Madhya Pradesh High Court
Jatin Malik vs The State Of Madhya Pradesh on 21 July, 2017
CRA-657-2017
(JATIN MALIK Vs THE STATE OF MADHYA PRADESH)
21-07-2017
Shri Rakesh Pandey, learned counsel for the appellant.
Shri Naveen Dubey, learned counsel for the respondent No.1.
Respondent No.2 choose to remain absent despite service. Heard finally at the motion stage.
The appeal has been preferred under Section 378(4) of Cr.P.C., being aggrieved by judgment dated 14/06/2010, passed by JMFC, Jabalpur in Complaint Case No.9226/2006, wherein the learned JMFC dismissed the complaint and acquitted the respondent.
The facts giving rise to the criminal complaint case is that the accused allegedly executed a cheque of ICICI Bank, Nagpur Branch on 10/01/2006, in favour of the complainant/appellant, when the same was placed for encashment at Union Bank of India Branch, Ranji on 16/01/2006, the same was dishonoured with note that "effect not cleared present again". When the same was deposited again on 19/01/2006, the same was returned on 31/01/2006. Notice was issued to the respondent/accused on 13/02/2006 through the counsel for the complainant which was delivered to respondent/accused on 16/02/2006. Even then, he did not reply the same. When the complainant made query before the Branch Manager ICICI Bank, Nagpur Branch, it was not replied. Later, it was clarified that, the account had "insufficient fund", therefore, the cheque could not be honoured.
After filing this complaint, the learned trial Court framed charges and adduced evidence.
Learned trial Court held that the complainant failed to establish the offence under Section 138 of Negotiable Instruments Act against the respondent/accused in context with Section 118 of Negotiable Instruments Act. Appellant aggrieved by this order has filed this appeal on the ground that the appellant had followed procedure and filed the complaint case. The learned trial Court misinterpreted the facts and circumstances of the case and arrived at a conclusion which do not stand a judicial scrutiny causing great error. The burden of proof was not entirely on the appellant. The learned trial Court failed to appreciate the evidence. 'Effect not cleared present again' means "funds insufficient in the account present again". But the trial Court misinterpreted the same. The appeal be, therefore, allowed setting aside the judgment impugned. The respondent be convicted as under
Section 390 of Cr.P.C. for offence under Section 138 of Negotiable Instruments Act.
Learned counsel for the respondent opposed the contentions. Perused the record.
The learned trial Court has held that the cheque was issued by respondent though it has found that it is not established that the cheque was advanced in discharge of a legally enforcible liability.
Learned trial Court failed to apply the provision of Section 139 of Negotiable Instruments Act and apply the presumption, wherein it has provided that every cheque in respect of which a complaint is filed under Section 138 of Negotiable Instruments Act is supported by legally and forcible debt shall arise unless proved to the contrary.
The respondent has claimed that he did not issued the cheque in favour of the appellant. He advanced the cheque to Vidharbh Motors, Nagpur for Rs.10,000/-. When he deposited this amount, the cheque was returned back to him. But somehow he loost the cheque. Father of the complainant used to visit the office of the accused. But non has been examined from the Vidharbh Motors , Nagpur. As regarding the endorsement, 'effects not cleared present again' mentioned in Ex.P/3, the clarification has been made by ICICI Bank by letter Ex.P/7, wherein it has been said that the cheque No.234112 could not be encashed because there was funds insufficient.
In this regard reference can be made to the case of Laxmi Dyechem Vs. State of Gujrat reported as 2012(13) SCC 375.
This Court is in respectful agreement that decision rendered in the case of Laxmi Dyechem Vs. State of Gujrat (supra) and find that the cheque was dishonoured for insufficient of funds as made cleared by the letter Ex.P/17.
As regarding the cheque was not issued for a legally and enforcible debt, the onus lies on the respondent/accused.
No action has been initiated by the respondent/accused with regard to the overwriting made in the cheque.
Allowing this appeal partly, setting aside the judgement dated 14/06/2010, the trial Court shall now proceed with the trial of the complaint filed by the complainant expeditiously. This Court made it clear that nothing said in this judgment shall be taken as an impression of a final opinion of the merit of the case which the trial Court shall free to examine on its own, except Ex.P/17.
Record of the trial Court along with copy of this order be sent to the trial Court immediately.
Parties are directed to make appearance before the trial Court on 04/09/2017.
(SUSHIL KUMAR PALO) JUDGE RS