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2018 DIGILAW 375 (JHR)

Ravi Shankar Mishra v. State of Jharkhand

2018-02-14

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
ORDER : Heard learned counsel for the petitioner and learned APP for the State. 2. Petitioner is the complainant who seeks leave to appeal against judgment of acquittal dated 9th June, 2017 passed by Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 2076 of 2012 where under the sole accused/opposite party No. 2 has been acquitted of the charges under Section 138 of the Negotiable Instruments Act. 3. As per the complainant's case. the accused purchased cement from time to time from the complainant on duel credit. He purchased cement amounting to Rs. 3,96,0001/- and in discharge of his liability issued two cheques of Rs. 2,00,0001/- each bearing Nos. 411321 and 411322 dated 22nd September, 2012 which included the transportation cost of Rs. 4,0001-. On being presented before the United Bank of India. Irby Branch, Ranchi on 22.9.2012 they were returned unpaid on 26.9.2012 with remark "exceeds arrangement". A legal notice was sent on 11.10.2012 through speed post but the accused never replied thereto nor made the payments. Mter enquiry and S.A. of the complainant. summons were issued upon the accused. who appeared and denied accusations explained to him in Hindi and claimed to be tried. 4. Trial commenced. Two witnesses being the complainant and one Haldhar Singh were examined by the complainant. He also produced the following documentary evidences : "Ext. 1 is Bill dated 20.9.12 Ext. 2 and 3 are two Cheques bearing No. 411321 and 411322 both of dated 22.9.12 amounting to Rs. 2.00.000/- (Two Lacs). Ext. 4 and 5 are two Cheque return memos’ dt. 26.9.12. Ext.6 is Legal Notice dated 11.10.12 Ext. 7 is Postal receipt dated 11.10.12. Ext.8 is Acknowledgement of legal notice." 5. After conclusion of the complainant's witnesses' examination. the statement of the accused under Section 313. Cr PC was recorded on 24.6.2015. He pleaded innocence and stated that he had given cheques to the complainant as security but not a single bag of cement had been sent by the complainant. Thereafter. the complainant told him to pay Rs. 1,00,000/- and he would send 200 bags of cement but he did not send. 6. Cr PC was recorded on 24.6.2015. He pleaded innocence and stated that he had given cheques to the complainant as security but not a single bag of cement had been sent by the complainant. Thereafter. the complainant told him to pay Rs. 1,00,000/- and he would send 200 bags of cement but he did not send. 6. Learned trial Court after analyzing the evidence on record arrived at an opinion that initial burden of proof on the accused to rebut the presumption under Sections 118 and 139 of the N.J. Act by raising a probable defence has been discharged but the complainant has not been able to establish his case beyond shadow of all reasonable doubts relating to the existence of a legally enforceable date. The learned trial Court found that Ext. 1, the bill dated 20th September, 2012 for purchase of 1100 bags of Ultra Teck cement for Rs. 3,96,000/- was untrustworthy document as the date on the bill was overwritten and in the column of quantity also there was a cut. It also found that the two cheques dated 22nd September, 2012 amounting to Rs. 2 lac each, on perusal showed that the name and date on both the cheques have been filled by some other person in other pen. Ext.6, the legal notice stated that his client supplied demanded cement on 20.3.2012 but as per C.W. 1, the accused purchased cement on 20.9.2012. There was a difference in the dates which could not be discarded. The learned trial Court accordingly, observed that the bill Ext.l is a manipulated document and the date and name of the firm had been filled up by some other person on the cheque. Further during cross-examination C.W.-l deposed that the accused issued cheques on 22nd September, 2012 and after taking goods told him to produce the same after two to three days but C.W.2 in his examination-in-chief stated that Sanjay Kumar Mishra told Ravi Shankar Mishra to present both cheques on 22nd September, 2012. C.W.2 appears to be hearsay witness who had no personal knowledge about delivery of the cement to the accused. Though, as per complainant's case, the amount of Rs. 2 lac comprising two cheques also included Rs. 4,000/- as transportation charge but the complainant had not produced any chit of paper regarding transportation of cement. 7. C.W.2 appears to be hearsay witness who had no personal knowledge about delivery of the cement to the accused. Though, as per complainant's case, the amount of Rs. 2 lac comprising two cheques also included Rs. 4,000/- as transportation charge but the complainant had not produced any chit of paper regarding transportation of cement. 7. Four defence witnesses including the accused on the other hand have taken the plea that the cheques were issued as security for the purpose of supply of cement but the complainant had not supplied any cement to him. Based on these aforesaid analysis, the learned trial Court acquitted the accused for the charge under Section 138 of the N.I. Act. 8. Learned counsel for the petitioner has taken us through the materials on record and the findings of the learned trial Court to bring home the point that the necessary ingredients of Section 138, N.I. Act, i.e., the bill showing a legal enforceable date (Ext. 1); two cheques dated 22.9.2012 for Rs. 2 lacs each (Ext.2 and 3); returned memos dated 26.9.2012 (Ext.4 and 5); legal notice dated 11.10.2012 (Ext. 6) and postal receipt dated 11.10.2012 (Ext.7) as well as the acknowledgment of legal notice (Ext.8) were duly evidenced during trial which clearly established the offence under Section 138, N.I. Act against the accused. The learned trial Court did not have any reason to doubt the authenticity of the bill Ext.1. Apart from making oral testimony relating to issuance of two cheques as security on the part of the defence, there were no materials to rebut the presumption under Sections 118 and 139 of N.I. Act on the part of the accused. The learned trial Court therefore, fall in error in coming to the finding that the initial burden of proof on the accused was adequately discharged on the preponderance of probabilities. The petitioner has a good case on merits which can be considered by the Court of appeal. 9. Learned APP defended the impugned judgment and supported the findings of the learned trial Court which according to him are well reasoned. 10. We have considered the submissions of the counsel for the parties and gone through the materials on record as also impugned judgment. We find that the learned trial Court had reason to doubt the authenticity of Ext. 1 , the bill amounting to Rs. 10. We have considered the submissions of the counsel for the parties and gone through the materials on record as also impugned judgment. We find that the learned trial Court had reason to doubt the authenticity of Ext. 1 , the bill amounting to Rs. 3,96,000/- as the date over it was not only overwritten but the column of the quantity was also having a cut. Apart from that, the cheques in itself were found to be filled up in the name and date by some other person in other pen. The complainant had failed to produce any chit of paper regarding transportation of cement to discharge its burden of establishing the existence of legal enforceable date in the wake of the defence plea that the two cheques were issued as security and that no cement had been supplied. The existence of legally enforceable date was not found to be adequately established through cogent evidence on the part of the complainant. 11. In view of the aforesaid analysis. we are not satisfied that the petitioner has made out a case of grant of leave to appeal. Accordingly, the instant petition is dismissed. Petition dismissed.