Ajay Singh vs State and Another

Mukta Gupta, J.—By the present petition, the Petitioner seeks setting aside of order dated 10th December, 2010 passed by learned District

Judge (East)-cum-Additional Sessions Judge upholding the judgment dated 9th December, 2000 and order in sentence dated 23rd February,

2010 passed by the learned Metropolitan Magistrate convicting the Petitioner for offences punishable u/s 138 Negotiable Instruments Act, 1881

(for short ''NI Act''). Learned counsel for the Petitioner states that the impugned judgment is based upon conjunctures and surmises. Learned

Appellate Court and learned Trial Court without appreciating the factual matrix of the case have convicted the Petitioner. Learned Courts have

ignored the fact that the loan amount alleged to be given by the Respondent to the Petitioner was without any documentation or any written

agreement. It is also an admitted position that the said loan was rendered to the Petitioner without any interest and making any person witness

thereof. This creates a doubt upon the contention of the Respondent. It is stated that the Respondent herein is a Government servant drawing a

salary of Rs. 6000-7000 per month and such a low salaried employee cannot arrange a huge amount to render loan to anyone. Learned Appellant

Court as well as the learned Trial Court have erred in not appreciating the deposition of the Petitioner himself and the DW1 & DW2 pertaining to

the cheque bearing No. 195964 wherein all of them have stated that the aforesaid cheque in question was handed over signed and blank by the

Petitioner to the Respondent to secure the payment of his share in the society namely ""Aapsi Sahayata Samiti"" because he had left for his native

village in the month of October.

Per contra learned counsel for the Respondent states that there is no ground for this Court to interfere in the impugned judgment. There is no

error as pointed out by the learned counsel for the Respondent. CW1 Jaipal Singh has stated that he has given amount of Rs. 1,60,000 in cash

after taking a loan of Rs. 1,00,000 from the bank and has also produced his passbook showing withdrawal of Rs.90,000. Thus, a clear case is

made out against the Petitioner herein and Learned Trial Judge as well as Learned Appellate Court have correctly come to the conclusion that was

a case of issuance of post-dated cheques towards the security and repayment of the loan amount. Further dishonouring of the said cheque in

question has been proved. Thus, there is no merit in the present petition and the same is liable to be dismissed.

I have heard learned counsel for the parties and perused the record. The only issue disputed in the present case is whether the Respondent has

been able to prove that the cheque in question was issued in discharge of a legal liability or a debt, or it was given as a security by the accused.

One of the primary contentions of the Petitioner is that the Respondent is doing a small time job at Mother Dairy and is thus not in a position to

advance loan to anybody to the tune of Rs. 1,60,000. In view of the suggestion given by the Petitioner to the Respondent that he was running a

society in the name of ""Aapsi Sahayata Samiti"" which is accepted by the Respondent this contention is unsustainable. Further the Respondent has

been able to discharge the onus by showing his pass-book depicting withdrawal of a sum of Rs.90,000 from his bank account. The only defence

raised by the Petitioner is that the complainant obtained blank signatures from him to secure his share in the committee. Though the Petitioner

considers it to be a probable defence, however it may be noted that in the present case by proving the withdrawal of a sum of Rs. 90.000 and the

fact that he was running a committee giving money to the people on their bidding the Respondent has proved its case beyond reasonable doubt.

I find no infirmity in the orders passed by the Learned Metropolitan Magistrate and the Learned Additional Sessions Judge warranting

interference by this Court. Petition and application are dismissed. The sentence of the Petitioner was suspended vide order dated 15th July, 2011.

Interim order is vacated. The bail bond and the surety bond are discharged. The Petitioner would surrender to the custody to undergo the

remaining sentence.