Madhya Pradesh High Court
Vikram Chouhan vs Sunil Gupta on 17 July, 2023
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 17 th OF JULY, 2023
CRIMINAL REVISION No. 745 of 2014
BETWEEN:-
VIKRAM CHOUHAN S/O MANGILAL CHOUHAN, AGED
50 YEARS, 80, NEW NO.150 SHIVNAGAR NEAR
MUSAKHEDI WATER TANK INDORE (MADHYA
PRADESH)
.....PETITIONER
( BY SHRI PRAVIN KUMAR NEWALKAR - ADVOCATE)
AND
1. SUNIL GUPTA S/O SHRI RAMESHCHANDJI GUPTA,
AGED 34 YEARS, OCCUPATION: BUSINESS 44 SANJANA
PARK BEHIND AGRAWAL PUBLIC SCHOOL, INDORE
(MADHYA PRADESH)
2. DISTRICT MAGISTRATE, INDORE
.....RESPONDENTS
(NONE FOR RESPONDENT NO.1 THOUGH DULY SERVED)
(SHRI KAPIL MAHANT - PANEL LAWYER FOR RESPONDENT NO.2)
T h is revision coming on for orders this day, t h e cou rt passed the
following:
ORDER
1 / This criminal revision has been filed by the petitioner under Section 397 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the impugned judgment dated 7.3.2014 passed by the Additional Sessions Judge Indore in Criminal Appeal No. 694/2012 affirming the judgment of conviction and sentence dated 4.10.2012 passed by the JMFC Indore in Criminal Case No. 4059/2011, whereby the petitioner/accused has been convicted for the offence Signature Not Verified Signed by: BHUNESHWAR DATT Signing time: 19-07-2023 13:13:00 2 under Section 138 of the Negotiable Instruments Act (in short "NI Act") and sentenced to 6 months R.I. with a direction to pay compensation of Rs.1,50,000/- to the respondent No.1/complainant.
2 / Brief facts of the case are that the complainant/respondent gave Rs. 1.50 lakhs to petitioner/accused. For payment of said amount, the accused gave cheque No. 182144 dated 15.1.2011 to the complainant. Thereafter complainant presented the said cheque in his bank but it was returned with caption insufficient fund. After that the complainant gave a notice to the accused, but accused did not pay any money despite of service of notice upon him. Thereafter complaint has filed complaint under section 138of NIA before the trial court.
3/ After completion of the trial, learned trial Court has found guilty to the petitioner/accused for the offence under Section 138 of the NI Act and sentenced to 6 months R.I. with compensation under Section 357 of Cr.P.C. to the tune of Rs. 1.50 lakhs to the complainant. Petitioner has filed an appeal before the first appellate court but the same was dismissed by the first appellate court by affirming the impugned judgment passed by the trial Court. Against this order, petitioner has preferred this criminal revision.
4/ Learned counsel for the petitioner submits that both the courts below have erred in overlooking the fact that no document or witness substantiating the claim of respondent of lending aforesaid cash amount to the petitioner when there is gap of about 1 year and 9 months between the lending of money and date of cheque. The respondent had failed to prove that he had sufficient capacity and source to lend the aforesaid amount. The petitioner did not know to write a cheque and that writing and signature were in different ink which Signature Not Verified Signed by: BHUNESHWAR DATT Signing time: 19-07-2023 13:13:00 3 forfeits the claim of petitioner that the respondent had misused the cheque. The judgments passed by the courts below are bad in law. Hence he prays that the impugned orders passed by both the courts below be set aside and the petitioner be acquitted for the offence under Section 138 of NI Act.
5/ Nobody appeared on behalf of respondent no. 1 though duly served. 6/ Per contra, learned counsel for the respondent no.2 opposes the prayer.
7/ Both the parties heard and length and perused the entire record. 8/ There are five essential ingredients of offence under Section 138 of NI Act :-
i) Drawing of the cheque in discharge of legally recoverable debt,
ii) Presentation of the cheque with the bank,
iii) Returning of the cheque unpaid by the drawee bank,
iv) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and
v) Failure of the drawer to make payment within 15 days of the receipt of the notice.
