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2018 DIGILAW 495 (JHR)

Samar Ansh v. State of Jharkhand

2018-02-26

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
ORDER : By the Court.-Heard learned counsel for the parties. 2. Petitioner, who was a complainant in Complaint Case No. 1257 of 2013/T.R. No. 516 of 2016, is aggrieved by the acquittal of the accused/opposite party No. 2 by the learned Court of Judicial Magistrate 1st Class, Ranchi in a case under Section 138 of the Negotiable Instruments Act. 3. The complainant's case and the material evidences on record adduced. during the trial, as discussed by the learned trial Court are briefly stated here under in order to appreciate the submissions of the parties whether special leave to appeal deserves to be allowed in the present case:- Complainant was running a shop in the name of Sahara Steel at Murma Village doing business of cement and rod. The accused was a building contractor. As per the complainant, there was an oral contract between them for supply of materials on credit basis for which the accused had to make payment. In course of business the outstanding dues against the accused swelled to Rs. 1,38,951. The accused issued cheque bearing No. 973695 dated 05.04.2013 for a sum of Rs. 99,500/- drawn on State Bank of India, Court Compound branch, Ranchi. On being presented, it was returned with an endorsement 'stop payment' on 05.04.2013. Thereafter, a legal notice was sent on 05.04.2013 upon the accused through speed post demanding payment of the aforesaid cheque amount within 15 days from the date of receipt of the notice. The accused despite receipt of the notice did not pay the said amount and raised a new defence through his reply dated 08.04.2013. 4. Learned trial Court, on being satisfied of a prima facie case, issued summon on the accused. On appearance the accusations were explained to him to which he pleaded not guilty and claimed to be tried. His statement was recorded under Section 313 of the Criminal Procedure Code. 5. The complainant examined himself as CW 1 and one Anwar Ansari as CW 2. In defence. the accused examined himself as DW 1. During trial the complainant testified following documents in support of his case:- 1. Exhibit 1 cheque No. 973695 dated 05.04.2013, 2. Exhibit 2 cheque deposit slip dated 05.04.2013, 3. Exhibit 3 cheque return memo dated 10.04.2013, 4. Exhibit 4 legal notice dated 15.04.2013, 5. Postal receipt dated 15.04.2013. 6. Exhibit 6 complaint petition. 6. During trial the complainant testified following documents in support of his case:- 1. Exhibit 1 cheque No. 973695 dated 05.04.2013, 2. Exhibit 2 cheque deposit slip dated 05.04.2013, 3. Exhibit 3 cheque return memo dated 10.04.2013, 4. Exhibit 4 legal notice dated 15.04.2013, 5. Postal receipt dated 15.04.2013. 6. Exhibit 6 complaint petition. 6. In his cross-examination the complainant had stated that he had not deposited any bill or voucher of his shop. He further stated that he used to give receiving to the accused against the sale of the materials but he had not filed the slip of bills in the Court. On his admission, the bills adduced by the accused were marked as Exts. A to A/14. which were all in the name of Anwar Ansari. He further stated during cross-examination that the cheque was filled up by him and the accused had only put his signature on the cheque. He had also accepted that accused had also filed a case against him and the witness of the case. The accused had instructed him to supply materials to Anwar Ansari and Ehsan Ansari but payments were not given by those two persons. He denied the suggestion that the cheque was given by way of security and that a false case had been lodged in conspiracy with Anwar Ansari and Ehsan Ansari. He denied that price of the materials had already been paid to him. 7. CW 2 Anwar Ansari deposed that he was agent of the contractor. There was an oral agreement between the complainant and the accused. The accused had issued a cheque for Rs.99,500/-, which was dishonoured on presentation. He knew this fact as the entire transaction had taken place in his presence. During his cross-examination, he has stated that accused got the tender for construction of a godown and he was the 'Munshi. He identified the receipt of money from the accused from time to time which were marked as Exhibits A/l5 to A/l8. He denied the suggestion that the cheque was issued by way of security. 8. The accused/opposite party No.2 herein examined himself as defence witness. He deposed about the allotment of the contract for construction of a godown of the capacity 100Mt. Ton at village Kanjia with an estimated cost of Rs. 5,51,500/-. He denied the suggestion that the cheque was issued by way of security. 8. The accused/opposite party No.2 herein examined himself as defence witness. He deposed about the allotment of the contract for construction of a godown of the capacity 100Mt. Ton at village Kanjia with an estimated cost of Rs. 5,51,500/-. The allotment letter of the work dated 12.01.2012 was marked as Ext.-B. According to him since local people started disturbing him by way of 'rangdari or 'chanda, he started searching local people for completing the ongoing construction work. CW 2 Anwar Ansari became ready to complete the construction work with a condition that only on delivery of two security cheques he would start the construction work. The two security cheques were issued bearing No. 973695 drawn on S.B.I. and second cheque bearing No. 166125 drawn on Canara Bank, Ratu Road, Ranchi. On completion of the work he made payments between 11.05.2012 to 24.03.2013 of a sum of Rs. 3,81,000/-, receiving of which was proved in the case to the tune of Rs. 3,16,900/-. Anwar Ansari informed him that both cheques had been missing. In March 2013 he had issued a direction to the bankers to stop payments. However, the cheque of Rs. 99,500/- was presented by the complainant and on being dishonoured he received legal notice dated 05.04.2013. He also furnished reply on 08.05.2013, which was marked as Ext.