Madhya Pradesh High Court
Kailash Singh Meena vs Arun Nagle on 29 November, 2023
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 29 th OF NOVEMBER, 2023
CRIMINAL REVISION No. 3823 of 2023
BETWEEN:-
KAILASH SINGH MEENA S/O LATE SHRI MULLA @
MULCHANDRA MEENA, AGED ABOUT 54 YEARS, R/O
OPPOSITE BHOPAL MEMORIAL HOSPITAL, RAJVANSH
COLONY, OPPOSITE D.P. BHOPAL (MADHYA PRADESH)
.....APPLICANT
(BY SHRI (DR.) ANUVAD SHRIVASTAVA - ADVOCATE)
AND
ARUN NAGLE, S/O KISHANLAL, R/O 235, DESWALI
MOHALLA, PEEPAL CHOURAHA, BHOPAL (MADHYA
PRADESH)
.....RESPONDENT
(NONE)
Heard on : 08.11.2023
Pronounced on: 29.11.2023
This revision having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
ORDER
This criminal revision has been preferred against the judgment passed on 28.7.2023 in Criminal Appeal No.141/2021 by XI Additional Sessions Judge, Bhopal, dismissing the appeal filed by applicant against the judgment of conviction and sentence delivered in RCT No.6834/2018 on 4.9.2021 by JMFC, Bhopal. Under these judgments, the applicant stands convicted for the offence of Section 138 of Negotiable Instruments Act and is sentenced to 2 rigorous imprisonment of one year, compensation amount of Rs.2,62,300/- and cost of Rs.11,000/- with a direction to suffer three months additional rigorous imprisonment for non-payment of compensation and cost amount.
2. The brief facts of the case are that the respondent/complainant gave a loan of Rs.2,00,000/- to the applicant/accused for the reason that there were cordial relations between the two and the applicant needed money for his personal requirement; to repay the loan amount, applicant gave a cheque of Rs.2,00,000/- dated 19.3.2018, bearing no.761115, to the respondent but when the cheque was submitted to the bank, it was dishonoured with a remark of "insufficient funds"; the respondent sent a notice of dishonour of cheque to the applicant but notice was not replied, therefore a complaint was filed under Section 138 of the Negotiable Instruments Act in which particulars of charge were prepared and the trial was held. After the conclusion of trial, applicant was convicted and sentenced by the trial court and his appeal against conviction and sentence was also dismissed by the impugned judgment.
3. The grounds raised in this criminal revision are that the courts below have committed grave error of law and facts by convicting the applicant and imposing sentence of imprisonment, compensation and litigation costs upon him. It is contended that the complaint was vague and misconceived; it had incohec and incorrect facts; the alleged cheques were not issued in discharge of any legal liability and the courts below failed to appreciate the fact that presumption was not available in the facts of the case. The actual liability of the applicant and the capacity of respondent to give money on credit were not examined; even the date of giving the money on credit was not disclosed; complainant failed to give the account number in which the cheque was 3 deposited; the fact of service of demand notice was not proved; the cheque was not of the category of "multicity" and could not have been produced for clearance; the fair trial was not ensured because adducing evidence in support of defence is a valuable right but it was denied to the applicant; the cheque in question was furnished by way of security and the respondent had no right to encash it; further, the respondent was not the holder in due course. It is, therefore, prayed that the judgments of courts below be set aside and the applicant be acquitted in the case.
4. This revision petition has not been contested by the respondent/ complainant, though notice was validly served upon him.
5. Arguments of the learned counsel for applicant are heard and the records of both the courts below are perused.
6. This criminal revision is argued on the facts that the applicant had no legal liability to pay any amount to the respondent-complainant and, therefore, it could not be held that the cheque under question was issued in discharge of any legal liability, still the applicant was held guilty under Section 138 of the Negotiable Instruments Act, which is in complete violation of legal provisions. To prove the legal obligation of applicant regarding payment of money under the issued cheque, the respondent-complainant has given evidence on oath in support of the facts mentioned in his complaint that he made payment of Rs.2,00,000/- on credit to the applicant and to repay this amount, applicant issued the questioned cheque, marked as Ex.P-1.
7. It is an admitted fact that there is no document showing the payment made to applicant by respondent-complainant but to address this point, respondent-complainant has stated on oath that he had acquaintance with the applicant since his childhood, who used to live in the same locality where the 4 respondent-complainant was residing. The statements of respondent- complainant also disclose that he even knows the details of education of applicant. Had there been no acquaintance, these personal details would not have been in the knowledge of respondent-complainant and it may further be inferred that had there been no such long acquaintance, the respondent- complainant would have taken caution to obtain receipt regarding the money given on loan. Looking to the long relationship between the parties, no adverse inference can be drawn against the respondent-complainant for not producing the documents about giving the money on credit to the applicant.
8 . This fact has not been challenged in the case that the questioned cheque, marked as Ex.P-1, was dishonoured for the reason of insufficient funds in the bank account of the drawer. The memo in this regard issued by the bank is marked as Ex.P-2. The applicant has not denied signature on this questioned cheque and on the basis of decision of Apex Court rendered in the case of Vasant Kumar v. Vijay Kumari (Criminal Appeal No.728/2015) the learned courts below have rightly drawn the presumption in favour of respondent-complainant that the questioned cheque, Ex.P-1, was issued by the applicant against a debt/legal obligation, therefore the legal presumption drawn in favour of respondent-complainant cannot be successfully challenged in this criminal revision.
