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2019 DIGILAW 218 (RAJ)

Sharda Rani v. State of Rajasthan Through PP, Raj

2019-01-17

PANKAJ BHANDARI

body2019
JUDGMENT Pankaj Bhandari, J. - Petitioner has preferred this Criminal Revision Petition aggrieved by judgment & order dated 10.11.2014 passed by Judicial Magistrate No.2, Alwar whereby the Court below has convicted the petitioner for offence under Section 138 of Negotiable Instruments Act and has sentenced her to undergo two years simple imprisonment and a fine of Rs.98,00,000/- has been imposed and against the judgment & order dated 12.12.2018 passed by Additional Sessions Judge No.1, Alwar, whereby appeal preferred by the petitioner was partly allowed, the sentence of two years was reduced to six months but compensation amount was increased from Rs.98,00,000- to Rs.1,47,00,000/-. 2. It is contended by counsel for the petitioner that complainant filed a complaint stating therein that he is doing joint business of share trading with the accused. He jointly purchased a property with the accused and profit of Rs.1,25,00,000/- was outstanding against the accused, in lieu of that amount Cheque bearing No.117465 drawn on State Bank of Bikaner and Jaipur, Branch Alwar dated 21.12.2012 of Rs.98,00,000/- was given by the accused. The said cheque was dishonoured. 3. It is contended that there is no business transaction between complainant and the petitioner. Complainant has come up with a case that he was running a business in the name of Agarwal Investment Consultant and accused was a partner in the said business. It is argued that no document with regard to Agarwal Investment Consultant was produced before the Court below. PW-1 Shiv Kumar has admitted that said firm is not registered. There was no material before the Court below to have come to the conclusion that any liability existed for which the cheque was given to the complainant. 4. It is also contended that Cheque bearing No.117465 was part of the cheque book issued in the year 2005, Cheque No.117464 was given to UIT, Alwar when property was jointly purchased by the petitioner and complainant. Complainant either kept the Cheque No.117465 with him or had stolen it and then lodged it after seven years. 5. It is also contended that balancesheet of the complainant and accused-petitioner was submitted by the complainant. In the balancesheet of M/s Agarwal Investment Consultant of which accused-petitioner has been shown as proprietor, the total amount which is shown as liability is to the tune of Rs.2,36,000/-. 5. It is also contended that balancesheet of the complainant and accused-petitioner was submitted by the complainant. In the balancesheet of M/s Agarwal Investment Consultant of which accused-petitioner has been shown as proprietor, the total amount which is shown as liability is to the tune of Rs.2,36,000/-. In the balancesheet of the complainant of year 2011-2012 his assets including loans & advances and sundry debtors is to the tune of Rs.2,55,000/-. There was no material before the Court below to have come to the conclusion that an amount of Rs.98,00,000/- was outstanding towards the petitioner and the cheque was paid for discharge of that liability. 6. It is further contended that a suit was filed by the petitioner for partition of the property on 08.01.2013. Complainant was served and he appeared before the Court on 16.01.2013, thereafter, by antedating the cheque presented the same on 23.01.2013. It is also contended that notices were purposely sent to a wrong address. 7. Learned Counsel appearing for the complainant has opposed the present Criminal Revision Petition. His contention is that there is concurrent finding of two Courts and there is ample evidence to the effect that parties were running a joint business. Courts below have dealt with all the arguments now being raised by the counsel for the petitioner. The impugned order cannot be said to be improper or suffering from any illegality. 8. It is also contended that it is a regular practice that business are being run without constituting a firm and accounts are being maintained without submitting returns before the Income Tax Authority. In view of that matter, it would not be proper to set-aside the order passed by the Court below. 9. It is also contended that notices were sent on permanent address of the petitioner, hence, contention that notices were not served on the address of the petitioner has no force. It is also contended that petitioner had not appeared as defence witness to controvert the statement of the complainant and hence the statement as made by the complainant has to be accepted as truthful. 10. I have considered the contentions. 11. Section 138 of the Negotiable Instruments Act, comes into play when a cheque is given for the discharge in whole or in part of any debt or liability and the same is returned by the Bank unpaid. 10. I have considered the contentions. 11. Section 138 of the Negotiable Instruments Act, comes into play when a cheque is given for the discharge in whole or in part of any debt or liability and the same is returned by the Bank unpaid. It was for the complainant to establish that the cheque was paid in discharge of any debts or other liability. Complainant has come up with a case that out of the profit earned by Agarwal Investment Consultant, his share of profit of Rs.1,25,00,000/- was with the petitioner, Rs.70,00,000/- was with son and daughter of petitioner and in discharge she had given a cheque of Rs.98,00,000/-. Complainant has not produced any document with regard to the firm and he has admitted in his cross-examination that no firm was registered in the name of Agarwal Investment Consultant. Complainant has not produced any document or record to establish that an amount of Rs.1,25,00,000/- was profit of Agarwal Investment Consultant and his share of profit of Rs.1,25,00,000/- was with the petitioner. 12. It is also pertinent to note that complainant and petitioner purchased a property jointly and an amount of Rs.5,55,000/- was paid by the petitioner to UIT, Alwar, through Cheque No.117464 on 09.12.2005. The next Cheque bearing No. 117465, is the one which was presented to the Bank and which is the disputed cheque. It is further important to note that at the time when Cheque No.117464 was issued on 09.12.2005, the Bank Account Number of petitioner was 25027, subsequently, the Bank Account Number was changed and it became an eleven digit account number and when the disputed cheque was lodged, Bank Account Number was 51026037385 which goes to show that signed cheque of petitioner remained with the complainant or was stolen by him and then presented by him to the Bank. 13. Case of the complainant that an amount of Rs.1,25,00,000/- was his share of profit and was with the petitioner and in addition Rs.70,00,000/- is stated to be with son and daughter of petitioner, whereas, in his balancesheet he has not shown the said amount as loan & advances. 13. Case of the complainant that an amount of Rs.1,25,00,000/- was his share of profit and was with the petitioner and in addition Rs.70,00,000/- is stated to be with son and daughter of petitioner, whereas, in his balancesheet he has not shown the said amount as loan & advances. The total loan including sundry debtors as shown in the balancesheet of April, 2011 to March, 2012 is only Rs.2,56,000/-, the net profit shown in the balancesheet is to the tune of Rs.3,52,000/- only, whereas, now in the complaint the complainant has mentioned his profit lying with the accused-petitioner and his children to the tune of Rs.1,95,00,000/-. There was no material whatsoever before the Court below to have come to the conclusion that complainant was running the firm in the name of Agarwal Investment Consultant and petitioner was the partner with him. No document pertaining to the business was submitted before the Court below to establish that there was profit in the business and the amount was outstanding towards petitioner and was a debt or liability. 14. Courts below have utterly failed in convicting the petitioner for the alleged offences without there being an iota of evidence, that the cheque was issued in discharge of debt or liability, Court has also not pondered to consider the defence that cheque was of year 2005 and was either retained or stolen by the complainant. Hence, this Court deems it proper to allow the present Criminal Revision Petition. 15. In the result, Criminal Revision Petition filed by petitioner is allowed. The judgment and order passed by the Courts below are quashed and set aside. The petitioner is acquitted of the charges levelled against her. She is in jail, she be set at liberty forthwith, if not required in any other cases or for any other purpose. 16. Petitioner is directed to furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the petitioner on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months. 17. Application for suspension of sentence stands disposed.