Telangana High Court
Sunil Kumar Jain, vs Dinesh Kumar Jain, on 15 February, 2022
Author: G Sri Devi
Bench: G Sri Devi
HONOURABLE JUSTICE G. SRIDEVI
CRL.R.C. No.41 of 2013
JUDGMENT:
This Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 against the judgment, dated 03.01.2013, passed in Crl.A.No.269 of 2010, wherein the learned IV-Additional Metropolitan Sessions Judge, Hyderabad, confirmed the judgment, dated 26.07.2010, passed in C.C.No.326 of 2008 on the file of the XIV-Additional Judge-cum-XVIII-Additional Chief Metropolitan Magistrate at Hyderabad.
The facts of the case are as under:
The 1st respondent herein, who is the complainant before the trial Court, filed a private complaint under Section 200 Cr.P.C. against the revision petitioner/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, stating that he was doing business in gold jewellery and supplies the same to various traders; that the revision petitioner/accused approached him in September, 2004 and requested him for a hand loan of Rs.32.00 lakhs for his business purposes with a promise to repay the same within a short time; that between September, 2004 and November, 2004, the 1st 2 GSD, J Crlrc_41_2013 respondent/complainant gave an amount of Rs.32,00,000/- on various occasions to the revision petitioner/accused; that, on 30.07.2005, the revision petitioner/accused executed a Memorandum of Understanding promising to repay the amount as per the terms and conditions mentioned in the said Memorandum of Understanding and issued three post dated cheques, one cheque for Rs.5,00,000/- and two cheques for Rs.1,00,000/- each towards discharge of the said debt and that when the said cheques were presented for encashment, the same were dishonoured on 24.11.2005 on the ground that the revision petitioner/accused issued instructions to the banker to stop payment. Therefore, the 1st respondent/complainant got issued notice, to which the revision petitioner/accused gave a reply with false contents. As such, the 1st respondent/complainant filed a complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act').
On behalf of the 1st respondent/complainant, P.Ws.1 and 2 were examined and Exs.P1 to P12 were marked. On behalf of the revision petitioner/accused, D.Ws.1 and 2 were examined and Exs.D1 and D2 were marked.
3
GSD, J Crlrc_41_2013 The trial Court, after considering both the oral and documentary evidence found the revision petitioner/accused guilty for the offence punishable under Section 138 of the Negotiable Instruments Act and accordingly convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay compensation of Rs.10,000/- to the 1st respondent/complainant, in default, to undergo simple imprisonment for three months. Aggrieved by the same, the revision petitioner/accused preferred Crl.A.No.269 of 2010 before the IV-Additional Metropolitan Sessions Judge, Hyderabad. Vide judgment, dated 03.01.2013, the learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial Court.
None appears on behalf of the 1st respondent/complainant. Heard learned Counsel for the revision petitioner/accused, learned Assistant Public
Prosecutor appearing for the 2nd respondent/State and perused the record.
Learned Counsel for the revision petitioner/accused would submit that the 1st respondent/complainant has no capacity to lend such a huge amount of Rs.32.00 lakhs. It is 4 GSD, J Crlrc_41_2013 further submitted that the 1st respondent/complainant, who was examined as P.W.1, has admitted in his evidence that though he was an income tax assessee, the returns were not filed in the Court and he did not know whether the present transaction was shown in his income tax returns or not and that his income is only Rs.20,000/- to Rs.30,000/- per month. It is further submitted that when the revision petitioner/accused disputed the financial capacity of the 1st respondent/complainant, the burden shifts on the 1st respondent/complainant to prove the same. It is also submitted that the 1st respondent/complainant has not proved his source of funds, the mode, the time or place when he lent such huge amount of Rs.32.00 lakhs and that the revision petitioner/accused did not execute any document at the time of receipt of the loan. It is further submitted that P.W.1 also admitted in his cross-examination that the revision petitioner/accused lodged a report against him and one Abid Bhai, and the same was registered as a case in Crime No.353 of 2005 of Humayun Nagar P.S., for the offences punishable under Sections 342, 347 and 506 of I.P.C., stating that the 1st respondent/complainant and one Abid had forcibly taken his signatures on twenty cheque leaves bearing Nos.247161 to 5 GSD, J Crlrc_41_2013 247180 including the impugned cheques, Memorandum of Understanding and other documents. It is also submitted that apart from filing the present case against the revision petitioner/accused in Hyderabad, the 1st respondent/complainant also filed seven cases of a similar nature in the Courts at Mumbai in connection with the alleged dishonour of the above cheques arising out of the same transaction. Out of those seven cases, two cases were ended in acquittal and the remaining five cases were withdrawn on account of a compromise between the parties. It is further submitted that the revision petitioner/accused entered into a compromise with the 1st respondent/complainant and the 1st respondent/complainant filed a compromise petition in Crl.R.C.M.P.No.4021 of 2013 on 10.12.2013, but the 1st respondent/complainant has withdrawn his consent for compromise after receiving Rs.3.00 lakhs through demand drafts. Therefore, prayed to allow the revision. In support of his contentions he relied upon the following judgments:-
1. Basalingappa v. Mudibasappa1
2. Meters and Instruments Private Limited and others v.
Kanchan Mehta2 1 (2019) 5 SCC 418 2 (2018) 1 SCC 560 6 GSD, J Crlrc_41_2013 Learned Assistant Public Prosecutor appearing for the 2nd respondent/State would submit that the trial Court has rightly found the revision petitioner/accused guilty of the offence punishable under Section 138 of the N.I. Act and the same was confirmed by the appellate Court and, therefore, no interference is warranted.
