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Madhya Pradesh High Court · body

2013 DIGILAW 642 (MP)

Anirudh Saini v. Piyush Agrawal

2013-05-14

N.K.GUPTA

body2013
Judgment: N.K. Gupta, J. 1. These two criminal revisions arose from the judgment dated 4.2.2011 passed by the Additional Judge to the First Additional Sessions Judge, Jabalpur in Criminal Appeal No. 317/2009, and therefore both these revisions are decided by the common order. Applicant Anirudh Saini (herein after he would be referred as "applicant/accused") was convicted for the offence under Section 138 of the Negotiable Instruments Acts (for brevity "N.I. Act") vide judgment dated 9.10.2009 passed by the JMFC Jabalpur (Shri Ajay Kumar Singh) in Complaint Case No. 28694/2006 whereby he was sentenced for two years' RI with fine of Rs. 1,000/- and compensation of Rs. 8 lakhs. In Criminal Appeal No. 317/2009 the learned First Additional Sessions Judge, Jabalpur vide judgment dated 4.2.2011 partly allowed the appeal by which the conviction was maintained, but the sentence of two years RI was altered, whereas the sentence of fine and compensation was maintained. Being aggrieved with both the judgments, the applicant/accused has filed the present criminal revision No. 367/2011. 2. On the other hand, the applicant Piyush Agrawal (herein after he would be referred as "complainant") has preferred criminal revision No. 468/2011 against the impugned judgment to set aside the impugned judgment and to maintain the sentence directed by the trial Court. 3. The complainant had preferred a complaint against the applicant/accused that the applicant/accused was involved in share marketing whereby he lost some amount, and therefore a cheque of Rs. 7,67,027/- was issued in favour of the complainant. When the cheque was submitted for its encashment, the complainant was informed that the cheque could not be encashed, because a direction of stop payment was given by the applicant/accused. Thereafter a notice of the demand was given to the applicant/accused, but he did not pay the amount of the cheque, and therefore a complaint was filed. 4. The applicant/accused has submitted a reply to the complaint that some utensils were purchased by the applicant/accused from the complainant, and therefore a payment of Rs. 1200/- was to be made to the complainant. Therefore, the applicant/accused detached the cheque from the cheque book, but it was lost during transit in Gorakhpur area on 27.10.2004. The applicant/accused came to know that the complainant has fraudulently submitted a cheque with the sum of Rs. 7,67,027/-, thereupon he directed the bank to stop the payment, as no sum was due towards the applicant/accused. Therefore, the applicant/accused detached the cheque from the cheque book, but it was lost during transit in Gorakhpur area on 27.10.2004. The applicant/accused came to know that the complainant has fraudulently submitted a cheque with the sum of Rs. 7,67,027/-, thereupon he directed the bank to stop the payment, as no sum was due towards the applicant/accused. The applicant/accused had also filed a complaint against the complainant for the offence under Section 420 of IPC. One such case was also lodged by Smt. Sobha Soni against the complainant for a cheque of Rs. 1 lakh, which was dishonoured. 5. Ultimately, the applicant/accused abjured his guilt. He took a specific plea in the defence that the complainant had mentioned the amount on the cheque in his own handwriting and no amount was due towards the applicant/accused. In defence Hoshiyar Keshav Chinoy (DW-1) was examined, whereas so many documents Ex. D-2 to Ex. D-10 were produced in support of the defence. 6. The learned JMFC, Jabalpur after considering the evidence adduced by the parties convicted and sentenced the applicant/accused as mentioned above, whereas in appeal the jail sentence was removed by the learned appellate Court. 7. I have heard the learned counsel for the parties at length. 8. The learned senior counsel for the applicant/accused has submitted that the cheque was not issued. It was stolen, and therefore its payment was stopped. The complainant has claimed that the cheque was given because of transaction done by the applicant/accused with the complainant. However, it is proved by the defence witness Hoshiyar Keshav Chinoy (DW-1) that the applicant/accused had direct transaction with the main broker and not with the sub-broker, and therefore no amount was due to be paid to the complainant. Therefore, no cheque was given to the complainant. The learned senior counsel for the applicant/accused has read the statements of various witnesses to show that no transaction took place between the applicant/accused and the complainant. The applicant/accused had lodged reports Ex. D-1 and Ex. D-6 about missing of the cheque. It was for the complainant to prove the liability upon the applicant/accused to pay the sum. In support of his contention, he has placed reliance upon the judgments of Hon'ble the Apex Court in the cases of "Raj Kumar Khurana Vs. State of (NCT of Delhi)" [ (2009) 6 SCC 72 ], "M.S. Narayana Menon alias Mani Vs. It was for the complainant to prove the liability upon the applicant/accused to pay the sum. In support of his contention, he has placed reliance upon the judgments of Hon'ble the Apex Court in the cases of "Raj Kumar Khurana Vs. State of (NCT of Delhi)" [ (2009) 6 SCC 72 ], "M.S. Narayana Menon alias Mani Vs. State of Kerala" [ (2006) 6 SCC 39 ], "Krishna Janardhan Bhat Vs. Dattatraya G. Hegde" [ (2008) 4 SCC 54 ] and "Reverend Mother Marykutty Vs. Reni C. Kottaram" [ (2013) 1 SCC 327 ]. 