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2013 DIGILAW 808 (AP)

D. Achyutha Reddy v. State of A. P. through SHO

2013-09-24

B.CHANDRA KUMAR

body2013
JUDGMENT This Criminal Revision Case is filed by the petitioner/accused challenging the judgment dated 28.03.2013 passed in Crl.A.No.238 of 2009 made by the VII Additional Metropolitan Sessions Judge, Hyderabad, whereby and whereunder the conviction and sentence imposed in C.C.No.33 of 2007 by the learned VII Additional Chief Metropolitan Magistrate, Hyderabad, has been confirmed. 2. The 2nd respondent herein is the de facto complainant and the petitioner herein is the accused in C.C.No.33 of 2007. The parties will be referred to as they are arrayed before the trial Court for the sake of convenience. 3. The brief facts of the case are as follows: The de facto complainant filed a complaint, under Section 200 Cr.P.C., alleging that the accused is his family friend and that the accused is in the habit of taking hand loans occasionally from him and his family members and that the accused has been involved in the business of production of feature films, T.V. Serials and other allied business. The accused approached the de facto complainant in the first week of March 2003 for advancement of hand loan for a sum of Rs.6,00,000/- to meet his business expenditure. On 06.03.2003, the de facto complainant arranged Rs.5,60,000/- and had given the same to the accused as hand loan and that the accused had issued a cheque bearing No.0432090, dated 01.09.2003, drawn on Andhra Bank, Nampally Branch, Hyderabad. When the said cheque was presented in Andhra Bank, SAEDS Extension, Kalyan Nagar, Hyderabad, on 24.11.2003 for realization, it was returned unpaid by the Drawee Bank through a memo dated 25.11.2003 with an endorsement ‘Account Closed’. Though the accused already closed the account, only with a view to cheat the de facto complainant and to defraud him, he issued a post dated cheque having received a hand loan of Rs.5,60,000/-. Alleging that the accused committed offence under Section 420 IPC, the complaint was filed. 4. On 29.12.2003, the complaint has been referred to the police by the learned VII Additional Chief Metropolitan Magistrate, Hyderabad, and the Police, Jubilee Hills, received the same and issued FIR.No.430 of 2003 on 29.12.2003. After completion of investigation the police filed charge sheet against the accused. It appears that the accused has obtained anticipatory bail before filing of the charge sheet. 5. The complainant himself was examined as PW.1 and PWs.2 to 5 were examined on behalf of the prosecution and Exs.P.1 to P.10 were marked. After completion of investigation the police filed charge sheet against the accused. It appears that the accused has obtained anticipatory bail before filing of the charge sheet. 5. The complainant himself was examined as PW.1 and PWs.2 to 5 were examined on behalf of the prosecution and Exs.P.1 to P.10 were marked. On behalf of accused none were examined and Exs.D1 and D2 were marked. 6. The learned VII Additional Chief Metropolitan Magistrate, Hyderabad, having appreciated the evidence on record, found the accused guilty of the offence punishable under Section 420 IPC and sentenced him to undergo Rigorous Imprisonment for a period of one year and also to pay fine of Rs.2,000/-, in default to undergo simple imprisonment for six months. 7. Aggrieved by the same, the accused preferred an appeal in Crl.A.No.238 of 2009 on the file of V Additional Metropolitan Sessions Judge, Hyderabad, and the said appeal was allowed. Challenging the same, the complainant filed the revision in Crl.R.C.No.74 of 2010, and this Court by judgment dated 21.06.2011, allowed the revision and the appeal has been remanded the appeal to the lower appellate Court. The learned VII Additional Metropolitan Sessions Judge, Hyderabad, by impugned judgment confirmed the judgment of the trial Court. Against the same, the petitioner/accused filed the present revision case. 8. The learned counsel for the petitioner/accused submits that the de facto complainant filed a civil suit which has been decreed and as the accused is unable to pay the decretal amount, he has been sent to civil prison in the said suit and he has languishing in jail since last six months. The further submissions of the learned counsel for the accused are as follows: “The de facto complainant did not mention the place where he had paid the amount to the accused and where the accused had signed the cheque. The de facto complainant did not mention the names of the witnesses and any other material particulars in the complaint. Though it is alleged that the complainant paid the amount in the house of his brother Raghu Ram, neither the said Raghu Ram nor his family members are examined by the Investigating Officer. The cheque was not issued on the alleged date and therefore it cannot be said that the cheque was issued after the closure of the account. Though it is alleged that the complainant paid the amount in the house of his brother Raghu Ram, neither the said Raghu Ram nor his family members are examined by