Jharkhand High Court
Anwar Ali vs State Of Jharkhand & Ors on 13 November, 2017
Equivalent citations: AIRONLINE 2018 JHA 639
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, B. B. Mangalmurti
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P.No. 1705 of 2010
Anwar Ali ............Petitioner
Vrs.
1.The State of Jharkhand
2.Vijay Kumar Srivastava
3.Smt. Binda Devi ............. Opposite parties
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE B. B. MANGALMURTI
For the Petitioner : M/s Bibhash Sinha, Indrajit Sinha, Kumar Vimal
and Ajay Kumar Sah
For the State : Mr. P.K.Appu, A.P.P.
05/13.11.2017Heard learned counsel for the petitioner and the State.
2. Learned Trial Court of Judicial Magistrate 1 st Class, Jamshedpur convicted the accused, opposite party no.2 and 3 (hereinafter referred as private opposite parties) in Complaint Case being C/1-Case No. 55 of 2004/ T.R. No. 514 of 2005 by the judgment dated 13.6.2005 for the offences under Section 406 of the I.P.C and Section 138 of the Negotiable Instrument Act and sentenced them to undergo simple imprisonment for 1 year with a fine of Rs.2 lakhs and in default thereof, to undergo simple imprisonment for 3 months. Being aggrieved, the accused convict went in appeal before the Additional Sessions Judge, FTC- III, Jamshedpur in Criminal Appeal No. 94 of 2005 . The learned Appellate Court acquitted the accused / private opposite parties herein by the impugned judgment dated 5.10.2010 against which the complainant / petitioner herein seeks leave to appeal through the instant Cr.M.P.
3. There has been a delay of 3 days in filing the instant petition. We have however heard learned counsel for the petitioner and State on merits of the challenge to the impugned judgment as well.
4. The case of the parties as borne out from the pleadings of the record and on perusal of the judgments are referred as under:-
The complainant alleged issuance of cheque no. 789680 dated 25.10.2003 for Rs.25,000/-, cheque no.789679 dated 30.10.2003 for Rs.25,000/-
and cheque no. 789681 dated 5.11.2003 for Rs.50,000/- drawn on Punjab National Bank, Jamshedpur against A/C No CA110 on the part of the accused Vijay kumar Srivastava, opposite party no.2 against friendly loans of Rs.50,000/- and Rs.1 lakhs advanced to the accused / opposite party no.2 and opposite party no.3, his mother respectively on 02.08.2003 and 09.09.2003 as they were in need of money for their business. On presentation through IDBI Bank Ltd, Jamshedpur, the cheques were dishonoured on 28.11.2003 due to insufficient funds. Complainant issued legal notice demanding money of the dishonoured cheques within 15 days. Thereafter it was replied by the accused / -2- opposite party no.2 through his lawyer stating that he had received loan of only Rs.1 lakh and not Rs.1.50 Lakh and had promised to repay the loan of Rs.1 lakh within two months. Since the payments were not made within the statutory period, complaint case was filed in the Court of Chief Judicial Magistrate, Jamshedpur. After preliminary inquiry cognizance was taken under Section 138 of the N.I. Act and section 420 of the I.P.C against the accused / opposite party no.2 and cognizance of the offence under Section 420 of the I.P.C was taken against opposite party no.3. Learned Trial Court framed additional charge under Section 406/34 of the I.P.C against both the accused whereas charge under Section 138 of the N.I. Act was framed only against opposite party no.2, Vijay Kumar Srivastava. After the accused persons pleaded not guilty the trial commenced.
5. The complainant examined witness no.1, Satya Ranjan Sarkar, complainant himself as witness no.2 and S.A. Fajal as witness no.3. The documentary exhibits are money receipt as Ext.1, another money receipt as Ext.2, Ext.3 series are 3 cheques allegedly issued by the opposite party no.2 , Ext.4 is return memo from the bank, Ext. 5 is the legal notice sent by the complainant, Ext.6 is the postal receipt and Ext.7 is the acknowledgement receiving legal notice. On behalf of the accused persons, opposite party no.2 had examined himself as D.W.1. No documentary evidence was brought on record on behalf of the accused persons. After conclusion of the trial and conviction as aforesaid, the aggrieved opposite parties preferred appeal, wherein they have been acquitted by the learned Appellate Court.
