Madhya Pradesh High Court
Gurunarayan vs Brijendra Bilaiya on 13 March, 2013
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Revision No.1751/2012
Gurunarayan
VERSUS
Brijendra Bilaiya
Criminal Revision No.1842/2012
Brijendra Billaiya
VERSUS
Gurunarayan
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Names of counsel for the parties in Criminal Revision
No.1751/2012
Shri Anoop Saxena, counsel for the applicant.
Shri G.S.Ahuluwalia, counsel for the respondent.
Names of counsel for the parties in Criminal Revision
No.1842/2012
Shri G.S.Ahuluwalia, counsel for the applicant.
Shri Anoop Saxena, counsel for the respondent.
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O R D E R
(Passed on the 14th day of March, 2013) These two revisions are filed against the common judgment dated 31.8.2012 passed by the learned Additional Sessions Judge and Special Judge, Chhatarpur in criminal
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Criminal Revision No.1751 of 2012 Criminal Revision No.1842 of 2012 appeals No.47/2012 and 55/2012 and therefore, they are decided by the present common order.
2. The applicant Gurunarayan (hereinafter he will be referred to as 'Applicant/accused') applicant of criminal revision No.1751/2012 has challenged the impugned order because conviction directed by the trial Court was not set aside by the appellate Court. The applicant was convicted for the offence punishable under section 138 of Negotiable Instruments Act (hereinafter it will be referred to as 'The NI Act') vide judgment dated 9.1.2012 passed by the learned Judicial Magistrate First Class, Chhatarpur in criminal case No.831/2007 and sentenced with 1 year's rigorous imprisonment with fine of Rs.1,75,000/-. Out of which, a sum of Rs.1,70,000/- was provided to the respondent/ complainant, by way of a compensation. In criminal appeal No.47/20012 vide judgment dated 31.8.2012, the learned Additional Sessions Judge and Special Judge, Chhatarpur, maintained the conviction directed by the trial Court but, jail sentence was set aside and a fine of Rs.2,40,000/- was imposed upon the applicant/accused.
2. The applicant/complainant Brijendra Billaiya of criminal revision No.1842/2012 (hereinafter he will be referred to as 'Applicant/complainant') has challenged the impugned judgment dated 31.8.2012 passed by the learned
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Criminal Revision No.1751 of 2012 Criminal Revision No.1842 of 2012 Additional Sessions Judge and Special Judge, Chhatarpur in criminal appeal No.55/2012, whereby the sentence of the applicant/accused was reduced and therefore, he prays that the sentence of the applicant/ accused be enhanced.
3. The facts of the case, relating to the present revisions, in short, are that, the applicant/complainant had filed a criminal complaint before the JMFC, Chhatarpur that due to personal necessity, the applicant/accused took a loan of Rs.1,50,000/- from the applicant/complainant. Thereafter, he provided a cheque dated 11.9.2006, Ex.P/1 to the applicant/complainant for payment of that loan. Also, he executed a liability note, Ex.P/4. When the cheque was submitted for encashment then, on 23.11.2006, it was returned with a memo that cheque was dishonoured due to insufficient funds in the account of the applicant/accused. Thereafter, the applicant/complainant has sent a notice dated 4.12.2006 to the applicant/accused through his counsel and after receiving the notice, no payment was made within 15 days, therefore, a complaint was filed before the trial Court.
4. The applicant/accused abjured his guilt before the trial Court. He took multifarious defence in the case. His first defence was that the applicant/complainant had stolen the signed cheque from the cheque book of the
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Criminal Revision No.1751 of 2012 Criminal Revision No.1842 of 2012 applicant/accused and misused that cheque. Secondly, in the month of September, 2006, the applicant/accused left Chhatarpur and he was residing at Bhopal. Therefore, no notice of demand was received by him. In support of his contention, he got himself examined as a defence witness, whereas Hariom Mishra (D.W.2) was also examined to show that the applicant/complainant hardly had any sufficient fund to give as a loan to the applicant/accused.
5. The learned JMFC, Chhatarpur, after considering the evidence adduced by the parties, convicted and sentenced the applicant/accused as mentioned above, whereas, sentence was modified in the appeal.