the Investigating Officer. The cheque was not issued on the alleged date and therefore it cannot be said that the cheque was issued after the closure of the account. The son and wife of the complainant have already filed suits against the accused prior to March 2003, and in the above circumstances, in all probabilities the complainant would not have paid money to the accused in the first week of March 2003. The complainant has been doing money lending business without having any license and therefore claiming interest is against the provisions of A.P. (Telangana Area) Money Lenders Act, 1349 F. The complainant has also violated the provisions of the Income Tax Act by making payment exceeding Rs.20,000/- not by way of cheque. The complainant did not explain his capacity to lend the amount.” 9. Sri N. Ratan Babu, the de facto complainant, has appeared in person and argued his case. His submissions are as follows: 1. “As the accused is known to him and was doing some business in production of feature films, T.V. Serials, and when he was in need of money, he used to approached him and his family members and take hand loans from them. Even after filing of the suits against the accused by his son and wife, the accused maintained cordial relationship with him and used to promise that he would clear all the debts as he was expecting huge profits in his business and by the confidence created by the accused he had lend money to the accused and accordingly issued the cheque. The accused has not denied the signature on the cheque and when the accused has not denied the signature on the cheque, presumption under Sections 118 and 139 of the N.I. Act has to be drawn and it has to be presumed that the holder of the cheque received the cheque for discharge, in whole or in part of a debt of liability. It is not the case of the accused that the cheque pertains to any other transaction. He has relied on the judgments of the Apex Court reported in K.N. Beena Vs. Muniyappan,(2001 Crl.L.J. 4745) and M/s. Modi Cements Limited Vs. It is not the case of the accused that the cheque pertains to any other transaction. He has relied on the judgments of the Apex Court reported in K.N. Beena Vs. Muniyappan,(2001 Crl.L.J. 4745) and M/s. Modi Cements Limited Vs. Kuchil Kumar Nandi,( AIR 1998 SC 1057 ) and several other judgments in support of his contention. Though the complainant issued a legal notice, the accused failed to give reply and it is one of the strong circumstances to draw inference that the accused had borrowed the amount from the complainant and the cheque was issued towards payment of the legally enforceable debt. Reliance is placed on the judgment reported in Gorantla Venkateshwara Rao Vs. Kolla Veera Raghava Rao.(2006 Crl.L.J. 1) His next submission is that the contents of the cheque need not be filled up by the accused and reliance is placed on the judgment reported in D. Atchyutha Reddy Vs. State of Andhra Pradesh (2010 (1) ALD (Crl.) 59) He also placed reliance in a case between Gorantla Venkateshwara Rao’s case (3rd Supra), Satish Jayantilal Shah Vs. Pankaj Mashruwala(1996 Crl.L.J. 3099) and P.S.A. Thamotharan Vs. Dalmia Cements (B) Limited.( 2005 (1) DCR 85 ) It is also his submission that the complaint need not contain all the details and reliance is placed on the judgment reported in Rajesh Bajaj Vs. State NCP of Delhi (1999 Crl.L.J. 1833) and Gorantla Venkateshwara Rao’s case (3rd Supra). With regard to the principles laid down for appreciating the evidence, reliance is placed on the judgments reported in Rajuladevula Srinu Vs. State of A.P.,(2005 ALD (Crl.) (1) 38) Bhola @ Paras Ram Vs. State of H.P. ( 2009 (11) SCC 460 ) and State of A.P. Vs. Kanda Gopaludu.( 2005 (13) SCC 116 ) It is also his submission that merely because there are certain irregularities or wrongs committed during the investigation, they are not fatal to the case of the prosecution and reliance is placed on the judgments reported in Vijender Vs. State of Delhi,( 1997 (6) SCC 171 ) Leela Ram.D through Duli Chanda Vs. State of Haryana,( AIR 1999 SC 3717 ) Jai Narain Vs. State of U.P.,(2000 Crl.L.J. 3808) Baldev Singh Vs. State of Punjab,( AIR 1996 SC 372 ) Simon S/o. Tharakan Devassy Vs. State of Kerala(1996 Crl.L.J. 3368) and State of Karnataka Vs. State of Delhi,( 1997 (6) SCC 171 ) Leela Ram.D through Duli Chanda Vs. State of Haryana,( AIR 1999 SC 3717 ) Jai Narain Vs. State of U.P.,(2000 Crl.L.J. 3808) Baldev Singh Vs. State of Punjab,( AIR 1996 SC 372 ) Simon S/o. Tharakan Devassy Vs. State of Kerala(1996 Crl.L.J. 3368) and State of Karnataka Vs. K. Yarappa Reddy.( AIR 2000 SC 185 ) It is also his submission that the definition of money lender applies to only those persons whose regular business is to advance money and not to those who advance money casually. Reliance is placed on the judgments reported in Veralaxmi Vs. Syed Kasim Hussain, (1962 (2) Andh. WR 137) Munagala Yadagiri Vs. Pittala Veeriah,(1958 (1) Andh. WR 413) Rotakonda Raghu Naidu Vs. Kolla S. Prasad( 2004 (4) Crimes 295 ), and S.V. Rao Vs. M/s. Credential Finance Limited.