Madhya Pradesh High Court
Smt. Shobha Chouhan vs Gopichand Khatri on 27 April, 2016
M.Cr.C. No.15952/2015
(1)
HIGH COUR T OF MA DHYA PRA DE SH : JAB A LPUR
(Single Bench : R ajend ra Mahajan J.)
M.Cr. C. No.1 5 95 2 /2 01 5
Smt. Shobha Chouhan, w d/ o L ate Po oran
Singh Chouhan, ag ed about 6 5 years, r/ o
C/ o Raje sh Jain, H. No. CL-3 3 , Subhash
Na gar, Maharajpur, Jabalpur ( M.P.)
A pp l i cant
VER SUS
Go pichan d Khatri, Occupation Busine ss,
r/ o HI G- B-1 4, Subhash Na gar Maharajpr,
Jabalpur ( M.P.)
R es p ond ent
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For ap plicant : Shri Sam poorn Tiwari, learned counsel
Resp ondent : Not noticed.
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O R D E R
( Pa sse d on the 2 7 t h d ay of April, 20 16 ) The appli cant has prefer red the appli cation under Se ction 3 78 (4 ) of the Cr.P.C. seeking leave to p res ent an ap peal against the impugn ed judg ment of acquittal dated 03 .0 8 .2 0 15 , pa sse d by the court of JMF C, Jabalpur ( Shri Anil Kumar Sahu) in Cri minal Co mplaint Case No.41 74 / 11 Smt. Shobha Chouhan V s. Gopi chand, ac quitting the res pond ent of the charg e under Section 1 38 of the Ne gotiable Instrum ents Act, 18 81 ( for short 'the Act' ).
2. The brief facts of the cas e for ju st and pro per ad judication of the ap plication are given below :-
( 2.1 ) The ap plicant subm itted a com plaint for p rose cution of the re sp ondent under Section 13 8 of the Act and 42 0 of the I PC in the trial court on the groun ds that she has be en on family terms with the res pondent since long. After the death of her husban d, he used M.Cr.C. No.15952/2015 (2) to do the purchase of her househol d ite ms. He has a big shop in Maharajpur area of Jabalpur. As such, he is a bu sines sman by occupation. At the relevant time of the offence, she had a large amount of money in cash and ade quate quantity of gold and silver orna ments. He asked for money for expan sion of his busines s from her. Thereupon, she gave him Rs.3 ,1 5,0 00 / - in ca sh up on his assuranc e that he w ould return the amount w ithin thre e to four months. Against the said amount, he gave her thre e chequ es bearin g No. 75 51 51 for R s.1 ,00 ,0 00 / -, No.7 55 15 2 for R s.1 ,0 0 ,0 0 0/ - and No.7 5 51 53 for Rs.1 ,1 5,0 00 / - resp ectively ( for short 'the cheque s' ) .
He drew the cheque s on the D ena B ank, Branch Anand Nagar, Jabalpur w ith which he maintains his bank account bearing No.1 09 01 00 0 46 95 . While giving the cheque s, he told her to enca sh the chequ es on or after 18 .0 1 .2 01 1 . She depo sited the chequ es on 2 0.01 .20 1 1 in her bank account w hich she maintains w ith the Punja b and Sindh Bank, Jabalpur. On 20 .0 1 .2 01 1 , she was inform ed by the bank that the draw er bank had dishon oure d the chequ es on account of insufficient funds in the res pond ent' s account. Thereafter, she aske d him to give her the amount. F rom his de meanor, sh e got the imp res sion that he is not willing to pay the amount. Thereupon, sh e gave him a deman d notice M.Cr.C. No.15952/2015 (3) in terms of Se ction 1 38 of the Act. How ever, he did not pay the amount. H ence this co mplaint. ( 2.2 ) Vide o rder dated 30 .04.20 11 , the trial c ourt ordered the re gistration of the com plaint under Section 1 38 of the Act.
( 2.3 ) On 30 .1 0 .20 13 , the trial court frame d the charg e against the res pond ent under Section 13 8 of the Act. He denie d the charg e. The reup on, the ca se was put on trial.
