Madhya Pradesh High Court
Anand Chaturvedi vs I.S. Mourya on 9 February, 2016
MCRC-4752-2013
(ANAND CHATURVEDI Vs I.S. MOURYA)
09-02-2016
HIGH COURT OF MADHYA PRADESH : AT
JABALPUR
M.Cr.C. No.4752/2013
Anand Chaturvedi
vs.
I.S. Mourya
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Present:- Hon'ble Shri Justice C.V. Sirpurkar
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Shri A P. Singh, counsel for the applicant.
Shri S.K. Mishra, counsel for the respondent.
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ORDER
(8-02-2016)
1. This miscellaneous criminal case under Section 378(3) of the Cr.P.C. for special leave to appeal against acquittal is directed against the judgment dated 31.07.2012 passed by the Court of JMFC (Fast Track Court), Bhopal in criminal case No.10303/2010, whereby respondent-accused I.S. Mourya was acquitted of the charge under Section 138 of the Negotiable Instrument Act, 1881.
2. The facts necessary for disposal of this miscellaneous criminal case may briefly be stated thus:
applicant/complainant Anand Chaturvedi filed a private complaint in the Court of JMFC (Fast Track Court), Bhopal alleging that he had advance a loan in the sum of Rs.19 lacs to the respondent/accused on 31.03.2010. The amount was withdrawn by him from his account in Punjab National Bank. The loan was to be repaid in July, 2010. The respondent- accused gave him a cheque in the sum of Rs.19 lacs drawn on Oriental Bank of Commerce, Arera Colony Branch, Bhopal, payable on 30.07.2010. He presented the cheque in the bank for encashment but it was dis-honoured for want of funds. Even after giving statutory notice, no repayment was made by the respondent/accused. Thereafter, he filed a private complaint under Section 138 of the Negotiable Instrument Act, 1881, within limitation.
3. In his examination under Section 315 of the Cr.P.C., respondent-accused admitted that he had given cheque No.463774 in the sum of Rs.19 lacs drawn on B.H.E.L. Branch of Canara Bank, Bhopal, dated 30.07.2010; however, his defence was that the cheque was given not for discharge of any debt or liability but by way of security in respect of transaction of sale of land. The applicant/complainant had agreed that the cheque would not be deposited in the bank for encashment and had given such assurance in writing; however, applicant/complainant deceitfully deposited the cheque in the bank for encashment.
4. After trial, learned Magistrate held that the complainant has not been able to prove that he had advanced loan in the sum of Rs.19 lacs to the accused and the cheque in question was given to the applicant/complainant in discharge of aforesaid debt. It was further held that on the basis of the admission made by the complainant in his cross-examination and on the basis of statements of defence witnesses Mohsin Hasan (DW/1), Devendra Kumar (DW/2) and the document (Ex.D/2), the accused was able to rebut the presumption arising in favour of the complainant under Section 118 and 139 of the Negotiable Instrument Act and was able to probablize his defence that the cheque in question was in fact given by way of security in respect of transaction of sale of immovable property between the parties.
5. Aforesaid findings recorded by the learned Magistrate have been assailed before this Court on behalf of the applicant/complainant mainly on the ground that the document (Ex.D/2) was in fact a draft, which was cancelled and in its place document (Ex.P/9) was executed. It has also been argued that the respondent-accused has failed to examine himself in support of his defence.
6. Learned counsel for the respondent-accused, on the other hand, has supported the impugned judgment.
7. In the case of Kumar Exports Vs. Sharma Carpets, (2009) 3 MPLJ 114, the Supreme Court has observed that:
âPresumptions under sections 118 and 139 of the act are rebuttable and will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. The presumption is displaced where the complainant himself made declaration to Sales Tax Department that no sale had taken place and having accepted the testimony of the official, it is evident that no transaction of sale had taken place. Thus the offence under section 138 not held to be proved against accused.â The Court went on to observe further that â¦.âthe accused in a trial under section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under sections 118 and 139 of the Act will not again come to the complainantâs rescue.â
8. Thus, it is clear that the presumptions under Section 118 and 139 of the Negotiable Instrument Act are rebuttable and to rebut the presumptions, the accused is not expected to prove his defence that the cheque was in fact issued by way of security and was not intended to be presented to the bank for encashment, beyond reasonable doubt. It was sufficient for the accused to prove his defence on the basis of preponderance of probabilities. He could probabilize his defence on the basis of facts and circumstances brought on record in cross-examination of the complainant or in examination of defence witnesses. It was not necessary for him to examine himself under Section 315 of the Cr.P.C.; therefore, if he failed to examine himself, as aforesaid, such failure could not have been made subject matter of adverse comment by the Court; thus, the arguments advanced on behalf of the learned counsel for the applicant/complainant that since, the accused has failed to examine himself, there was no rebuttal of presumption, cannot be countenanced.
9. It may also be seen that though the complainant has produced his pass book of Punjab National Bank (Ex.P/8) wherefrom it appears that he had withdrawn the amount of Rs.68 lacs on 31.03.2010 but there is no document on record to suggest that Rs.19 lacs from aforesaid amount was advanced to the respondent/accused by way of loan because no document has been executed by the accused acknowledging receipt of Rs.19 lacs. Learned Magistrate has rightly held that it is unlikely that a person would part with such a large sum without insisting upon even a simple receipt from him. Thus, the complainant has utterly failed to prove that the transaction between the complainant and the accused was a simple loan transaction as averred in the private complaint and the affidavit of the complaint, wherein a loan in the sum of Rs.19 lacs was advanced but no document was executed by the accused in return.