(2006 Crl.L.J. 1999) With regard to the capacity to lend the amount reliance is placed on the judgment reported in N.K. Jain Vs. Zahid Ali. (2004 (1) ALD (Crl.) 201)” 10. The only point that arises for consideration is whether the conviction and sentence passed by the trial Court and confirmed by the appellate Court is sustainable? 11. In this case, the complainant himself is examined as PW.1. It is his case that he is the former member of A.P. Public Service Commission and that he knows the accused and the accused is doing business in film production, T.V. Serials and having Audio Recording Theatre. According to the complainant/PW.1, in the first week of March 2003, the accused asked to lend money for a sum of Rs.6,00,000/- for his business purpose, on 06.03.2013, he telephoned for arranging the money. According to the complainant, he could arrange Rs.5,60,000/- and when the accused made phone call to him, Janaki Ramaiah and Sambasiva Rao/PW.4 were present in his house. According to the complainant, then he informed the accused that he could meet him at his brother’s house which is nearer to the house of the accused, and requested Janaki Ramaiah and Sambasiva Rao to accompany him to his brother’s house. When they went there after sometime the accused came there and he paid Rs.5,60,000/- to the accused in the presence of Janaki Ramaiah and Sambasiva Rao. Then the accused issued a cheque and asked the complainant to fill up the particulars on the ground that he cannot right English correctly. When they went there after sometime the accused came there and he paid Rs.5,60,000/- to the accused in the presence of Janaki Ramaiah and Sambasiva Rao. Then the accused issued a cheque and asked the complainant to fill up the particulars on the ground that he cannot right English correctly. Then the complainant filled the blanks in the cheque and as per the consent of the accused the date of the cheque is noted as 01.09.2003 and handed over to the accused. The accused after going through the contents of the cheque and reading it loudly put his signature on the cheque. The further case of the complainant is that he presented the cheque on 24.11.2003, however, the same was returned with an endorsement that the accused had closed his account on 24.01.2003 much prior to the date of issuance of the cheque. During cross-examination, the complainant admitted that he filed five suits against the accused in the City Civil Court, Hyderabad, and that the particulars, as to where and in whose presence he had paid the amount, have not been mentioned in the complaint. He has also admitted that in Ex.P4 notice he has not mentioned on which date the accused issued the cheque. It was suggested to the complainant that he had taken the cheque from the accused as security and instead of returning it to the accused the same was misused by him. The complainant further admitted that his son filed three suits and his wife filed two suits in City Civil Court and also in Criminal Court against the accused. He has also admitted that he did not mention in his complaint that the accused asked him to fill the particulars in the cheque and he filled the blanks in the cheque with the consent of the accused. 12. One Krishnaiah, Branch Manager, Andhra Bank, Kalyan Nagar, Hyderabad, was examined as PW.2. According to him, the complainant was having an account in the bank and that on 24.11.2003, and he presented the cheque in question and it was sent for clearance, but returned with an endorsement that the account of the accused was closed. 13. Jagadeeshwar Reddy, Manager, Andhra Bank, Nampally Branch, Hyderabad, was examined as PW.3. According to him, the accused opened his account in Nampally Branch on 17.10.1998 and in the month of January 2003, he closed his account. 13. Jagadeeshwar Reddy, Manager, Andhra Bank, Nampally Branch, Hyderabad, was examined as PW.3. According to him, the accused opened his account in Nampally Branch on 17.10.1998 and in the month of January 2003, he closed his account. According to him, Ex.P2-cheque issued by the accused, was received by them from Andhra Bank, Sanjeevreddy Nagar. Ex.P3 is the certified copy of the cheque return memo issued by their Bank dated 25.11.2003. 14. PW.4-M. Sambasiva Rao claims that he accompanied the complainant and went to the house of Raghu Ram and the accused came there and the complainant paid Rs.5,60,000/- to the accused and the accused issued a post dated cheque and requested the complainant to fill in the blanks of the cheque. He further deposed that the accused signed the cheque and gave it to the complainant. It is elicited in the cross-examination that he was a witness on behalf of the complainant in civil suits. 15. PW.5 is the Sub Inspector of Police registered the case on receiving the complaint and investigated the case and filed the charge sheet. 16. As seen from record, all the witnesses were thoroughly cross-examined. The sum and substance of the cross-examination reveals that certain particulars were not mentioned in the complaint and the complainant has improved his version at the time of trail. 