( 2.4 ) At the trial, the ap plicant e xamine d her self and marked nine do cument s including the three cheque s which are marked as E x.P- 1 to Ex.P- 3. In defence, the re spon dent had not exa mine d either himself nor any witnes s. H ow ever, in the cours e of cro ss- examination of the appli cant, he c onfront ed her w ith a docu ment w hich is marked as Ex.D -1 . ( 2.5 ) The re spon dent in his e xamination under Section 31 3 of the Cr.P.C. d enied all the circu mstan ces and the evid ence ap pearing again st him and he took the defence that he pu rchas ed the appli cant' s hous e by a re gistered sale- deed Ex.D - 1 in the name of his w ife Anita. At the time of pu rchas e of the house, it was agre ed betw een the m that the ap plicant w ith her family shall remain in the hous e w ithout paying any rent so long as they want and in case the res pond ent construct a new house dis mantling the M.Cr.C. No.15952/2015 (4) old one, then he w ould make available her a rented house of w hich he would pay the rent. When he started the constru ction, he shifted the appli cant to a rente d hous e and in order that he w ould pay the rent, he issue d signe d blank cheque s Ex. P -1 - to Ex.P -3 to the ap plicant for security. H e pai d the rent for tw o years. Thereafter, he sto ppe d paying the rent. As result, she g ot offende d and filed the com plaint by mi susing the che ques.
3. Upon the evaluation of eviden ce on re cord, the learned JMF C has held that the applicant has filed the co mplaint com plying w ith the man datory requirement s of Se ction 1 38 of the Act. How ever, sh e has failed to dis charge initial bu rden that the res pond ent had issue d the cheque s to her against the legally enforcea ble debt. On the c ontrary, the re spon dent has proved on a prepon derance of p roba bility by referring to the admis sions made by the ap plicant in her cross -exa mination and other evidence on reco rd that he issu ed the chequ es for the purp ose of the se curity. Upon the said finding, the learned JMF C acquitted the re spon dent of the charge under Se ction 1 38 of the Act, holding that the sam e w ould not com e w ithin the purview of Section 13 8 of the Act.
4. Upon perusal of the im pugne d ju dg ment, the learne d JMF C has given follow ing rea sons in su pport of his finding that the cheque s had been given by the re spon dent to the ap plicant for secur ity.
M.Cr.C. No.15952/2015(5) ( 4.1 ) The ap plicant admits in para 8 of her cross -
examination that she is a hou sew ife. Her husban d retire d from the po st of driver w hich he held in the Madhya Pradesh Food and Civil Supply Cor poration. Her husband suffered fro m paralysis sinc e the year 20 08 till his death. She has not pro duce d any evidence re garding the indep endent source of continuous inco me. She has also not p rodu ced any oral or d ocum entary evidenc e that she had Rs.3 ,1 5,0 00 / - in ca sh w ith her. Under the circu mstanc es, it is w ell nei gh im pos sible that she had su ch a bi g am ount in cash w ith her at the relevant time.
( 4.2 ) The ap plicant in paras 7 and 8 of her c ros s-
examination adm its that her husban d Po oran Singh sold their hous e to the re spon dent' s w ife Anita in the year 2 00 6 vid e sale -de ed Ex.D - 1. She further admit s that at the time of sale of the house, the res pond ent agre ed that they w ould resi de in the house w ithout giving him any rent as long as they wish. Thereafter, they stayed in the house for tw o years. After her husband' s death, the resp ondent dis mantled the house and shifted her to a rented house of the Housin g B oard. He pai d the rent of the house at the rate of R s.8 00 / - per m onth for tw o years. Thereafter, he stop pe d paying the rent on her behalf. She got offen ded of the resp ondent' s M.Cr.C. No.15952/2015 (6) dec eption. She further admit s that the resp ondent pro mise d to give her one roo m w ith kitchen and latrine bath roo m in the house to b e constructe d by him, but he backed out of the pro mise. The se admi ssion s ma de by the applicant amply proves the fact that the re spon dent had given the chequ es for security for com pliance of the term s and con ditions agre ed betw een the m w hen the resp ondent had purcha se d the ap plicant' s house.
