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2022 DIGILAW 171 (UTT)

Mohammad Rizwan @ Pappu v. State of Uttarakhand

2022-06-29

RAVINDRA MAITHANI

body2022
JUDGMENT : 1. The challenge in the instant revision is made to the followings:- (i) Judgment and order dated 30.09.2021, passed in Complaint Case No. 949 of 2019, Naseem Ahmad vs. Mohammad Rizwan @ Pappu and another (“the case”), by the Court of Judicial Magistrate, First, Haridwar. By it, the revisionists have been sentenced under Section 138 of the Negotiable Instruments Act, 1881 (“the Act”) and sentenced to six months simple imprisonment along with fine of Rs.7,20,000/-. It has further been directed that out of the , Rs.7,10,000/- shall be paid to the private respondent and; (ii) Judgment and order dated 25.02.2021, passed in Criminal Appeal No. 230 of 2019, Mohammad Rizwan @ Pappu and another vs. State, passed by the Court of Third Additional Sessions Judge, Haridwar (“the Appeal”). By it, the judgment and order dated 30.09.2019, passed in the case has been confirmed. 2. Heard learned counsel for the parties and perused the records. 3. Facts necessary to appreciate the controversy are in a very short span. They are as follows. The private respondent filed a complaint under Section 138 of the Act against the revisionists. According to it, the revisionist no. 1 is sole proprietor of the trading firm. Revisionist no. 1 purchased scrap from the private respondent on 25.04.2019. The total cost of the scrap was Rs.6,28,360/-. The revisionist no. 1 gave a cheque dated 25.04.2019 as consideration. But, when presented on 04.06.2019, it was dishonored. The information was given to the private respondent on 08.06.2019. Thereafter, a notice was given on 10.06.2019 to the revisionists, but they did not pay the money. Hence, the complaint was filed on 09.07.2019, cognizance taken. The revisionist no. 1 was read over the accusations on 08.09.2014. In order to prove its case, the private respondent appeared himself as PW1. He reiterated the version of the complaint and produced various documents, including the cheque Ex. A-1, Bank memo Ex. A-2, deposition of cheque in the bank receipt Ex. A-3, a copy of the notice Ex. A-4, and various documents pertaining to the transactions. He also submitted that the original Bill Book Ex. A-10, certain photographs, the documents regarding the income tax department Ex. A-13, and records of commercial tax Ex. A-16. 4. The revisionist no. 1 appeared as DW1. A-2, deposition of cheque in the bank receipt Ex. A-3, a copy of the notice Ex. A-4, and various documents pertaining to the transactions. He also submitted that the original Bill Book Ex. A-10, certain photographs, the documents regarding the income tax department Ex. A-13, and records of commercial tax Ex. A-16. 4. The revisionist no. 1 appeared as DW1. According to him, though he had purchased the articles from the private respondent, but the cheque was given as a security for its payment. According to DW1, who is revisionist no. 1, he had returned all the money due to the private respondent. He also filed some documents, but they have not been exhibited. 5. After examining, the revisionist no. 1, under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”), by the impugned judgment and order dated 30.09.2019 passed in the case, the revisionist no 1 has been convicted and sentenced. It has been unsuccessfully challenged in the appeal. 6. Learned counsel for the revisionists has raised two issues, which is as hereunder:- (i) It has not been even shown by the private respondent as to how did he get that much scrap on 25.04.2019 in a single day and how did he transfer it to the revisionist no. 1 and; (ii) A ledger book was filed by the revisionists in the case, but it has not been considered. 7. It is a revision. This Court cannot sit as a Court of appeal in this revision. Appreciation of evidence is not generally done in such proceedings. The scope is to the extent of examining the correctness, legality and propriety of an impugned judgment. Of course, evidence may be appreciated, if the findings recorded is perverse, i.e. against the weight of evidence or if the material evidence is ignored or irrelevant material is considered by the Court while passing the impugned judgment. 8. In any criminal case, the prosecution has undoubtedly has to prove its case beyond reasonable doubt. There are various presumptions which can be raised under the provisions of the Act. For example, under Section 118 of the Act, presumptions may be raised with regard to the cheques, about date, consideration, time of acceptance, etc. 9. Section 139 of the Act also raises presumption that the holder of a cheque receives it, for a discharge, in whole or in part, of any debt or other liability. For example, under Section 118 of the Act, presumptions may be raised with regard to the cheques, about date, consideration, time of acceptance, etc. 9. Section 139 of the Act also raises presumption that the holder of a cheque receives it, for a discharge, in whole or in part, of any debt or other liability. The presumptions could be rebutted by the standard of preponderance of probabilities. 10. In the instant case, the private respondent filed documents and proved them. The revisionist no. 1, has in his examination-in-chief admitted that he had purchased the scrap. He has admitted that he gave a cheque, but according to him, the cheques was given, a security for payment, which he finally made to the private respondent. But, revisionist no.1 could not show even one document or one receipt given by the private respondent, by which he received the consideration. DW1 Rijwan, who is revisionist no. 1, has stated in his examination recorded on 16.03.2017 that on various dates, he paid money to the private respondent also and gave him certain articles. But, how was it given? Even otherwise, on 16.03.2017, when revisionist no. 1 Mohd. Rijwan was examined, in the second line, he has stated that on 22.04.2009, he paid Rs.1,00,000/- to the private respondent. The cheque, in question, is dated 25.04.2009. The transaction, according to the private respondent took place on 25.04.2009. Then, how could this money, which was allegedly paid by the revisionist no. 1 on 22.04.2009, be taken into consideration as a discharge of the liability, which the revisionist no. 1 incurred on 25.04.2009? 11. The argument that it has not been established as to how the private respondent could get scrap in such huge volume, which was transferred on the same day, has no merit for acceptance. This is so because DW1, Mohd. Rijwan has himself admitted to have taken scrap on that day. He has admitted to have given cheque on that day. He has accepted his liability. It is a legally enforceable liability. 12. The second argument is with regard to the ledger book. This Court wanted to know from learned counsel for the revisionists as to where is the proved ledger book? Has it been proved in accordance with law? Has it been exhibited? Can it be read in the evidence? The answer is in negative. It is a legally enforceable liability. 12. The second argument is with regard to the ledger book. This Court wanted to know from learned counsel for the revisionists as to where is the proved ledger book? Has it been proved in accordance with law? Has it been exhibited? Can it be read in the evidence? The answer is in negative. The revisionists did not file any document stating that in fact, the private respondent did receive the consideration post issuance of cheque. The revisionists did not rebut the presumption, which were in favour of the private respondent. The private respondent did prove its case beyond reasonable doubt. There is no illegality, error and impropriety in the impugned judgment. Therefore, the revision has no substance and deserves to be dismissed. 13. Accordingly, the revision is dismissed.