17. The one of the important questions that arises for consideration is whether the accused has cheated the complainant. 18. Section 415 IPC is as follows: “415. Cheating:-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".” 19. Section 420 IPC is as follows: “420. Section 420 IPC is as follows: “420. Cheating and dishonestly inducing delivery of property:- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 20. In view of the ingredients of Section 415 IPC, it has to be seen whether there was mens rea for the accused to induce the complainant to part with the money. It means whether the accused intended to cheat the complainant at the very inception of the transaction. In this case the very fact is that the accused issued a cheque after closure of the account indicates his intention to cheat the complainant from the very inception. In D. Atchyutha Reddy’s case (4 Supra) pertaining to the same accused this Court observed that the cheque issued after the closure of the account indicates that he intended to cheat the complainant from the very inception. It is argued that the wife and son of the complainant filed suits against the accused before the date of paying cheque amount to the accused and issuing cheque and in all probabilities the complainant would not have paid the amount after his wife and son filed suits against the accused. Even if the said contention is accepted as correct for the sake of argument, the fact remains that the accused has issued the cheque, even if the cheque pertain to previous debt, since the account was already closed by that date of issuing cheque, the ingredients of cheating seems to have been made out. 21. Section 118 of N.I. Act is as follows: “118. 21. Section 118 of N.I. Act is as follows: “118. Presumptions as to negotiate instruments:Until the contrary is proved, the following presumptions shall be made: (a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date; that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer; that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps; that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course; that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.” 22. Section 139 of N.I. Act is as follows: “139. Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” 23. Thus, when it is not in dispute that the accused has signed the cheque, it has to be presumed unless, the contrary is proved that, the holder of a cheque received the cheque for the discharge in whole or in part of any debt or other liability. It is clear that the cheque may pertain to previous debt or other liability. 24. As far as the legal principles have been concerned, the law appears to be well settled. It is clear that the cheque may pertain to previous debt or other liability. 24. As far as the legal principles have been concerned, the law appears to be well settled. In K.N. Beena’s case (1 Supra) the Apex Court observed as follows: “In our view the impugned Judgment cannot be sustained at all. The Judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonored cheque is on the complainant. It appears that the learned Judge had lost sight of Sections 118 and 139 of the Negotiable Instruments Act. Under Sections 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. 25. Admittedly, the accused has not denied his signature on the cheque. Therefore, the Court has to presume that the cheque has been issued for a debt or a liability, of course, this presumption is rebuttable. Admittedly, the accused has not adduced any evidence in this case in rebuttal. It is also not his case that the cheque was issued with regard to any other transaction. 26. Admittedly, the complainant got issued a legal notice to the accused and the accused did not give reply to the legal notice. In Gorantla Venkateshwara Rao’s case (3 Supra) this Court observed as follows: “The failure of the accused in giving reply to the legal notice issued by complainant is one of the strong circumstances to draw an inference that the accused borrowed the amount from complainant and the cheque was issued towards payment of the legal enforceable debt.” 27. As far as the filling of the contents of the cheque is concerned, it is the case of the complainant that the contents of the cheque were filled by him, when accused stated that cannot right English correctly. Admittedly, the complainant has filled the blanks of the cheque. As far as the filling of the contents of the cheque is concerned, it is the case of the complainant that the contents of the cheque were filled by him, when accused stated that cannot right English correctly. Admittedly, the complainant has filled the blanks of the cheque. In this regard the complainant has relied on a judgment reported in Gorantla Venkateshwara Rao’s case (3 Supra), wherein this Court observed as follows: “The legal position on this aspect is very clear that the body of the cheque need not necessarily be written by the accused it can be in the handwriting of the any body else or typed on a type machine, so long as the accused do not dispute the genuineness of the signature of the cheque.” 