Jharkhand High Court
Lalmani Choudhary vs The State Of Jharkhand on 18 May, 2023
Author: Ambuj Nath
Bench: Ambuj Nath
Cr. Revision No.20 of 2016
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 20 of 2016
Lalmani Choudhary ... ... Petitioner
- Versus -
1. The State of Jharkhand
2. Chhotelal Choudhary ... ... Opposite Parties
------
CORAM: - HON'BLE MR. JUSTICE AMBUJ NATH
-----
For the Petitioner : M/s. P. K. Nayak, Advocate
For the State : A.P.P
---
C.A.V. on 15.03.2023 Pronounced on 18.05.2023
1. Heard the Parties.
2. The petitioner has filed this application against the judgment dated 09.10.2015 passed by Sri Rajesh Sharan Singh, learned Additional Sessions Judge-XII, Hazaribag in Criminal Appeal No. 159/2012 whereby and wherein the learned Additional Sessions, Hazaribag dismissed the appeal of the petitioner and affirmed the judgment of conviction and order of sentence dated 10.10.2012, passed by Sri Sanjay Singh Yadav, learned J.M.F.C., Hazaribag in connection with Complaint Case No. 26 of 2011, holding the petitioner guilty of offence under section 138 of the N. I. Act and thereby sentencing him to undergo simple imprisonment for one year alongwith a fine of Rs 10,000/- and in default of payment of fine he was further directed to undergo simple imprisonment for two months.
3. The opposite party no. 2 Chhotelal Choudhary had filed complaint case under section 138 of the N.I. Act alleging therein that he had given a friendly loan of Rs. 1 lakh to the petitioner in the year 2009 for the purchase of land, against the repayment of the loan amount, the petitioner had issued a cheque of Rs.1 lakh in the name of the opposite party no. 2 on 10.11.2010, drawn on Union Bank of India, Ananda College Branch, Hazaribag. When the cheque was placed for encashment, it was returned by a cheque return memo dated 23.11.2010 stating that the cheque could not be cashed for want of Cr. Revision No.20 of 2016 2 sufficient funds in the account of the petitioner. It has been stated that the opposite party number 2 met the petitioner and requested him to pay the amount but the petitioner did not pay the amount. Thereafter, lawyers notice was given to the petitioner on 20.12.2010. Petitioner again promised to return the amount but did not return it. Accordingly, the present complaint case was filed.
4. Both the learned trial court and the learned appellate court have come to a concurrent finding regarding the guilt of the petitioner.
5. The opposite party number 2 has examined himself as C.W.2. He has reiterated the allegation made in the complaint petition. He has stated that he had given a friendly loan of Rs. 1 lakh to the petitioner for purchase of land. The petitioner issued a cheque of Rs. 1 lakh in his name. He has proved the cheque in question which is Ext.- 1. Cheque was place for encashment and the same was returned by the bank on 23.11.2010 with endorsement that it could not been encashed for want of sufficient funds. The cheque return memo has been adduced in evidence as Ext.- 2. Thereafter, lawyers notice was given to the petitioner, he has proved the lawyers notice which is Ext.- 3. He has proved the postal receipt which is Ext.- 4. He has identified the petitioner in the dock. In his cross-examination he has stated that there was no agreement between him and the petitioner on 09.01.2011. He has further stated that on 09.01.2011 and again on 10.01.2011 he did not receive any money from the petitioner.
Bihari Prasad C.W.1 has corroborated the contention of the opposite party number 2. Chotelal Choudhary has stated that he had given Rs. 1 lakh to the petitioner. The petitioner issued a cheque of Rs. 1 lakh in the name of Chotelal Choudhary but the cheque could not be in encashed. In his cross-examination he has stated that both the parties are relatives, he has stated that Rs. 1 lakh was given by the opposite party number 2 to the petitioner in his presence.
6. The petitioner has examined Sanjay Kumar Verma as D.W.1. This witness has stated that the petitioner had returned the money to the opposite party no. 2 for which agreement was drawn and he had written the agreement. He has further stated that the petitioner had returned the bounced amount. In his cross-examination he has stated Cr. Revision No.20 of 2016 3 that the petitioner had not taken any receipt from the opposite party number 2 to show that the petitioner had returned the bounced amount.
7. O.P. No. 2 has adduced documentary evidence in support of his case. From the perusal of the documentary evidence adduced by the parties, it transpires that the cheque in question Ext.- 1 of Rs. 1 lakh was issued in the name of Lalmani Choudhary on 10.11.2010. The cheque was place for encashment and the same was returned by the Union Bank of India, Hazaribag with the endorsement that the cheque could not be cashed due to lack of sufficient funds in the account of the petitioner. Thus, it appears that the cheque was placed before the bank for encashment by the petitioner within the stipulated period as per the provision of section 138 of the N. I. Act. Lawyers notice was given on 15.12.2010 that too was within thirty days from the cheque return memo. The postal receipt Ext.- 4 is also on the record, confirming that lawyers notice was sent by the registered cover. The present complaint case was filed on 06.01.2011, after the complainant did not repay the cheque amount within fifteen days from the receipt of the local notice.
8. One agreement paper has been exhibited by the petitioner which is Ext.- A showing that on 09.01.2011, wife of the petitioner had returned Rs.40,000/- to the opposite party number 2 in presence of Tulsi Modi. From the perusal of this document, it appears that there is no signature of the recipient of money on this agreement paper. It further appears that signature of witness Tulsi Modi was made on 31.01.2011 and on 09.01.2011. It further appears that again there is endorsement of Tulsi Modi that Rs. 60,000/- was received. Tulsi Modi is the witness of this document. The opposite party number 2 Chhotelal Choudhary has neither signed this document nor he was confronted with this document to admit its authenticity during the recording of his evidence.
9. From the aforesaid facts and circumstances, it is evident that the complainant has been able to show that he had given Rs. 1 lakh to the petitioner as a friendly loan and against the repayment of this loan, the petitioner had issued a cheque of Rs. 1 lakh in the name of Cr. Revision No.20 of 2016 4 the opposite party number 2 which were placed for encashment in the bank within time was dishonored. Lawyers notice was given to the petitioner by the opposite party number 2 within time and when the petitioner did not repay the cheque amount, this case was filed on 06.01.2011 that is within a month after expiry of fifteen days which was the period given in the lawyers notice for the petitioner for paying the cheque amount.
10. In view of the aforesaid facts and circumstances of the case, I am of the opinion that both the learned trial court as well as the learned appellate court have come to a right finding regarding the guilt of the petitioner for committing offence under section 138 of the N. I. Act.
11. The judgment of conviction and order of sentence does not require any interference accordingly; this criminal revision application is dismissed.
12. Pending I.A., if any, also stands disposed of.
(Ambuj Nath, J.) Saurabh