensation has been awarded of Rs. 2,10,000/- along with stipulated default payment is hereby affirmed. 12. Therefore, partly allowing the revision and affirming the conviction of the petitioner under Section 138 of the Negotiable Instrument Act, the sentence is modified as stated above. The petitioner is directed to appear before the trial Court for serving the sentence on 28.10.2013. If he does not appear before the Court, the trial Court shall take appropriate step to secure his presence. Accordingly, this revision petition is disposed of.