9. Now the question arises whether the presumption raised in favour of respondent-complainant was duly rebutted by the applicant. The record of trial court shows that applicant had examined one defence witness, namely Shailendra Kathal (D.W.1), who was Senior Manager working in Hamidia Road Bhopal Branch of Bank of India. He has deposed before the trial court that the 5 cheque in question i.e. Ex.P-1 was of the category of NCTS, hence it was not supposed to be sent for clearing. He ha admitted in his cross-examination that the bank accounts of applicant as well as respondent-complainant were being maintained in his branch, therefore also the cheque of Ex.P-1 was not required to be sent for clearance.
1 0 . Exs. D-2 and D-3 are the documents produced in evidence by witness Shailendra Kathal (D.W.1) relating to issuance of cheque book and the remark of "unused" mentioned on the questioned cheque. Ex.D-3 shows that the cheque book with series no.761101 having 25 leaves was issued to applicant on 21.11.2007, out of 25 cheques, only six were drawn and passed while 19 remained unused. Ex.D-2 shows that questioned cheque bearing no.761115 was one such cheque which remained unused. On the basis of this evidence, the applicant is claiming that respondent-complainant misused this cheque for filing the complaint under Section 138 of the Negotiable Instruments Act but this argument is wildly far-fetched. Marking a cheque as "unused" does not prove its misuse and it merely suggests that a leaf of cheque from the cheque book issued earlier remained unused for a long time. It is evident from Ex.D-3 itself that the cheque book relating to cheque leaf of Ex.P-1 was issued on 21.11.2007 but the drawn cheque bears the date of 19.3.2018. It is, therefore, clear that the applicant who was the holder of cheque of Ex.P-1 did not use it for long 11 years and when the drawn cheque was presented in the bank for payment, the bank officer put the remark of "unused" on this cheque. The entire evidence of defence witness Shailendra Kathal (D.W.1) does not reflect that an invalid cheque was presented by respondent-complainant for payment.
11 . On the basis of discussion in the foregoing para, it cannot be successfully argued that the respondent-complainant used a cheque, which was 6 invalid or not prevalent at the time of its presentation. In fact, it is for the applicant to explain why he used a cheque leaf from a cheque book that was issued almost 11 years ago. There is no explanation on the part of applicant in that regard. Merely by claiming that the cheque was issued by way of security and the respondent-complainant had no right to get it encashed, His defence cannot be assumed to be proved. The applicant had to furnish evidence in that regard but he has utterly failed in it or giving explanation for this.
12. The other ground taken in this revision is that the applicant was not given fair chance to put up his defence but record of the trial court shows that the case was posted on 30.3.2019 for defence evidence for the very first time and after a lapse of almost nine months, the applicant/accused could examine only one defence witness. He again filed an application under Section 311 of Cr.P.C. for recalling that witness but the court disallowed that application after passing a long order. The applicant did not offer to examine any other defence witness nor proposed to examine himself as a witness, therefore no conclusion can be drawn here that his defence was impaired by the unfair trial.
13. It has also been argued in this revision case that the respondent- complainant failed to prove his economic condition, therefore it could not have been assumed that the respondent-complainant was financial sound to give a loan of Rs.2,00,000/- to the applicant. The respondent-complainant has, in his statements given on oath, claimed that the amount of Rs.2,00,000/- was given on loan between the years 2011 to 2015 and he has also disclosed in para 14 of his statement that he is a practicing lawyer. No suggestion was given to him that he was not financial sound to give an amount of Rs.2,00,000/- on loan. Further, cross-examination of respondent-complainant suggests that there was a 7 property transaction between the two parties and when a dispute arose regarding that transaction, a compromise was arrived at between him and the applicant under which the respondent-complainant made payment of Rs.3,00,000/- to the applicant. Had the financial position of respondent- complainant been not very strong, it would not have been possible for him to make payment of Rs.3,00,000/- in the year 2017. Therefore contention of applicant regarding the financial position of respondent-complainant also fails on merits.
14. On the basis of forgoing discussions and entire facts of the case proved through evidence and legal presumption, this criminal revision fails on the finding of conviction and the judgments of the courts below regarding conviction of applicant under Section 138 of the Negotiable Instruments Act is maintained.
15. The applicant has also challenged the sentence passed against him by the courts below, but having considered the fact that applicant failed to repay the amount taken on credit prior to 2016, till date, the sentence passed under Section 138 of the Negotiable Instruments Act does not seem to be unreasonable or disproportionate. Accordingly, this court is not inclined to interfere in the sentence as well.
16. Consequently, this revision fails on all counts and is accordingly dismissed.
17. Let the copy of this order be sent to the courts below along with their records for information and necessary compliance.
(ANURADHA SHUKLA) JUDGE 8 ps Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.11.30 14:25:51 +05'30' Adobe Reader version: 11.0.8