6. Learned Appellate Court framed two issues to be answered:-
(i) whether offence under section 406 of the Indian Penal Code is made out in the light of the evidence and the material available on the record
(ii) whether appellant no. 1can be held liable for the offence under Section 138 of the N.I.Act in the light of the evidence and material available on the record.
Learned Appellate Court came to a definite conclusion that the complainant did not set up a case of entrustment of property to accused and dishonest misappropriation or conversion of the property by the accused to his use. It also found no reason for the learned Trial Court to frame charge under Section 406 of the I.P.C. The case of the complainant as made out in the complaint petition showed taking of loan of Rs.50,000/- and Rs.1lakh each by the accused and his mother against which the alleged cheques were issued. The learned Appellate Court came to the finding that if the case of the complainant was related to borrowing of money on the part of the accused, there was no -3- entrustment of the property for certain purposes for which the terms and conditions have been violated. The loan taken by the person in need of money is not an entrustment rather it is a kind of liability imposed upon the borrower of the money to repay it. Learned Appellate Court therefore came to a conclusion that offence under Section 406 of the I.P.C was not at all made out. The Appellants / private opposite parties herein were acquitted of the said charge. The Point no.2 was considered thereafter by the learned Appellate Court in relation to the requirement of satisfaction of the elementary conditions for proving the case under Section 138 of the N.I. Act. Learned Appellate Court found on the one hand that the complainant alleged taking of loan by the opposite party no.2 and 3 on 2.8.2003 and 9.9.2003 respectively for a sum of Rs.50,000/- and Rs.1 lakh but on the other hand the money receipt signed by the opposite party no.2 and his mother , Ext. 1 and Ext.2 did not contain any terms and conditions in relation to the factum of borrowing and liability to repay. Apart from the above, learned Appellate Court found serious inconsistencies in the case of the complainant as set out in the complaint with that of the legal notice dated 12.12.2003 addressed to the opposite party no.2. Vide para 1 of the notice it was mentioned that on 10.10.2003, opposite party no.2 had taken friendly loan from Anwar Ali S/o Anwar Haque. However, the complainant was referred as Anwar Ali S/o Aainul Haque in the complaint petition as well as in Ext. 2., money receipt. The date of loan also did not match with the averments made in the complaint petition where loan were shown to be taken 2.8.2003 and 9.9.2003. There was no mention of 10.10.2003 as date of friendly loan taken by opposite party no.2. Learned Appellate Court also found that one of the important witness of transaction namely Amal Kumar Ghosh in whose presence the transaction had taken place was not examined. These inconsistencies in the prosecution case created confusion as to the existence of any debt or liability. One another important fact, which is also borne out from the evidences on record is that while the 3 cheques comprised a sum of Rs. 1 lakh only but the claim of repayment was made through legal notice for a sum of Rs.1.5 lakh. The opposite party no.2 who examined himself also stated that the amount of loan was paid with interest thereupon. He also deposed that the complainant was a contractor of the house of opposite party no.2 and he managed to get one stamp paper signed by the mother of opposite party no.2, which was being misused. The 3 cheques were of Rs.1 lakh in total whereas the alleged loan was of Rs.1.5 lakhs. All these factors created serious doubt as to the case of the complainant. The learned Appellate Court therefore came to the definite conclusion that not -4- only was the case of the complainant inconsistent but the very basis for issuance of the cheques i.e. for discharge of debt in whole or in part or any other liability was in the first place not conclusively established. The case of rebuttal of the accused / private opposite parties would have come later on in such circumstances. In the aforesaid background learned Appellate Court acquitted the opposite party no.2 of the charge under Section 138 of the N.I.Act as well.
7. Learned counsel for the petitioner has not been able to question the findings of the learned Appellate Court on both counts. Learned counsel for the petitioner on being specifically put has not been able to show any entrustment of property in the sense required under Section 406 of the I.P.C which had been pleaded on the part of the complainant to fulfill its necessary ingredients. The inconsistencies in the prosecution case has not been successfully overcome by learned counsel for the complainant / petitioner herein to demolish the findings of the learned Appellate Court.
8. We have analyzed the judgment on the basis of the material findings of the learned Court below and do not find any merit in the case of the petitioner for grant of leave to appeal. In that view of the matter, we do not find any reason to condone the delay in preferring the petition though small as no case on merits have been made by the petitioner. Accordingly, the instant Cr.M.P. is dismissed. I.A. No. 6858 of 2017 for condoning the delay also stands rejected.
(Aparesh Kumar Singh, J.) (B.B.Mangalmurti, J.) A.Mohanty