9. On the other hand, the learned counsel for the complainant has submitted that the transaction was admitted. The applicant/accused could not prove that his cheque was stolen. On the contrary, it was established that he issued the cheque in the name of the complainant himself, and therefore all aforesaid judgments of Hon'ble the Apex Court are not applicable in the present case due to difference of factual aspects. The complainant had lodged a complaint prior to the FIRs lodged about the lost of the cheque, and therefore the FIRs relating to lost of the cheque were nothing, but an after thought overt-act of the applicant/accused to defeat the payment. It is further submitted that looking to the conduct of the applicant/accused, he should have been punished with the jail sentence. 10. After considering the submissions made by the learned counsel for the parties, if the evidence adduced by the parties is perused, then it is apparent that a cheque Ex. P-1 for a sum of Rs. 7,67,027/- in the name of the complainant was in fact issued from the cheque book of the applicant/accused. The applicant/accused has submitted in reply to the complaint filed under Section 138 of the N.I. Act that no cheque was given to the complainant, but it was stolen and there was nothing to be paid by the applicant/accused towards the complainant. The applicant/accused has submitted an affidavit that he had lodged a report Ex. D-5 to the bank for stoppage of the payment and an FIR Ex. D-6 was also lodged at Police Station Gorakhpur, Jabalpur. He had also moved a complaint against the complainant that he had a direct relation with Mehta & Company, who was broker in the National Stock Exchange, Mumbai and no transaction took place between the applicant/accused and the complainant. D-6 was also lodged at Police Station Gorakhpur, Jabalpur. He had also moved a complaint against the complainant that he had a direct relation with Mehta & Company, who was broker in the National Stock Exchange, Mumbai and no transaction took place between the applicant/accused and the complainant. In support of his defence, Hoshiyar Keshav Chinoy (DW-1) was also examined. Initially the applicant/accused took a defence that he had to pay a sum of Rs. 1200/- towards the sale price of some utensils to the complainant, but the cheque was stolen. However, in the statement before the trial Court the applicant/accused did not mention anything about that fact that he purchased some utensils from the complainant for sum of Rs. 1200/-, and therefore it would be apparent that the applicant/accused has waived such a defence. 11. On considering the evidence given by the parties, prima facie if the cheque Ex. P-1 is perused, then it is true that it was not filled up in the handwriting of the applicant/accused. The learned senior counsel for the applicant/accused has submitted that the burden was shifted upon the complainant to prove that the cheque was issued to the complainant. In support of his contention, he has placed his reliance upon the judgment of Hon'ble the Apex Court in the case of Reverend Mother Marykutty (supra) which says that if the cheque is not in the handwriting of the accused, then it would strengthen defence version that the cheque was not issued in favour of the payee/complainant. However, the factual position of the case is different, and therefore by the fact that the cheque was not in the handwriting of the accused, no adverse effect is caused in the present case. If the cheque Ex. P-1 is perused, then it would be apparent from the cheque that initially the date of the cheque was mentioned to be 27.7.2006 and thereafter it was modified and the date 14.10.2004 was written on the cheque and the applicant/accused placed his signature on that correction in the cheque. If the cheque Ex. P-1 is perused, then it would be apparent from the cheque that initially the date of the cheque was mentioned to be 27.7.2006 and thereafter it was modified and the date 14.10.2004 was written on the cheque and the applicant/accused placed his signature on that correction in the cheque. If the blank cheque with the signature of applicant/accused was stolen, then there was no possibility that the applicant/accused would have appended his signature for the correction of the date, and therefore the story of theft of the cheque is nothing, but an after thought and after putting a future date on the cheque the applicant/accused moved various applications before the bank and the police about the theft and to stop the payment of the cheque. It is not the case of the applicant/accused that the cheque was issued to someone else or stop payment was directed, because there was a dispute of accounts between the parties. Under such circumstances, where the applicant/accused appended his signature on the modification of the cheque, clearly indicates that it was not lost but it was given to the complainant. Under such circumstances, the burden is not only shifted upon the complainant, but the applicant/accused could not discharge his burden that the cheque was not issued to the complainant. 