9/ Petitioner in his examination under Section 313 of Cr.P.C. before the trial Court in Question No.9 admits that he has signed some blank cheque, and cheque book was kept by respondent no. 1, therefore, undoubtedly the petitioner is the signatory of the cheque in question. From the evidence of complainant/respondent no.1 Sunil Gupta (PW-1) it is proved that the cheque was issued on 15.1.2011 and as per the petitioner, he has given blank cheque to complainant/respondent No. 1. But despite of notice (Ex.P-4) through postal receipt (Ex.P-5) and postal acknowledgement (Ex.P-6) he did not give any reply in rebuttal to the averment of the notice regarding the aforesaid cheque. The Signature Not Verified Signed by: BHUNESHWAR DATT Signing time: 19-07-2023 13:13:00 4 applicant Vikram Chouhan in his statement under section 315 of Cr.P.C. before the trial court admits that he has signed the cheque Ex.P-1. Therefore, both the courts below have rightly drawn presumption against the petitioner.
10/ The Hon'ble Apex Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed reported in 2008(1) MPLJ SC 441 has held that before filing the complaint under Section 138 of the NI Act, giving a demand notice to the drawer in terms of Clause (b) of the proviso to Section 138 of the NI Act is mandatory. In the instant case complainant/respondent Santosh Kumar has categorically stated that he has sent a notice (Ex.P/3) to the petitioner by registered post and postal receipt is Ex.P/4 and postal acknowledgement is Ex.P/5, which was signed by the petitioner. Defence witness Biharilal also admits that notice sent by the complainant has been received on 17.8.2011 by the petitioner, but they did not reply to the same. Therefore, contention of learned counsel for the petitioner that there was no transaction between both the parties, cannot be relied upon.
11/ In the instant case the complainant/respondent no. 1 Sunil Gupta has categorically stated that he has given a notice (Ex.P-4) to the applicant by registered post and receipt (Ex.P-5) and postal acknowledgement is Ex.P-6) which was signed by petitioner. The petitioner himself admits in his cross examination that he got the notice Ex.P-4 but he did not given any reply, therefore, contention of counsel for petitioner that there was no transaction between both the parties cannot be relied upon.
12 In the instant case signature of the petitioner on the cheque is not denied by the petitioner, due to which presumption shall be raised that cheque was issued in discharge of any debt or liability. Petitioner has failed to rebut the Signature Not Verified Signed by: BHUNESHWAR DATT Signing time: 19-07-2023 13:13:00 5 presumption under Section 139 of the NI Act.
1 3 On the basis of the aforesaid discussion, this Court is of the considered view that both the courts below have not committed any error in holding that the petitioner has issued the cheque in question for the discharge of any legal debt or liability.
14. So far as the quantum of sentence is concerned, a perusal of the order of appellate court reveals that petitioner is suffering from paralysis and even he is not in a position to move himself. He was brought before the appellate court with the help of family members. Therefore, having regard to the serious illness of petitioner, jail sentence of 6 months awarded to him by both the courts below is hereby set aside by increasing amount of compensation looking to the fact that complainant/respondent no. 1 was deprived from his money of Rs. 1.50 lakhs since 2011 and suffered financial loss. Looking to the financial loss and interest rate of the Nationalize Bank, it would be appropriate to enhance the compensation amount. The petitioner is directed to pay the compensation of Rs. 3,00,000/- to respondent no. 1 within a period of 60 days from today.
15 It is made clear that if petitioner fails to pay the amount of Rs. 3,00,000/- to respondent no. 1 within the stipulated period, the order of trial court shall be revived and petitioner shall suffer jail incarceration as already imposed by the trial court.
16 Accordingly this Criminal Revision is disposed off. 17 Let the record of both the courts below be sent back to the concerned court along with a copy of this order.
C.C. as per rules.
Signature Not Verified Signed by: BHUNESHWAR DATT Signing time: 19-07-2023 13:13:00 6(ANIL VERMA) JUDGE BDJ Signature Not Verified Signed by: BHUNESHWAR DATT Signing time: 19-07-2023 13:13:00