Madhya Pradesh High Court
Yogesh Garg vs Mukut Singh on 3 January, 2023
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
01
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 3rd OF JANUARY, 2023
CRIMINAL APPEAL No. 138 of 2017
BETWEEN:-
YOGESH GARG S/O SHRI KAILASH
CHANDRA GARG, AGED ABOUT 48
YEARS, OCCUPATION: SHOPKEEPER
SADAR BAZAR GUNA (MADHYA
PRADESH)
.....APPELLANT
(MR. ANANT KUMAR BANSAL, LEARNED COUNSEL FOR THE
APPELLANT)
AND
MUKUT SINGH S/O SHRI PREETAM
SINGH YADAV, AGED ABOUT 38
YEARS, GRAM SAFA BARKHEDA
POST SEHROK THANA ARON DT.
GUNA (MADHYA PRADESH)
.....RESPONDENTS
(MR. ANIL KUMAR SHRIVASTAVA, LEARNED COUNSEL FOR THE
RESPONDENT)
This appeal coming on for hearing this day, the court
passed the following:
ORDER
02 This appeal has been filed by the appellant under Section 378 of Cr.P.C. being aggrieved by the judgment dated 6.8.2015 passed by Judicial Magistrate First Class Guna in Complainant case No. 2052/13, whereby the respondent was acquitted from the charge under Section 138 of the Negotiable Instruments Act.
Brief facts of the case are that appellant and respondent were acquainted with each other. Respondent on the need of personal expenses took Rs. One Lac from appellant/complainant by way of loan and assured him that whenever appellant is required he will repay the amount. Thereafter, when he needed aforesaid money he requested respondent. On his request respondent issued a cheque bearing No. 254734 of Punjab and Sind Bank, Branch Guna of his account No.8787 dated 25.07.2013 to the tune of Rs. One Lac. Afterwards, he presented the aforesaid cheque in Bank of India through its account No.889010110005247 on 26.07.2013 that was not honored by dated 29.07.2013. It returned with the note that respondent was not having sufficient amount in his account. Thereafter, he served a notice to respondent on 7.8.2013 by registered Daak which came unserved with the note that addressee denied to receive the letter. Hence, he was forced to file a complaint under Section 138 of Negotiable Instrument Act and adduced his evidence along with document.
The short question which falls for consideration is whether despite proving his case by complainant trial Court erred in dismissing his complaint.
03Appellant Yogesh has stated that he was acquainted with the respondent. Respondent was in need of money for personal expenses. On his demand he had paid Rs.One Lac and he has promised that whenever he is required he will repay the amount. Thereafter, when he was in need of money he demanded from the respondent. He accepted his demand and issued a cheque of Punjab and Sind Bank Branch Guna of his account No.8787 dated 25.07.2013 to the tune of Rs. One Lac. Afterwards, he presented the aforesaid cheque in Bank of India through its account No.889010110005247 on 26.07.2013 for collection. On 29.07.2013 cheque was returned with the note that respondent was not having sufficient amount in his account. Thereafter, he served a notice to him through his Advocate on 7.8.2013 which was came returned on 20.07.2013 with the note that addressee denied to take the letter. Neither he received the notice nor paid the amount. Cheque return memo of Bank of India Ex-P/1, return memo of Punjab and Sind Bank, Branch Guna dated 29.07.2013 Ex-P/2, cheque dated 25.07.2013 of Punjab and Sind Bank, Branch Guna Ex-P/3 on which signature of respondent is on A to A part, registered notice Ex-P/4, RAD Ex-P/5, postal receipt Ex-P/6, and cheque depositing receipt Ex-P/7 have been presented. During cross-examination, he has stated that he knows respondent from 3- 4 years. He has not paid money in front of any one. He got information about dishonored of cheque on 27.7.2013. Thereafter, he has not contacted to the respondent. He has not signed the cheque in front of me. He denied that cheque was not issued by 04 respondent. He denied that aforesaid cheque was not issued from the cheque book of respondent, besides this, no pertinent question has been put in cross-examination so that his evidence could be disbelieved. Besides this, his evidence is well supported by aforesaid documents Ex-P/1 to Ex-P/7.
In support of his contention, counsel for the appellant has placed reliance on a judgment in the case of M/S. Kalamani Tex & Anr vs. P. Balasubramanian, Crl.Appeal No.123/2021 dated 10.02.2021.
In rebuttal, respondent has adduced the evidence of Bank Officer Ramesh Kumar DW/1 who has stated that cheque Ex-P/3 has not been issued by their Branch, but during cross-examination in para No.3 he has accepted that return memo of Ex-P/2 has been issued by their branch. In that notice it has been mentioned that in account No. 8787 sufficient fund is not there, due to this cheque was dishonored. The aforesaid cheque was of their Bank and the seal of their Branch is affixed on the cheque.
In support of his contention, counsel for the respondent has placed reliance on the judgments in the cases of Jayachandran vs. Baburaj reported in 1998 CrLJ 3671 and Vinod Kumar Namdev vs. Zubed Ahmed, reported in 2016 (1) MPWN 8.
Looking to the aforesaid evidence appellant has proved main ingredients of Section 138 of Negotiable Instrument Act, but learned trial Court only on the ground that on acknowledgment it 05 has been over writing that dkV NkaV dh xbZ gS a and disbelieved the acknowledgment Ex-P/4. In the considered opinion of this Court, the trial Court erred in disbelieving the note appended by postman particularly when appellant has annexed a registered receipt of post office Ex-P/6. In these situation, it cannot be doubted that aforesaid notice was not returned with the note that addressee is not ready to take the notice. In these situation, service of notice is proved.
In view of the above discussions and observations, the appeal stands allowed. The judgment dated 6.8.2015 passed by Judicial Magistrate, First Class Guna in RCR No.2052/2013 is quashed and set aside. The respondent - accused is held to be guilty for the offence punishable under section 138 of the N.I. Act. It is directed that the respondent shall pay compensation amount of Rs. 1,50,000/- (Rs. One Lac fifty thousand) to the appellant. In case of default of payment of compensation, respondent shall undergo one year simple imprisonment. The amount of fine, thus deposited by the respondent shall be given to the complainant.
With the aforesaid, the appeal stands allowed and disposed of.
(DEEPAK KUMAR AGARWAL) JUDGE van VANDANA VERMA 2023.01.04 16:34:40 -08'00'