Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 7, Cited by 0]

Madhya Pradesh High Court

Lalit Kumar Dosi vs Shivani on 13 January, 2020

Author: Prakash Shrivastava

Bench: Prakash Shrivastava

                                                                   1

       THE HIGH COURT OF MADHYA PRADESH
                      M.Cr.C. No.13716/2018
         (Lalit Kumar Dosi Vs. Shivani W/o Sanjay Mundra)
Indore, Dated: 13/01/2020
     Shri V.K. Jain, learned senior advocate with Shri Prince
Gome, learned counsel for the petitioner.
     Shri Anand Soni, learned counsel for the respondent.

Heard.

By this application under Section 378(4) of the Cr.P.C., the petitioner has sought leave to appeal against the judgement of acquittal dated 28/02/2018 passed by the Court of Judicial Magistrate First Class, Sanawad in the criminal case No.156/2015 whereby the respondent has been acquitted for offence under Section 138 of the Negotiable Instruments Act.

The petitioner had filed a complaint before the Court below with the plea that 3 cheques No.912454, 912455 and 912456 each of a sum of Rs.1,36,000/-, total amount of Rs.4,08,000/- of State Bank of India, Sanawad were issued by the respondent to the petitioner in discharge of the liability which were presented by the petitioner in the Bank and were dishonoured. Hence, the notice was given and thereafter the complaint was filed which has been dismissed.

Learned JMFC after examining the evidence on record has found that the cheque was issued by the respondent, it was signed by the respondent and it was dishonoured and the notice was also duly served upon the respondent and no payment was made by the respondent but the Court below had dismissed the complaint on the ground that the cheque was not issued by the respondent in discharge of the legal liability and the petitioner could not prove that he was having sufficient fund to advance the money.

2

Learned counsel appearing for the petitioner submits that the Court blow has already found that the undated cheques were issued by the respondent because of the earlier loan of Rs.3,00,000/-. Hence, the capacity of the petitioner to advance the money is established in the matter. He has further submitted that once the issuance of cheque has been proved, the presumption under Section 139 of the Negotiable Instruments Act is attracted and in this regard he has placed reliance upon the judgement of the Supreme Court in the matter of T. Vasanthakumar Vs. Vijaykumari reported in (2015) 8 SCC 378 and in the matter of Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SCC 197. He has also submitted that the presumption has not been rebutted by the respondent in the matter and that even if the cheques were undated, that will not be a sufficient ground for acquittal of the respondent. In this regard, he has placed reliance upon the judgement of this Court in the matter of Sunita Dubey Vs. Kukum Singh Ahirwar reported in 2015 (1) MPLJ 574 and the Division Bench judgement of the Kerala High Court in the matter of Bhaskaran Chandrasekharan Vs. Radhakrishnan reported in 1998 CRI. L.J. 3228. In support of his plea relating to availability of sufficient fund with the petitioner for advancing the amount to the respondent, he has referred to the oral statement of PW/1 Lalit Kumar Dosi.

Opposing the prayer, learned counsel for the respondent has relied upon the judgement of the Supreme Court in the matter of John K. Abraham Vs. Simon C. Abraham and another reported in (2014) 2 SCC 236 and has submitted that the burden was on the petitioner to establish that he was having sufficient fund to advance the loan to the respondent and the same has not been proved.

3

Having regard to the submissions made by learned counsel for the parties and considering the material pointed out by learned counsel for the petitioner and also taking note of the statement of PW/1 Lalit Kumar Dosi and the conclusions which are already drawn by the Court below in favour of the petitioner, I am of the opinion that a case for granting leave to appeal is made out.

Hence, the M.Cr.C. is allowed and the leave to appeal against the judgement dated 28/02/2018 is granted. Office is directed to register the appeal separately. The respondent is directed to furnish a bail bond of Rs.15,000/- for his appearance during the pendency of appeal before the office of this Court on 02/03/2020 and such other further dates as may be fixed by the office.

C.c. as per rules.

(Prakash Shrivastava) Judge krjoshi Digitally signed by KHEMRAJ JOSHI Date: 2020.01.13 17:12:56 +05'30'