12. The learned senior counsel for the applicant/accused has also relied upon the judgment of Hon'ble the Apex Court in the case of Raj Kumar Khurana (supra) that if the cheque was lost, then the accused cannot be convicted for the offence under Section 138 of N.I. Act. However, in the present case, it is proved that the cheque was not lost, but it was issued to the complainant by the applicant/accused after modification of its date and remaining portion of the cheque was filled up by some other person. Under such circumstances, the law laid down in the case of Raj Kumar Khurana (supra) cannot be applied in the present case. 13. Once the cheque was issued in favour of the complainant, then again the burden shifts upon the accused to prove that the sum which was mentioned in the cheque was not due towards the complainant. Under such circumstances, the law laid down in the case of Raj Kumar Khurana (supra) cannot be applied in the present case. 13. Once the cheque was issued in favour of the complainant, then again the burden shifts upon the accused to prove that the sum which was mentioned in the cheque was not due towards the complainant. In this connection, the judgment of Hon'ble the Apex Court in the case of Krishna Janardhan Bhat (supra) may be perused, in which it is mentioned that in cases of Section 138 of the N.I. Act, presumption under Section 139 of the N.I. Act may not be lead to injustice or mistaken conviction. The presumption of innocence is a human right and the doctrine of reverse burden introduced by Section 139 of N.I. Act should be delicately balanced. Such balancing acts would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same. Also in the case of M.S. Narayana Menon alias Mani (supra) Hon'ble the Apex Court has held that initially the burden of proof is on accused to rebut the presumptions under Section 139 of the N.I. by raising a probable defence. If he discharges the said burden, the onus thereafter shifts on to the complainant to prove his case. In the light of the aforesaid judgment, the burden to prove the innocence appears to be upon the applicant/accused, because his plea that his cheque was lost appears to be a falsehood. He gave a cheque after modification of its date, and therefore it was not lost. Thereafter he made so many complaints but such complaints were made only to defeat the issuance of the cheque. By such complaints, it is not proved at all that the cheque was lost. Under such circumstances, where the preliminary burden was discharged by the complainant that the applicant/accused dealt in the share market and for losses caused to him, he gave a cheque to the complainant. The cheque is not given on round figure basis but it is given for specific sum of Rs. 7,67,027/- which indicates that the cheque was issued after calculation of the loss caused to the applicant/accused. Therefore, a heavy burden was caused upon the applicant/accused to prove that the cheque was not given to the complainant. 14. The cheque is not given on round figure basis but it is given for specific sum of Rs. 7,67,027/- which indicates that the cheque was issued after calculation of the loss caused to the applicant/accused. Therefore, a heavy burden was caused upon the applicant/accused to prove that the cheque was not given to the complainant. 14. It is apparent that the applicant/accused could not discharge his burden in any manner. To rebut the allegation of the complainant, the applicant/accused examined one Hoshiyar Keshav Chinoy (DW-1) to show that he had direct connection with broker Mehta & Company for transaction in the share market and he never entered in such a contract with the complainant. However, the witness Hoshiyar Keshav Chinoy (DW-1) has accepted that it was the complainant who introduced the applicant/accused with broker Mehta & Company. He has also admitted that he has produced the account which was related to the cash transaction and he could not show any account which was related to the cheque transaction or transaction done on oral instructions. Under such circumstances, by the evidence of this witness, it was proved that the applicant/accused entered into the share marketing with the help of the complainant and he was introduced to Mehta & Company by the complainant. 15. The applicant/accused was expected to come with a clean hand that the amount which is shown in the cheque was not due to be paid by him and he should have either filed a suit for accounts in civil side from the complainant or he could have said that the amount which was filled up in the cheque was excessive and it was not due, therefore the applicant/accused directed for stoppage of the payment, but the applicant/accused did not take such a plea in the entire case. On the contrary, first of all he denied that the cheque was issued to the complainant and secondly he has stated that no share business was done by him through the complainant. However, the applicant/accused could not prove the aforesaid defence taken by him, and therefore now the burden which was shifted upon the applicant/accused was not discharged, and therefore the presumption in favour of the complainant takes a shape of proof that a sum of Rs. 7,67,027/- was due towards the applicant/accused. However, the applicant/accused could not prove the aforesaid defence taken by him, and