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2015 DIGILAW 1185 (SC)

Vinod Rakhan v. State of Madhya Pradesh

2015-09-08

ARUN MISHRA, H.L.DATTU

body2015
ORDER : 1. These appeals are directed against the judgments and orders passed by the High Court of Madhya Pradesh at Gwalior in Criminal Revision Nos. 135 and 136 of 2000, dated 20.03.2007. By the impugned judgments and orders the High Court has confirmed the order of conviction and sentence passed by the Additional Sessions Judge, Guna, Madhya Pradesh for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the NI Act"). Criminal Appeal No. 1576 Of 2007 2. The brief facts of the prosecution case are that on 28.01.1997 the appellant-herein gave a cheque of Rs. 25,000/- to the complainant for the discharge of liability with respect to money borrowed from the complainant. The cheque was deposited by the complainant at UCO Bank, Guna but the same could not be encashed due to insufficiency of funds. The complainant sent a registered notice to the appellant, but the complainant failed to make payment of the said amount within fifteen days of the receipt of the notice. Therefore, a complaint was filed before the Chief Judicial Magistrate, Guna. The Chief Judicial Magistrate took cognizance of the matter and registered a complaint under Section 138 of the NI Act. 3. Thereafter, the appellant appeared before the Chief Judicial Magistrate and after both sides were heard, charges were framed. The charges were read over and explained to the appellant who pleaded not guilty. Accordingly, the case was committed to Trial. The appellant would submit before the Chief Judicial Magistrate that his cheque book in which the dishonoured cheque was included had gotten lost, and he had also filed a report to that effect. The appellant would contend that the complainant had filled the amount on a blank cheque from the missing cheque book and had thereby committed a forgery. Two defence witnesses were examined in defence of the appellant. 4. The Chief Judicial Magistrate held that the appellant had neither produced the application or a copy thereof by which he had stated the loss of his cheque book, and nor had he filed any copy of the report made to the police. Further, the signature of the appellant on the dishonoured cheque was admitted. On perusal of the entire evidence on record, the Chief Judicial Magistrate held that the appellant had failed to rebut the presumption made under Section 139 of the NI Act. 5. Further, the signature of the appellant on the dishonoured cheque was admitted. On perusal of the entire evidence on record, the Chief Judicial Magistrate held that the appellant had failed to rebut the presumption made under Section 139 of the NI Act. 5. Accordingly, by its judgment and order dated 17.09.1999, the Chief Judicial Magistrate convicted the appellant for the offence punishable under Section 138 of the NI Act and sentenced him to undergo rigorous imprisonment for a period of one year, along with payment of fine of L 30,000/-, and in default to undergo simple imprisonment for three months. The Chief Judicial Magistrate further directed the appellant to pay compensation of Rs. 25,000/- to the complainant in respect of the dishonoured cheque under Section 357 of the Code of Criminal Procedure, 1973. 6. Being aggrieved by the said judgment and order passed by the Chief Judicial Magistrate, the appellant carried the matter in appeal before the First Additional Sessions Judge, Guna. Upon considering the entire evidence on record and submissions of the parties by judgment and order dated 26.04.2000 the Additional Sessions Judge confirmed the order of conviction and sentence passed by the Chief Judicial Magistrate. 7. Being aggrieved by the judgment and order passed by the Additional Sessions Judge, the appellant approached the High Court by way of Criminal Revision No. 135 of 2000. The High Court has perused the entire material on record and also the submissions of the parties and has arrived at the conclusion that the findings recorded by the Courts below did not suffer from any infirmity or illegality. Accordingly, by judgment and order dated 20.03.2007, the High Court has confirmed the judgments and orders passed by the Courts below. Criminal Appeal No. 1579 Of 2007 8. In this case the appellant-herein gave a cheque of the amount of L 15,000/- to the complainant on 10.10.1996 for the discharge of liability with respect to money borrowed from the complainant. The cheque was deposited by the complainant at the State Bank of Indore, Guna but the same could not be encashed due to insufficiency of funds. The complainant sent a registered