6. I have heard the learned counsel for the parties at length.
7. The first defence of the applicant/accused was considered in detail by both the Courts below. It is not expected from anyone to keep a signed blank cheque in the cheque book. If he had lost the blank cheque from the cheque book then, it was expected from him that he should have informed that bank to stop the payment and he should have informed the police about the theft of that cheque. The defence witness Hariom Mishra (D.W.2) appears to be a partner of the applicant/accused in his business and therefore, by telling the fact to the witness Hariom Mishra,
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Criminal Revision No.1751 of 2012 Criminal Revision No.1842 of 2012 no reliance can be placed on their statements. Naturally if a blank cheque is stolen then, it was for the accused to take steps, so that it could not be misused. Also, he has given a document, Ex.P/4, in favour of the complainant. However, the accused has denied his signatures appended upon all the documents but, if his signature is compared from the cheque, Ex.P/1 then, certainly the document, Ex.P/4 bears his signature. If the cheque was stolen then, why such a document was executed by the accused. Under such circumstances, it appears that the story of theft of a blank cheque is incorrect.
8. The learned counsel for the applicant/accused has submitted that it was for the complainant to prove that he had sufficient funds to provide loan to the accused but, according to the defence witness Hariom Mishra (D.W.2), he accepted that the applicant/accused was a businessman, having his own house in Shukalana Mohalla. He had a vehicle with him. He denied that the complainant was having a good business but, he has accepted that he had no knowledge about the business of the complainant at present. Under such circumstances, it appears that being a pocket witness, Hariom Mishra was not telling a truth. However, he accepted about the status of the complainant. The document, Ex.P/4 was a key document in the present case.
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Criminal Revision No.1751 of 2012 Criminal Revision No.1842 of 2012 If the accused did not obtain a loan from the complainant then, there was no need to execute such a document. Therefore, it is proved that the accused has executed a cheque of Rs.1,50,000/- in favour of the applicant/complainant and the same was dishonoured. The defence of the applicant/accused that the cheque was stolen appears to be incorrect.
9. The second main point of defence stated by the learned counsel for the applicant/accused is that no notice was served to him and therefore, the complaint was not maintainable. The learned counsel for the accused has placed his reliance upon the various judgments passed by Hon'ble the Apex Court in cases of "M/s Sarav Investment and Financial Consultants Pvt. Ltd and another Vs. Llyods Register of Shipping Indian Office Staff Provident Fund and Another" and [2002 (I) L.S.C.T. 125], "M.D.Thomas Vs. P.S.Jaleel and another", [(2010) (II) L.S.C.T. NOC 9 (SC)]. Similarly reliance is placed upon the various orders passed by the single Benches of this Court in cases of "Mahendralal Shivhare Vs. State of M.P. and another", [(2008) (IV) MANISA 142 (M.P.)] and "Suresh Prajapat Vs. Manoj Bansal and another", [(2003) (1) M.P.L.J. 361]. However, due to factual difference, the aforesaid judgments and orders passed by Hon'ble the Apex
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Criminal Revision No.1751 of 2012 Criminal Revision No.1842 of 2012 Court and the single Benches of this Court are not applicable in the present case. In the present case, applicant/accused has accepted that the notice was given to the last address and therefore, it was to be proved by him that he left the last address before the notice was received by him. The applicant/accused Gurunarayan (D.W.1) has proved the document, Ex.NA/1 to show that he received a job in Vindhyachal Construction company, Bhopal and he was directed to join in that office on 1.10.2006. The accused could not prove that whether such an institution exists at Bhopal or he joined according to the appointment order given by that construction company. Neither any employee of that construction company was examined to show that such a letter was given to the applicant/accused and he joined in that company on 1.10.2006 and started residing at Bhopal. The applicant/ accused could not prove that he left his last address and therefore, if a notice was sent to his last address then, it would be a valid notice in the eye of law. The second contention taken by the applicant/accused that there are two acknowledgment slips produced but, it appears that Article A/1 is the only acknowledgement slip produced in the case. It is no where clear that who produced this acknowledgment. It is possible that on Article A/1, the signature shown between 'A' to 'A' was not of the accused.