therefore now the burden which was shifted upon the applicant/accused was not discharged, and therefore the presumption in favour of the complainant takes a shape of proof that a sum of Rs. 7,67,027/- was due towards the applicant/accused. Thereafter by an act which was not bonafide at all, the applicant/accused not only stopped the payment of the cheque but also lodged a counter complaint against the complainant. Hence, the offence under Section 138 of the N.I. Act is established against the applicant/accused that sum of Rs. 7,67,027/- was due towards the complainant and the applicant/accused had issued a cheque in favour of the complainant for payment of that sum and the cheque was dishonoured. Under such circumstances, both the courts below did not commit any error in convicting the applicant/accused for the offence under Section 138 of the N.I. Act. There is no basis by which any interference can be done in the concurrent findings of both the courts below relating to the conviction for the offence under Section 138 of the N.I. Act, which was based on the evidence and facts. 16. So far as the sentence is concerned, the complainant has also filed a revision that the appellate Court has reduced the jail sentence of the applicant/accused without any basis. The learned senior counsel for the applicant/accused could not show any precedent in the matter that the sentence reduced by the appellate Court was proper. However, Hon'ble the Apex Court in the case of "K.A. Abbas H.S.A. Vs. Sabu Joseph and another" [ (2010) 6 SCC 230 ] has held that the default sentence can be granted for default in payment of compensation awarded under Section 357(3) of Cr.P.C. The whole purpose of the provision is to accommodate the interests of the victims in the criminal justice system. Sometimes the situation becomes such that there is no purpose served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. By the aforesaid judgment, it would be apparent that while reducing the sentence, interest of the complainant/victim should not be overlooked. Sometimes the situation becomes such that there is no purpose served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. By the aforesaid judgment, it would be apparent that while reducing the sentence, interest of the complainant/victim should not be overlooked. In the case of N.I. Act a sentence is prescribed and simultaneously a provision of compensation is also prescribed, which would be dependent upon the value of the cheque. Under such circumstances, while granting the sentence, the grant of compensation has a different role in the present situation. By aforesaid judgment Hon'ble the Apex Court did not prohibit to direct jail sentence in an appropriate case. If the overt-act of the applicant/accused is considered, then he refused to pay the sum though he had issued a cheque in favour of the complainant, he lodged a counter complaint against the complainant. He did not deposit any amount in compliance to the judgment of the trial Court. He did not deposit much amount during the appeal. Under such circumstances, looking to the overt-act of the applicant/accused, it is not the case in which the applicant/accused may be released without any jail sentence. In the present case, mere grant of compensation is not an effective sentence. The compensation may be granted to the victim after giving an effective sentence in the case. Looking to the facts and circumstances of the case and conduct of the applicant/accused, it is apparent that the learned Additional Sessions Judge has committed an error in removing the entire jail sentence passed against the applicant/accused. A nominal jail sentence was required to be passed in the present criminal case. 17. On the basis of the aforesaid discussion, the Criminal Revision No. 367/2011 filed by the applicant/accused cannot be accepted. There is no basis by which any interference can be done in the concurrent findings of both the Courts below, and therefore conviction directed by both the courts below for the offence under Section 138 of N.I. Act is hereby maintained. The fine and compensation imposed by the appellate Court are also maintained. Therefore the Criminal Revision No. 367/2011 filed by the applicant/accused is hereby dismissed. Whereas Criminal Revision No. 468/2011 filed the complainant is hereby partly allowed. The fine and compensation imposed by the appellate Court are also maintained. Therefore the Criminal Revision No. 367/2011 filed by the applicant/accused is hereby dismissed. Whereas Criminal Revision No. 468/2011 filed the complainant is hereby partly allowed. The judgment relating to the jail sentence of the applicant/accused passed by the learned Additional Sessions Judge is hereby set aside up to that extent which relates to the sentence. However, the sentence of two years' RI directed by the trial Court is reduced to the period of six months' RI, and therefore Cr.R. No. 468/2011 filed by the complainant is hereby partly allowed. The applicant/accused shall also undergo for six months' RI for the offence under Section 138 of N.I. Act. 18. The applicant-accused is directed to surrender before the trial Court without any delay so that he may be sent for execution of jail sentence. A copy of this order be sent to the trial Court as well as the appellate Court for information and compliance.