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2014 DIGILAW 218 (MP)

Nirbhay Jain v. Rajkishore Vyas

2014-02-17

N.K.GUPTA

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JUDGMENT : N.K. Gupta, J. Learned Counsel for the applicant prays for sometime to produce the applicant before this Court. After perusal of the various order-sheets, it appears that the present revision was field in the year 2005 and it was observed that the applicant absconded after disposal of the appeal though jail sentence was directed against him. His application for suspension of sentence is still pending. So many warrants etc. were issued against the applicant but, continuously a report is received from the serving officer that the applicant left Tendukheda and he is residing at Jabalpur. Learned Counsel for the applicant could not produce the applicant before this Court in last 8 years and therefore, there will be no use, if some more time is given for production of the applicant Hence, prayer made by the learned Counsel for the applicant is not accepted. 2. Since, the appeal filed by the applicant was dismissed by the appellate Court and no order relating to suspension of sentence is passed by this Court therefore, it is the responsibility of the trial Court to get the sentence executed. It is apparent that in last 8 years, the question of admission was not considered by this Court. Since the applicant is represented therefore, it would be proper to consider that question. 3. Heard on admission. 4. The applicant is convicted for the offence punishable u/s 138 of the Negotiable Instruments Act and sentence with 6 months rigorous imprisonment vide judgment dated 20.2.2004 passed by the learned J.M.F.C., Patan in criminal case No. 760/2002, whereas criminal appeal No. 72/2004 was dismissed by 15th Additional Sessions Judge, Jabalpur vide judgment dated 23.3.2005. 5. The prosecution's case, in short, is that, the complainant was prosecuting his business in the name of Vyas Trading Company, whereas the applicant was a vendor of iron at Tendukheda. The applicant was in habit to purchase iron from the complainant. On 3.5.2001, he gave a cheque of Rs. 20,263/- of State Bank of India to the complainant. When it was deposited for its encashment at State Bank of India, Branch Patan, then on 17.8.2001 an intimation, Ex. P/3 was received by the complainant that the encashment of cheque was stopped by the applicant. Thereafter, a demand notice was given to the applicant but, no amount was given by the applicant and therefore, a complaint was filed. 6. When it was deposited for its encashment at State Bank of India, Branch Patan, then on 17.8.2001 an intimation, Ex. P/3 was received by the complainant that the encashment of cheque was stopped by the applicant. Thereafter, a demand notice was given to the applicant but, no amount was given by the applicant and therefore, a complaint was filed. 6. The applicant took a defence that he purchased some iron from the complainant having cost of Rs. 37,000/- but, on its weighing at Tendukheda, it was found that 80 kgs. of iron was short and therefore, the applicant directed to stop the payment of the cheque and therefore, it was not a case which falls u/s 138 of the Negotiable Instruments Act. One witness Brijesh Prasad Dubey (D.W. 1) was also examined in defence but, he did not say that on weighing the iron, it was found short. 7. After considering the evidence adduced by the parties, the learned Magistrate convicted and sentence the applicant as mentioned above, whereas the appeal filed by the applicant was dismissed in toto. 8. The learned Counsel for the applicant has submitted that if the applicant directed the Bank to stop the payment then, certainly the offence does not fall within the purview of Section 130 of Negotiable Instruments Act and therefore, no such offence was made out. However, if the entire evidence was considered, it would be proper from the document, Ex. P/2 that cheque was dishonoured because the drawer directed to stop the payment of cheque. However, if some iron was found short then, the applicant should have given a notice to the complainant to get the adjustment of the cost of that shortage. Similarly, after receiving the demand notice Ex. P/4, he must have replied that he directed to stop the payment. The applicant gave a reply to that notice that according to his order, iron of Rs. 20,263/- was to be sent by the complainant to the applicant and the applicant gave the payment in advance by the impugned cheque. However, no delivery of iron was given and therefore, he has directed to stop the payment. Reply of the notice indicates that the applicant gave an advance payment by cheque of a particular iron which was not supplied, whereas he took a defence that the iron supplied by the complainant was short by 80 kgs. However, no delivery of iron was given and therefore, he has directed to stop the payment. Reply of the notice indicates that the applicant gave an advance payment by cheque of a particular iron which was not supplied, whereas he took a defence that the iron supplied by the complainant was short by 80 kgs. There is a material contradiction in the evidence taken by the applicant. If there was a dispute in the amount of payment then, he should have negotiated or reported the matter to the police or he should have given a notice of that shortage and requested that payment of shortage iron should be adjusted. On the contrary, he stopped the payment, without any reason. Looking to the contradictory evidence, it cannot be said that the applicant received the shortage of 80 kgs of iron due to delivery given by the complainant. His defence witness could not say that on weighing the iron, it was found short. Under such circumstances, there was no reason for the applicant to direct the Bank to stop the payment of cheque and therefore, under such circumstances, the direction given by the applicant to stop the payment of cheque comes within the purview of Section 130 of Negotiable Instruments Act. Under such circumstances, both the Courts below have rightly concluded and convicted the applicant for offence punishable u/s 138 of Negotiable Instruments Act. So far as the sentence is concerned, the applicant has not shown any bona fide intention that after the conviction, he would have deposited the amount of cheque or tendered it to the complainant. On the contrary, he absconded after the decision of the appellate Court. Under such circumstances, there is no reason so that the sentence of the applicant may be reduced. On the basis of the aforesaid discussion, the revision filed by the applicant cannot be accepted. There is no basis to accepted the revision and therefore, the present revision is hereby dismissed at motion stage. A copy of the order be sent to both the Courts below alongwith their records for information and execution of jail sentence passed against the applicant.