28. It is settled law that FIR or complaint need not contain all the details and reliance is placed on the judgment reported in Rajesh Bajaj’s case (7 Supra), wherein the Apex Court observed as follows: “It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage of investigation.” 29. In Baldev Singh’s case (14 Supra) the Apex Court observed as follows: “The FIR is not a substantive piece of evidence, it is only relevant in judging the veracity of prosecution case and the value to be attached to it depends on the facts of each case. Only the essential or broad picture need be stated in the FIR and all minute details need not be mentioned therein. It is not a verbatim summery of prosecution case. It need not contain details of the occurrence as if it were an “encyclopedia” of the occurrence. It may not be even necessary to catalogue the overt acts therein. Non-mentioning of some facts or vague reference to some others are not fatal.” 30. As far as the appreciation of evidence is concerned, the law appears to be well settled that minor contradictions need not be taken into consideration. It may not be even necessary to catalogue the overt acts therein. Non-mentioning of some facts or vague reference to some others are not fatal.” 30. As far as the appreciation of evidence is concerned, the law appears to be well settled that minor contradictions need not be taken into consideration. In Rajuladevula Srinu’s case (8 Supra) this Court observed as follows: “It is common experience that improvements and contradictions are invariably found in the testimony of even the wholly truthful witnesses when they are made to depose of an occurrence after a lapse of two years. The capacity of human brains to retain minute details of the occurrence varies from man to man. In our opinion these contradictions do not cast reflection upon the evidentiary value of these two witnesses.” 31. With regard to the appreciation of evidence, reliance is placed on the judgment reported in Bhola’s case (9 Supra). In that case, the Apex Court observed as follows: “It is fairly settled position in law that even if there are some omissions, contradictions and discrepancies the entire evidence cannot be discarded. After exercising care and caution and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvements the court can come to a conclusion as to whether the residual evidence is sufficient to convict the accused. Undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of the prosecution witnesses. A witness cannot be accepted to possess a photographic memory and to recall the deals of an incident verbatim.” 32. As far as the plea of the accused that the complainant is money lender or that he has not obtained any license for doing money lending business or that the cheque issued against the Income Tax Act are concerned, those aspects need not be taken into consideration since PW.1 was not cross-examined on those aspects. 33. One of the contentions of the learned counsel for the accused is that the complainant has already filed civil suits. In this regard, the complainant has relied on the judgment reported in N. Devendrappa Vs. State of Karnataka,( (2007) 5 SCC 228 ) wherein the Apex Court observed as follows. “He would like to say that an act can result in both civil and criminal liability. In this regard, the complainant has relied on the judgment reported in N. Devendrappa Vs. State of Karnataka,( (2007) 5 SCC 228 ) wherein the Apex Court observed as follows. “He would like to say that an act can result in both civil and criminal liability. Hence, merely because the act of the appellant has civil liability it does not mean that it cannot also have criminal liability”. He has also relied on a judgment reported in M/s. Medchl Chemicals and Pharma Private Limited Vs. M/s. Biological E. Ltd.,(2000 Crl.L.J. 1487(1)) wherein the Apex Court observed as follows: “On careful reading of the complaint, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 415, 418 and 420 cannot be said to be totally absent on the basis of the allegations in the complaint. We, however, hasten to add that whether or not the allegations in the complaint are otherwise correct has to be decided on the basis of the evidence to be led at the trial in the complaint case but simply because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the Court to come to a conclusion that civil remedy is the only remedy available to the appellant herein. Both criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact “they are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and impart”.” 34. For the same proposition, reliance is placed on the judgment of the Bombay High Court reported in Satishkumar S/o. Premchand Jain Vs. Krishnagopal S/o. Mohanlal Sarda.(1994 Crl.L.J. 887) 35. The two types of actions are quite different in content, scope and impart”.” 34. For the same proposition, reliance is placed on the judgment of the Bombay High Court reported in Satishkumar S/o. Premchand Jain Vs. Krishnagopal S/o. Mohanlal Sarda.