10. Moreover, respondent-accused had filed document (Ex.D/2) before the trial Court. It may be noted at the outset that no objection with regard to admissibility of aforesaid document was raised either before the trial Court or before this Court. Ex.D/2 is a certified true copy issued by copying section of the office of the District and Sessions Judge, Bhopal, of sale deed dated 15.01.2010 executed by the complainant and his brother on behalf of Blue Bells Education Society in favour of Heroes Education and Welfare Society, Bhopal, represented by its President I.S. Mourya, the accused. The consideration of sale was Rs.2,50,000,00/-. Overleaf the third page of the sale deed, following text is recorded in the handwriting of Devendra Kumar (DW/2). vkt fnukad 31-03-2010 dks nksuksa i{kdkjksa Jh vkuan prqosZnh ,oa Jh vkbZ-,l- ekS;Z ds e/; fuEukuqlkj lgefr ls r; gqvk D;ksafd vkt nwljk foÃ; i= laikfnr dj leLr Hkqxrku dj fn;k x;k gSA vr% Jh vkuan prqosZnh dks fn;s x;s pSDl ftudk fooj.k fuEukuqlkj gSA pSd Ã- fnukad jkf'k cSad dk uke Ã-
1- 851251 29-01-10 1]1600]000@& dSujk cSad 2- 851252 29-01-10 37]30]000@& ^^ ^^ 3- 851254 29-01-10 18]70]000@& ^^ ^^ 4- 851256 15-02-10 50]00]000@& ^^ ^^ 5- 463774 30-07-10 19]00]000@& ^^ ^^ 6- 463765 30-08-10 20]00]000@& ^^ ^^ 7- 865006 15-02-10 50]00]000@& ^^ ^^
mijksDr leLr pSDl Jh vkuan prqosZnh }kjk nwljs i{kdkj Jh vkbZ- ,l- ekS;Z dks rRdky okil dj fn;s tk;saxs vFkkZr mijksDr pSDl Hkqxrku gsrq cSad esa izLrqr ugha fd;s tk;saxsA vkt fnukad 31-03-2010 dks nks xokgksa ds le{k ;g lgefr i= lEikfnr fd;k x;k gSA
11. It may be noted in this regard that the particulars entered at serial No. 5 is description of the cheque in question. As is clear from aforesaid text, complainant Anand Chaturvedi had undertaken on 13.03.2010 to immediately return 7 cheques mentioned in the text, including the cheque in question in this case, to accused I.S. Mourya and had specifically undertaken not to present aforesaid cheques to the bank for encashment.
12. In his cross-examination complainant Anand Chaturvedi has categorically admitted that the aforesaid text contained in document (Ex.D/2) bears his signature as Chairman of the Blue Bells Education Society. He has further admitted that every page of (Ex.D/2) bears his signature. He has also admitted that aforesaid text mentioned the fact that he would return the cheques. He has also admitted that the text bears the signature of witnesses Devendra Kumar and Mohsin Hasan, the defence witnesses, as well.
13. The defence version has been supported by Mohsin Hasan (DW/1) and Devendra Kumar (DW/2). Both of them have stated that they had gone to the office of Registrar on 31.03.2010 at the instance of the accused. Devendra Kumar has stated that aforesaid text is in his handwriting, which he had written on the dictation of the complainant. Mohsin Hasan (DW/1) has stated that the complainant had said that he had forgotten to bring cheques with him; however, he has details of the cheque with him, which he had dictated to Devendra Kumar and had assured the accused that the cheques would be returned. Though, Mohsin Hasan (DW/1) has admitted in his cross-examination that he has been working as Sports Officer in the school run by the accused and Devendra Kumar (DW/2) has admitted that he is a photographer and attends the functions of school belonging to the accused as a photographer, this admission on the part of the defence witnesses is not sufficient to disbelieve their deposition, particularly in the light of categorical admission made by the complainant. In aforesaid circumstances, explanation of the complainant that (Ex.D/2) was only a draft and real sale deed was (Ex.P/9) does not hold water.
14. On the basis of foregoing discussion, this Court is of the view that this is not a case where findings recorded by the learned Magistrate appear to be perverse. It cannot be said that the conclusions arrived at by the learned Magistrate are contrary to evidence on record nor it can be said that the entire approach of the learned Magistrate with respect to dealing with the evidence was patently illegal, leading to miscarriage of justice. The findings are eminently reasonable and are based on proper understanding of law and the facts involved in the case. Thus, there is no scope even to take another view of the matter.
15. In aforesaid circumstances, this application for special leave to appeal against acquittal is utterly devoid of merits and deserves to be rejected.
16. Consequently, this application under Section 378 (3) of the Cr.P.C. for special leave to appeal against judgment of acquittal filed on behalf of the applicant/complainant is dismissed.
Certified copy as per rules.
(C V SIRPURKAR) JUDGE