( 4.3 ) The ap plicant admits in para 10 of her cro ss-
examination that her nam e in the cheque s is written in her ow n handw riting. She also admit s that she got all the contents of the cheque s fille d up by a bank officer in En glish and thereafter she sub mitted the cheque s for en cashm ent. She als o admit s that in each of the three chequ es, just b elow the si gnature of the re sp ondent it is mentione d in English "for security". The afore said admis sions and evidence prove that the re spon dent has given blank chequ es by way of security to the appli cant.
5. The learned couns el for the applicant sub mitted that the ap plicant is a marginal literate w oman. She do es not know En glish language at all. Taking the advantage of the afore said, the res pondent below his signatu re in each of the chequ es w rote for secur ity. The learne d JMF C is highly imp res sed by the afore said facts. Thus, the learned JMF C has given the said M.Cr.C. No.15952/2015 (7) finding by misa pp reciating and misreading the eviden ce on re cord. A s a result, the impu gned jud gment is ba d in law b eing ba sed on er roneou s finding s. Und er the ci rcum stance s, this court ought to interfere w ith the impu gned jud gment in exercise of its ap pellate juris diction to provide the appli cant com plete justic e by granting the leave to app eal.
6. I have anxiou sly consi dere d the sub missi ons ma de by the learne d coun sel for the appli cant and peruse d the impu gned ju dgm ent and material available on re cord.
7. It is w ell settled in law that if a ch eque is is sued for se curity, then offenc e und er Se ction 1 38 of the Act is not mad e out. In this conn ection refe renc e may be ma de to the d ecision s ren de red in Jitendra Sing Flora vs. Ravikant Talwar (2 00 1 (1 ) MPL J 22 9 M.P.), M.S. Narayan Menon @ Mani vs. State of Kerala and another ( 20 06 ( 4) MPL J 97 SC) and V ijay V s. Lax manchan d and others (2 01 3 (2 ) JL J ( 1) SC) .
8. It is also well settled in law that an accus ed can re but the p resu mption of Section 13 9 of the Act simply by a p rep onderan ce of probabil ity and it is not neces sary for him to re but the said p resu mption b eyond rea sonabl e doubt. He can rebut the p resu mption by referring the eviden ce co ming out in the eviden ce adduc ed by the co mplainant and it is not nece ssary for him to addu ce indepen dent evidence w ith rega rd the stand taken by him vis-a-vis to the issuan ce of the che que.
9. Kee ping in view the aforesaid propo sitions of law, I have peru se d the evid ence on re cord and found that the learned JMF C M.Cr.C. No.15952/2015 (8) is ju stified in arriving at the finding s that the chequ es are issue d by the res pond ent to the applicant by way of security for du e perfor mance of term s and con ditions s ettled betw een them at the time w hen the ap plicant' s hus band had s old their house to the re sp ondent's w ife Anita. I am of the view that in the given set of eviden ce addu ced by the appli cant no other view much les s rea sona ble and logical is de duci ble. Henc e, the im pugne d ju dgm ent of ac quittal is justifiable and sustainable in law and on facts. The refore, no interference by this court w ith the impu gned ju dgm ent is warranted in view of the law laid dow n by Hon' ble the Supreme Court in the matters of Bhagwati and others vs. State of U.P. (1 97 6 SCC ( Cr.) 38 8) , Chandra ppa & others vs. State of Karnataka ( 20 07 (4 ) SCC 4 15 ) and Ashok Rai vs. State of U.P. and others (2 01 4 AI R SCW 3 40 6) .
10. In the re sult, I dis miss the ap plication for grant of leave bein g m eritles s and w ithout sub stance.
11. Acc ordin gly, this application is finally dis pos ed of.
( Rajendra Mahajan) Judg e ac/-