notice to the appellant, but the complainant failed to make payment of the said amount within fifteen days of the receipt of the notice. Therefore, a complaint was filed before the Chief Judicial Magistrate, Guna. The complainant sent a registered notice to the appellant, but the complainant failed to make payment of the said amount within fifteen days of the receipt of the notice. Therefore, a complaint was filed before the Chief Judicial Magistrate, Guna. The Chief Judicial Magistrate took cognizance of the matter and registered a complaint under Section 138 of the NI Act. 9. Thereafter, the appellant appeared before the Chief Judicial Magistrate and after both sides were heard, charges were framed. The charges were read over and explained to the appellant who pleaded not guilty. Accordingly, the case was committed to Trial. The appellant would submit before the Chief Judicial Magistrate that his cheque book in which the dishonoured cheque was included had gotten lost, and he had also filed a report to that effect. The appellant would contend that the complainant had filled the amount on a blank cheque from the missing cheque book and had thereby committed a forgery. Two defence witnesses were examined in defence of the appellant. 10. The Chief Judicial Magistrate held that the appellant had neither produced the application or a copy thereof by which he had stated the loss of his cheque book, and nor had he filed any copy of the report made to the police. Further, the signature of the appellant on the dishonoured cheque was admitted. On perusal of the entire evidence on record, the Chief Judicial Magistrate held that the appellant had failed to rebut the presumption made under Section 139 of the NI Act. Accordingly, by its judgment and order dated 17.09.1999, the Chief Judicial Magistrate convicted the appellant for the offence punishable under Section 138 of the NI Act and sentenced him to undergo rigorous imprisonment for a period of one year, along with payment of fine of Rs. 20,000/-, and in default to undergo simple imprisonment for three months. The Chief Judicial Magistrate further directed the appellant to pay compensation of Rs. 15,000/- to the complainant in respect of the dishonoured cheque under Section 357 of the Code of Criminal Procedure, 1973. 11. Being aggrieved by the judgment and order passed by the Chief Judicial Magistrate, the appellant approached the High Court by way of Criminal Revision No. 136 of 2000. 15,000/- to the complainant in respect of the dishonoured cheque under Section 357 of the Code of Criminal Procedure, 1973. 11. Being aggrieved by the judgment and order passed by the Chief Judicial Magistrate, the appellant approached the High Court by way of Criminal Revision No. 136 of 2000. The High Court has perused the entire material on record and also the submissions of the parties and has arrived at the conclusion that the findings recorded by the Courts below did not suffer from any irregularity or illegality and neither was it based on perverse findings. Accordingly, by judgment and order dated 20.03.2007, the High Court has confirmed the judgment and order passed by the Chief Judicial Magistrate. 12. Being aggrieved by the judgments and orders passed by the High Court in both the appeals the appellant is before us. 13. We have heard the learned counsels for the parties to the lis in both the matters. 14. After going through the judgments and orders passed by the High Court and the Courts below, we are of the considered view that the High Court while passing the order of conviction has not done any error whatsoever which calls for our interference. However, we are informed by the learned counsel for the appellant that the incidents are of the year 1996 and 1997 respectively, and more than 18 years have passed since then. Learned counsel for the appellant would submit that the fine amount and the compensation awarded have been duly deposited by the appellant and he has undergone nearly five months of imprisonment. 15. Before proceeding further we would note that no minimum punishment is prescribed for the offence punishable under Section 138 of the NI Act. Therefore, in view of the submissions so made by learned counsel for the appellant, we are of the considered opinion that the ends of justice will be met if we modify the sentence to the period already undergone. Accordingly, while confirming the conviction of the appellant, we modify the sentence to the period undergone. 16. Accordingly, the appeals are disposed of. The bail bonds of the appellant, if any, are discharged. 17. The order passed by us shall not be treated as precedent in any other case.