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Criminal Revision No.1751 of 2012 Criminal Revision No.1842 of 2012 The acknowledgment does not bear any postal stamp and therefore, it is possible that it was not an acknowledgment of the notice, Ex.P/5, given by the Advocate of the complainant.
10. However, the complainant has specifically stated that notice was given by his counsel and therefore, it was for his counsel to inform if any acknowledgment was received or not. However, a postal receipt, Ex.P/6 is proved by the complainant that the notice was sent to the accused on 4.12.2006. Ex.P/6 is a printed computer receipt and therefore, it was not necessary that any postal stamp should be affixed on that receipt. Under such circumstances, if both the Courts below have relied upon the provisions of section 27 of the General Clauses Act then, their reliance appears to be correct. If a notice is sent through a post- office by registered post then, it shall be presumed that it is received to the opposite party. Under such circumstances, where the applicant/accused could not prove that he left that address permanently, it cannot be said that he did not receive the notice of demand.
11. The notice was sent by a receipt dated 4.12.2006 and therefore, the applicant/accused was expected to make payment upto 19.12.2006 and thereafter, the complaint could be filed within a month. The complaint was filed on 8.1.2007 and therefore, it was within the limitation. The
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Criminal Revision No.1751 of 2012 Criminal Revision No.1842 of 2012 learned counsel for the applicant/accused has placed his reliance upon the judgment passed by Hon'ble the Apex Court in case of "Anil Kumar Goel Vs. Kishan Chand Kaura", [(2008) (III) L.S.C.T. 29], which relates to the provisions of condonation of delay in filing the complaint. In the present case, it is apparent that the complaint was filed within time and therefore, such judgment passed by Hon'ble the Apex Court is not at all applicable in the present case. The complainant has proved beyond doubt that there was a loan transaction between the parties and the applicant/ accused gave a cheque of Rs.1,50,000/- which was dishonoured. A notice of payment was given and thereafter, a criminal complaint was lodged within time. Under such circumstances, the trial Court as well as the appellate Court has rightly convicted the applicant/accused for the offence punishable under section 138 of the NI Act. There is no basis by which any interference can be made in the concurrent opinion given by both the Courts below relating to the conviction, dependant upon the facts.
12. So far as the sentence is concerned, a newspaper cutting is shown to this Court that the applicant/accused had also issued a cheque in similar manner to one Anurag Khare and thereafter, when a notice was sent by one Advocate Vinay Vaidya then, the applicant/accused sent a
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Criminal Revision No.1751 of 2012 Criminal Revision No.1842 of 2012 SMS to the Advocate by which he was threatened and therefore, the applicant/accused was arrested. However, at present, such a document, which was not proved before the trial Court cannot be considered for assessment of the sentence. The trial Court has imposed a jail sentence to the applicant/accused with a fine of Rs.1,50,000/- and the appellate Court increased the fine and compensation amount by reduction of the jail sentence. Under such circumstances, looking to the overt-act and the amount of compensation granted by the appellate Court, it is not necessary that the applicant/accused be sent to the jail. Similarly, the appellate Court has reduced the jail sentence by enhancement of fine and therefore, there is no need to reduce the fine/compensation imposed by the appellate Court. The reasons mentioned by the appellate Court are convincing and therefore, there is no need to enhance the jail sentence or to reduce the fine/compensation amount. Under such circumstances, there is no need to make any change in the sentence directed by the appellate Court.
13. On the basis of the aforesaid discussion, the revision petition filed by the applicant/complainant cannot be accepted. Similarly, the revision petition filed by the applicant/accused also cannot be accepted. Hence, both the
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Criminal Revision No.1751 of 2012 Criminal Revision No.1842 of 2012 revision petitions are hereby dismissed, by maintaining the judgment passed by the appellate Court.
14. A copy of the order be sent to the trial Court as well as to the appellate Court along with their records for information and compliance.
(N.K.GUPTA) JUDGE 14/3/2013 Pushpendra