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Madhya Pradesh High Court · body

2020 DIGILAW 311 (MP)

Ashik Hussain v. Kamal

2020-02-27

S.K.AWASTHI

body2020
ORDER 1. The applicant/accused has preferred the present revision petition under section 397/401 of the CrPC against judgment dated 8.4.2019 passed by Second Additional Sessions Judge, Indore in Criminal Appeal No. 372/2016, whereby the judgment passed by the Judicial Magistrate First Class, Indore in Criminal Case No. 10056/2013 has been upheld, by which the applicant has been convicted for the commission of offence punishable under section 138 of the Negotiable Instruments Act, 1881 and sentenced to undergo 6 months RI and to pay compensation amount of Rs. 3.90 Lacs to the complainant/respondent under section 357(3) of the CrPC 2. Briefly stated facts of the case are that the respondent/complainant Kamal filed a private complaint against the applicant/accused alleging that he advanced a loan amount of Rs. 3.0 Lacs to the applicant for his personal need. For repayment of the aforesaid amount, the applicant had issued cheque No. 005647 date 15.1.2013 amounting to Rs. 3.0 Lacs. When this cheque was presented by the respondent in his bank account for encashment the same got dishonoured with the remark 'insufficient fund', then respondent/complainant gave statutory notice to the applicant for payment of the cheque amount but even after service of the notice, the applicant did not pay the said amount within stipulated time period. 3. On the basis of the aforesaid complaint, the trial Court has taken cognizance against the applicant for the commission of offence punishable under section 138 of the Negotiable Instruments Act, 1881. After appearing the applicant/accused particular of offence was read over to the applicant and he abjured his guilt and pleaded for trial. He took a defence that when he was going from Noorani Nagar to Chandan Nagar, his cheque book was lost and he reported the missing of his cheque book to the Police-Station-Chandan Nagar, Indore but the respondent by misusing the aforesaid cheque book falsely implicated the applicant in the present crime. 4. The trial Court after appreciating the evidence adduced by the parties found the applicant guilty for commission of offence punishable under section 138 of the NI Act and sentenced him as mentioned herein above in para No.1 of this order. Being aggrieved with the aforesaid judgment of conviction, the applicant has preferred Criminal Appeal No. 372/2016 before the Sessions Court, which was also got dismissed by the impugned judgment. Hence, the applicant has preferred the present revision petition before this Court. 5. Being aggrieved with the aforesaid judgment of conviction, the applicant has preferred Criminal Appeal No. 372/2016 before the Sessions Court, which was also got dismissed by the impugned judgment. Hence, the applicant has preferred the present revision petition before this Court. 5. Learned counsel for the applicant submitted that according to the complainant/respondent, the applicant/accused had borrowed loan amount of Rs. 3.0 Lacs for his personal need, which was given to him as relation between the two was cordial. The respondent/complainant has failed to prove the source of his income, from which he has given the aforesaid amount to the applicant/accused. It is also submitted that under section 139 of the NI Act existence of debt or other liabilities has to be proved by the respondent/complainant in the first instance and thereafter, the burden of proving shifted on the applicant. The complainant/respondent has failed to prove that he has advanced any loan amount of Rs. 3.0 Lacs to the applicant/respondent, therefore, no presumption of existence of any legal debt or other liabilities is taken against the applicant. It is further submitted that no statutory notice has been served upon the applicant/accused regarding the dishonour of the cheque. Therefore, the trial Court as well as the appellate Court have committed error in convicting the applicant/accused for the alleged offence. Under these circumstances, learned counsel for the applicant prays for setting aside of the impugned judgment and conviction of the applicant. 6. Learned counsel for the respondent/complainant has opposed the prayer by contending that the cheque in question was issued by the applicant and he has not denied his signature on the said cheque towards discharge of legal debt and other liability. Hence, he prayed for rejection of the petition. 7. Having heard learned counsel for the parties and perused the records. 8. Learned counsel for the applicant urge that the service of notice is a mandatory requirement, however, the complaint filed by the respondent/ complainant does not satisfy the requirement of service of notice. It is urged that the complaint, itself, does not disclose that any notice, as such, was served upon the accused. 9. The learned Counsel for the respondent urge that notice was sent under registered post on 11.2.2013 to the accused but neither the postal cover nor the acknowledgment from the accused was received. It is urged that the complaint, itself, does not disclose that any notice, as such, was served upon the accused. 9. The learned Counsel for the respondent urge that notice was sent under registered post on 11.2.2013 to the accused but neither the postal cover nor the acknowledgment from the accused was received. The respondent had waited until expiry of fifteen days and then he filed the complaint. The learned Counsel for the respondent further submitted that the statutory notice was sent under the registered post with acknowledgment due and service of notice shall be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved. The learned Counsel for the respondent relied upon section 27 of the General Clauses Act, 1897. 