-C. He denied the knowledge about the complainant, Samar Ansh and stated that he had later on came to know that complainant was the relative of Anwar Ansari. He had also filed a complaint case against Anwar Ansari, Ehsan Ansari and Samar Ansh on 01.08.2013, which was registered as Mandar P.S. Case No. 135 of 2013 under Sections 406, 420, 468, 120-B, 323 and 34 of the IPC. The certified copy of the F.I.R. proved by him was marked as Ext.-D. He also deposed that those 3 persons had forcibly taken his signature on the blank paper and scuffled with him when he was returning on 26.12.2013 after meeting the Investigating Officer of his case who had demanded Rs. 10,000/-. The certified copy of the F.I.R. proved by him was marked as Ext.-D. He also deposed that those 3 persons had forcibly taken his signature on the blank paper and scuffled with him when he was returning on 26.12.2013 after meeting the Investigating Officer of his case who had demanded Rs. 10,000/-. He had informed the matter to the Senior Superintendent of Police, Ranchi through an application, which was proved by him and marked as Exhibit E. He also filed a protest petition bearing No. 278 of 2015 against the submission of final form by the Investigating Officer in the Mandar P.S. Case No. 135 of 2013. The certified copy of the final form and the protest petition proved by him were marked as Exts. F and G. During his cross-examination he denied having taken building materials from the complainant and the cheque being issued against that liability. 9. Learned trial Court considered the material evidences on record and came to a finding that the complainant had failed to provide a single chit of paper to establish that the accused was having business transaction with the complainant. The entire Exhibits A to A/18 showed that it was Anwar Ansari who had received the materials from the shop of the complainant. The accused in his reply dated 08.05.2013 categorically explained the circumstances in which 2 cheques were issued to Anwar Ansari as security and that he had only put his signature on the same. This fact was also corroborated by the complainant in para 24 of his testimony. Learned trial Court was of the opinion that the accused had successfully rebutted the presumption under Sections 118 and 139 of the N.I. Act and that the complainant had to successfully establish the case beyond all reasonable doubts by showing that there was legally enforceable debt existing against the accused for which the cheques were issued. Learned Court also found that though CW 2 declared himself as 'Munshi' of the accused but the accused had himself filed a criminal case against him and as such his statement was not much reliable. The act of the accused to instruct the Banker to stop payment of the cheques had also been taken in his favour in the matter of rebuttal of presumption. Based on these findings, learned trial Court has acquitted the accused of the charge for the alleged offence. 10. The act of the accused to instruct the Banker to stop payment of the cheques had also been taken in his favour in the matter of rebuttal of presumption. Based on these findings, learned trial Court has acquitted the accused of the charge for the alleged offence. 10. Learned counsel for the petitioner submits that statement of CW 2 in specific clearly showed that work allotted to the accused/opposite party No. 2 for construction of godown was being executed through Anwar Ansari who was agent/Munsi This relationship between Principal and the Agent had not' been denied by the accused in his deposition. In course of such execution materials were supplied by the complainant to Anwar Ansari, 'munshi of the accused. There was a definite liability on the main proponent/Principal for whom the work was executed by CW 2 Anwar Ansari. Learned counsel for the petitioner has however not been able to show that the complainant had issued any bills in the name of the accused for those supplies made or that those material supplied were at his insistence or received by the accused to create such liability. Learned counsel for the petitioner has however submitted that the entire material evidence if taken together would complete a chain of circumstances to establish the guilt of the accused under Section 138 of the N.I.Act. Therefore, special leave to appeal be granted. 11. Learned counsel for the opposite party No. 2 has defended' the impugned judgment. He submits that findings rendered by learned trial Court are well reasoned and need no inter-' ference. The accused had through his statement and evidence in the nature of bills issued by the complainant in the name of Anwar Ansari CW 2, Exts.-A to A/14 clearly been able to show that the transaction was between the complainant and Anwar Ansari. Further the receipts at Exts.-A/15 to A/18 also clearly show that for execution of work by Anwar Ansari payments were duly made to the tune of Rs. 3,16,900/- between 11.05.2012 to 24.03.2013. In the absence of liability of the accused to honour the cheques, which were issued in the nature of security, in the circumstances explained by him, the learned trial Court rightly came to a finding that complainant had failed to establish the ingredients of offence by showing the existence of legally enforceable debt against the accused. In the absence of liability of the accused to honour the cheques, which were issued in the nature of security, in the circumstances explained by him, the learned trial Court rightly came to a finding that complainant had failed to establish the ingredients of offence by showing the existence of legally enforceable debt against the accused. The order of acquittal therefore is not worthy of being disturbed. 12. We have considered the submission of the parties gone through the impugned judgment and also applied our anxious mind to the material evidences on record. On the conspectus of findings recorded by the learned trial Court on the basis of material evidences on record, we do not find sufficient grounds made out by the complainant petitioner herein for grant of special leave to appeal to him as the complainant had failed to establish the necessary ingredients of legally enforceable debt existing against the opposite party No.2. 13. The instant petition being devoid of merit is accordingly dismissed. Petition dismissed.