Today, before pronouncing the judgment, the learned Counsel for the 1st respondent/complainant has appeared before this Court and submitted that both the Courts below rightly held that the 1st respondent/complainant had established his case that the cheques were issued by the revision petitioner/accused towards discharge of legally enforceable debt, which was affirmed by the appellate Court. He further submitted that the reasoning assigned by the Courts below in support of its findings in favour of the 1st respondent/complainant and against the revision petitioner/accused, is justified and that there is no reason to interfere with the concurrent findings of the Courts below and, therefore, prayed to dismiss the revision.
A perusal of the material on record would show that in order to prove his case, the 1st respondent/complainant has filed Exs.P1 to P12. The case of the 1st respondent/complainant 7 GSD, J Crlrc_41_2013 is that he advanced a sum of Rs.32,00,000/- to the revision petitioner/accused between September, 2004 and November, 2004 and thereafter on 30.07.2005, the revision petitioner/accused executed a Memorandum of Understanding, which was marked as Ex.P10. In order to discharge the said liability in part, the revision petitioner/accused issued the impugned cheques. The defence of the revision petitioner is that the 1st respondent has not advanced any amount to him and that the disputed cheques were obtained from him forcibly and that the revision petitioner/accused has lodged a complaint in Humayun Nagar Police Station, Hyderabad.
The record also reveals that during the cross-examination, the 1st respondent/complainant had admitted that the revision petitioner/accused lodged a report against him and one Abid Bhai in Crime No.353 of 2005 of Humayun Nagar Police Station, for the offences punishable under Sections 342, 347 and 506 of I.P.C. as they forcibly taken his signatures on twenty cheque leaves bearing Nos.247161 to 247180, Memorandum of Understanding and other documents. The 1st respondent/complainant has not been able to show why the revision petitioner/accused has filed a complaint against him 8 GSD, J Crlrc_41_2013 with Humayun Nagar Police Station, Hyderabad. So also, the 1st respondent/ complainant has failed to show the mode, the time and place of handing over of the amount of Rs.32,00,000/- that too in the year 2004. Further, the 1st respondent/complainant has failed to produce any record to show his profit and loss account and balance sheet and list of debtors pertaining to the year 2004 to support his case that he has lent a sum of Rs.32,00,000/- to the revision petitioner/accused.
In Basalingappa v. Mudibasappa (1 supra), the Apex Court held as under:-
"We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs.6.00 lakhs given to the accused, within two years, amount of Rs.18.00 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence. The observation of the High Court that trial Court's finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see that how the trial Court's findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence." 9
GSD, J Crlrc_41_2013 In the instant case also, the 1st respondent/complainant has failed to produce any evidence to show that he is having financial capacity to lend such huge amount of Rs.32,00,000/- to the revision petitioner/accused within a short span of three months time.
Further, the record also reveals that apart from filing the present case against the revision petitioner/accused in Hyderabad, the 1st respondent/complainant has also filed seven cases of a similar nature in the Courts at Mumbai in connection with the alleged dishonour of the above cheques arising out of the same transaction. Out of those seven cases, two cases were ended in acquittal and the remaining five cases were withdrawn on account of a compromise between the parties. That apart, in the present case, the revision petitioner/accused entered into a compromise with the 1st respondent/complainant agreeing to pay a sum of Rs.3.00 lakhs to him in two equal instalments and as per the understanding, he paid a sum of Rs.1.50 lakhs by way of Demand Draft bearing No.014393 dated 23.09.2013 and that the 1st respondent/complainant filed a compromise petition on 10.12.2013. Thereafter, the revision petitioner/accused paid a sum of Rs.1.00 by way of Demand Draft bearing No.014530 10 GSD, J Crlrc_41_2013 dated 17.12.2013 and a sum of Rs.50,000/- by way of Demand Draft bearing No.014586 dated 15.02.2014 and that the said Demand Drafts were encashed by the 1st respondent/complainant in his bank account in Indian Overseas Bank, Kalbadevi Branch, Mumbai. However, the 1st respondent/complainant has withdrawn his consent for compromise after receiving Rs.3.00 lakhs from the revision petitioner/accused through the aforesaid Demand Drafts.
For the aforesaid reasons and in view of the decision of the Apex Court referred to above and since the 1st respondent/complainant failed to establish his financial capacity, the mode, time or place when he lent such a huge amount of Rs.32,00,000/- to the revision petitioner/accused, I am of the considered view that the finding recorded by the trial Court that the 1st respondent/complainant had established that the cheques were issued towards discharge of legally enforceable debt, which was affirmed by the appellate Court, is suffered from illegality and caused miscarriage of justice. Hence, the conviction and sentence of imprisonment imposed against the revision petitioner/accused for the offence punishable under Section 138 of the N.I. Act is liable to be set aside.
11
GSD, J Crlrc_41_2013 Accordingly, the Criminal Revision Case is allowed. The conviction and sentence of imprisonment imposed by the trial Court as affirmed by the appellate Court for the offence punishable under Section 138 of the N.I. Act are hereby set aside and the revision petitioner/accused is acquitted of the said charge. Fine/compensation amount, if any, paid by the revision petitioner/accused shall be refunded to him. The bail bonds of the revision petitioner/accused shall stand cancelled.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________ JUSTICE G. SRIDEVI 15.02.2022 Gsn