10. In the case of In Indian Bank v. Datla Venkata Chinna Krishnam Raju, AIR 1989 SCC 908, the Hon'ble apex Court has observed in para 13 as under: "13. Notice was sent by registered post but neither the A.D. card nor the unserved registered cover has been received back by the Court. We, therefore, presumed, that the respondent has been served.'' 11. In the context of the said pronouncement, from the perusal of the record, it appears that the respondent sent a notice to the applicant for payment of the cheque amount under the speed post with acknowledgment due, however, neither unserved postal cover nor the acknowledgment is received by the applicant. Under these circumstances, presumption would be drawn against the applicant (drawer of the cheque) under the Provision of section 27 of the General Clauses Act, 1897. The complaint filed after expiry of fifteen days from the date of the said notice, which satisfy the requirement of law. Therefore, the aforesaid objection raised by the learned counsel for the applicant is not acceptable that no notice has been sent by the respondent for payment of the cheque amount. 12. Other contention raised by the learned counsel for the applicant is that the respondent/complainant has failed to proved his source of income from which he has given the aforesaid amount to the applicant, therefore, the Courts' below have committed error in convicting the applicant for the said offence. 12. Other contention raised by the learned counsel for the applicant is that the respondent/complainant has failed to proved his source of income from which he has given the aforesaid amount to the applicant, therefore, the Courts' below have committed error in convicting the applicant for the said offence. However, the aforesaid contention of the applicant has no force in the light of judgment passed by the Hon'ble apex Court in the case of Rohitbhai Jivanlal Patel v. State of Gujrat, 2019 SCC Online SC 389, in which while dealing with the same issue, the Hon'ble apex Court held in paragraph No.30 as under: "30. The observations of the trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witnesses, or that the witness of the complaint was more in know of facts etc. would have been relevant, it the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations dod not stand in conformity with the presumption existing in favour of the complainant by virtue of sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards the source of funds were not of relevant consideration, while examining if the accused has been able to rebut the presumption or not." 13. From the findings given by the trial Court, it appears that after considering the evidence available on record, the trial Court was of the view that the cheque was issued by the applicant/accused, which contends his signature. From the findings given by the trial Court, it appears that after considering the evidence available on record, the trial Court was of the view that the cheque was issued by the applicant/accused, which contends his signature. Although, the applicant/accused examined his son Hussain in his defence, who deposed that his father never took any loan from the complainant/respondent nor he has issued any cheque for repayment of the said amount, he further deposed that cheque book, mobile phone and identity card of his father had fallen somewhere and his father also informed the police but in his cross-examination, he accepted that his father had not made any complaint in the bank regarding missing of his cheque book. He also accepted in para 13 of the cross-examination that his father has taken a loan from the complainant and this admission of Husain (DW1) supports the case of the respondent. Under these circumstances, this Court has come to the conclusion that the applicant/accused has failed to rebut the respondent/complainant regarding existence of debt or liability. 14. It is well settled that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or it is unreasonable or it is based on consideration of non-relevant material. The order cannot be set aside merely on the ground that another view is possible. 15. On the basis the aforesaid discussion, I am of the view that the Courts below have not committed any error in convicting the applicant for the commission of offence punishable under section 138 of the Negotiable Instruments Act, 1881, therefore, the impugned judgments passed by the Courts below regarding the conviction of the applicant is hereby affirmed, however, looking to the old age of the applicant, his jail sentenced is hereby reduced from 6 months RI to 3 months RI and he is also directed to pay compensation amount of Rs. 3.90 Lacs to the complainant/respondent under section 357(3) of the CrPC out of which he has already deposited 50% amount before the trial Court. Accordingly, the present revision petition is hereby partly allowed with the aforesaid modification as indicated here-in-above. 16. The applicant is on bail, therefore, his bail bond and surety bond stands discharged. 3.90 Lacs to the complainant/respondent under section 357(3) of the CrPC out of which he has already deposited 50% amount before the trial Court. Accordingly, the present revision petition is hereby partly allowed with the aforesaid modification as indicated here-in-above. 16. The applicant is on bail, therefore, his bail bond and surety bond stands discharged. The applicant is directed to surrender before the trial Court for serving out his remaining custodial sentence within a period of 15 days from today. 17. Let a copy of this order be sent to the Courts' below along with the records for information and necessary compliance. ..................