(1994 Crl.L.J. 887) 35. The case of the complainant is that he himself carried the amount to the house of his brother and handed over the same to the accused. However, Ex.D2 shows that the complainant had sent the money through one of the Attestor. Since, the Investigating Officer stated that Ex.D2 is a mistake and no importance need be given to the said mistake. With regard to the certain irregularities committed by the investigating officer, the learned counsel for the complainant submits that those lapses cannot be taken into consideration and reliance is placed on the judgment reported in Dalip Singh Vs. State of Punjab,( (1997) 11 SCC 573 ) wherein the Apex Court observed as follows: “In Vijender Vs. State of Delhi [J.T. 1997 (3) SC 131] a Bench of this Court, of which one of us was a member (M.K. Mukherjee, J.) while dealing with a similar question observed as under: "The result of investigation under Chapter XII of the Criminal Procedure Code is a conclusion that an Investigating Officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent Court to take cognizance thereupon under Section 190 (1)(b) Cr.P.C. and to proceed with the case for trial, where the materials collected during investigation are to be translated into legal evidence. The trial Court is then required to base its conclusion solely on the evidence adduced during the trial; and it cannot rely on the investigation of the result thereof." We may further add that if the result of investigation was to be made the basis of a Court’s verdict regarding guilt or innocence of an accused, there would be no need of a trial in a police case for, relying on the report submitted under Section 173 (2) Cr.P.C. a Court would be entitled to decide the fate of the person arraigned.” 36. For the same proposition, reliance is placed on the judgment reported in Leela Ram’s case (12 Supra), wherein the Apex Court observed as follows: “It is now as well settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case and we need not dilate on the issue.” 37. The submission of learned counsel for the accused is that the accused is in jail in the suit filed by the complainant, and therefore, the accused cannot be sentenced to imprisonment. The complainant has relied on a judgment reported in Raghbir Singh Vs. State of Haryana,( (1984) 4 SCC 348 ) wherein the Apex Court observed as follows: “Hence in order to secure the benefit of section 428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced. It follows that if a person is undergoing the sentence of imprisonment imposed by a court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the latter case even though he was under detention during such period. In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence. It is not the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is later on convicted and sentenced to undergo imprisonment. He cannot claim a double benefit under section 428 of the Code i.e. the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well. The instruction issued by the High Court in this regard is unexceptionable. The stand of the State Government has, therefore, to be upheld.” 38. The instruction issued by the High Court in this regard is unexceptionable. The stand of the State Government has, therefore, to be upheld.” 38. In this case, since the accused has not denied the signature on the cheque, presumption has to be drawn in favour of the holder of the cheque. Hence, no importance need be given to the contention of the accused that in the absence of certain particulars such as where and in whose presence the transaction has taken place, the same cannot be believed. 39. Having regard to the facts and circumstances of the case, it appears that the accused and the complainant were having financial dealings and that the accused had borrowed the amounts from time to time from the complainant and his family members. Subsequently, the accused failed to pay the amount which resulted in filing of the suits against the accused. 40. As seen from the record, it is clear that the accused has closed the account on 24.01.2003. According to the complainant, he paid the amount on 06.03.2003. The cheque is dated 01.09.2003, which was presented on 24.11.2003 and it was returned on 25.11.2003. The above facts clinchingly establish that the accused after closure of the account had issued a post dated cheque on 06.03.2003 and at his instance the date was mentioned as 01.09.2003 on the cheque. Therefore, it is clear that as on the date of issuing cheque, the accused had closed his account, and it was within the exclusive knowledge of the accused. Thus, it is clear that he had mens rea to cheat the complainant on the date of issuance of cheque. Therefore, the offence under Section 420 IPC has been made out. Accordingly, I do not find any reason to set aside the well reasoned judgment passed by the Courts below. 41. Accordingly, the Criminal Revision Case is dismissed. However, the sentence is modified as follows: “The accused is sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.2,000/- (Rupees Two Thousand only) for the offence under Section 420 IPC, however, in default of payment of fine amount he shall undergo simple imprisonment for a period of two (02) months.