Bharat Gorai vs State Of Jharkhand

1 Heard learned counsel for the petitioner and the learned A.P.P. for the State.

Petitioner is seeking Special Leave to Appeal in terms of Section 378(4) of Code of Criminal Procedure, 1973 against the judgment of acquittal

dated 08.06.2018 passed by the Learned Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No. 1365/2016 / T.R. No. 1804/2018, whereunder the

sole accused / private opposite party no. 2 has been acquitted of the charges under section 138 of N.I. Act.

As per the complainant, the accused issued a cheque bearing no. 326216 dated 15.03.2016 drawn on State Bank of India, Digwadih Branch,

Jorapokhar, Dhanbad for a sum of Rs. 4,50,000/- in lieu of friendly loan advanced to him on 14.01.2016 in the presence of a witness namely Bhagu

Mahto. On presentation on 05.04.2016, it got dishonoured due to insufficient fund. Thereafter, he gave legal notice, but the accused did not repay the

amount.

Upon Solemn Affirmation and inquiry under section 202 of the Cr. PC and finding prima facie case under section 138 of N.I. Act, accused was

summoned. On his appearance, substance of accusation was explained to him, which he pleaded not guilty and claimed to be tried.Â

During trial, complainant examined himself as CW-1. He supported the case set up in the complaint. He identified the cheque as Ext.-1, return memo

as Ext.-2 and 2/1, legal notice dated 27.04.2016 as Ext.-3, postal receipt as Ext.-4 and complaint petition as Ext.-5. In his cross-examination, he stated

that he cannot read the affidavit filed by him and whether it is in which language. He stated that Shiv Mandir Ashram, Radha Krishna Temple, Bokaro

is run under his guidance. Accused used to visit the temple. He did not receive any salary and the Committee of the temple is neither registered nor it

has separate identity. Accused became his follower and used to make small donation to the temple but no register of donation was maintained in the

temple. He could not say what was the date mentioned on the cheque and when he received the return memo from the bank. He could not tell the

date of legal notice and the date mentioned on the postal receipt. Though, he stated that the accused filled the cheque in the presence of Bhagu

Mahto, a witness mentioned in the complaint, but there was no document to show that money transaction was made between the parties. He took the

money from the Committee to give it to the accused and Bhagu Mahto is also one of the members of the Committee. He admitted that there is no

account in the name of temple and he is not an income tax payee. He denied to be the agent of Rose Valley Company and he did not get certain

amount in his agent code through the wife of the accused. He has denied that the cheque was given as a security. He also denied that the

accused’s wife had filed a case bearing C.P. case no. 955/2017 against him.

Accused has examined two witnesses in support of his case. DW-1 is the accused himself and DW-2 is the wife of the accused. DW-1 has stated

that the complainant represented himself to be registered agent of Rose valley Company and induced him to invest in the name of his wife through

application no. 32 H1 17968967Â MC No. 056378595Â for five years and the complainant gave him certificate of the Company after one week

(Ext.-A). He has stated that the complainant kept on taking money from him on the pretext of depositing in the Company for the next 47 months and

took a sum of Rs. 3,29,000/- from him. On repeated requests, he gave 2-3 receipts to him. He used to take Rs. 7,000/- per month but deposited only

Rs. 2,000/- in the account of his wife (DW-2) in the Rose valley Company. He has identified the deposit receipts dated 10.05.2013, 26.09.2013 and

13.06.2014 as Ext.-B series. Complainant also gave him 39 acknowledgement receipts corresponding to the said application which is marked as Ext.-

C series. On suspicion, he undertook inquiry from Rose valley Company at Dhanbad Office and came to know that the complainant used to deposit

Rs. 1,000/- per month and misappropriated Rs. 6,000/- per month. He warned the complainant of legal consequence, only then he assured that the

amount would be deposited in the name of his wife in the Company. Towards that purpose, cheque no. 326216 was given as a security. When the

complainant did not return the money, accused was forced to write for cancellation of the cheque to the Manager. However, complainant misused the

said cheque and filed case in order to pressurize him not to ask for return of the money. He stated that his wife had filed C.P. Case No. 955/2017

under sections 406 and 420 of the Indian Penal Code against the complainant which was pending before the Judicial Magistrate, Dhanbad. In his

cross-examination, he admitted that the name of the complainant was written by him. He had informed the Bank that the complainant had taken

cheque by means of fraud.

 His wife (DW-2), in her examination-in-chief, supported the defence version and stated that the complainant used to take Rs. 7,000/- per month

from her to invest in Rose valley Company. He deposited only Rs. 1,000/- per month in her name. She has identified the letter sent by her husband to

SBI Branch Manager, Sindri Branch for cancellation of the cheque (Ext.-D). She did not have any document in support of her claim that the

complainant is an agent of Rose valley Company and with respect to giving Rs. 7,000/- per month to the complainant.Â

Learned Trial Court analyzed the evidence on record, took into account the ingredients of section 138 of N.I. Act and came to the conclusion that

the complainant represented himself as a priest of the temple and money given by him was taken from the temple Committee. However, no evidence

was led in that regard. He failed to explain when the money was given by the temple Committee and why temple Committee had not filed the present

case. There was no document on record to show that the complainant is representing the temple Committee. Though, he represents the temple as

priest, but could not provide any other source of income and that he is an income tax payee. Complainant’s statement itself showed that the

money was that of the temple Committee. Liability, if any, was therefore against the temple and not personal liability of the complainant. There was no

written document in evidence of the transaction. Defence, in its version, showed that the complainant used to take Rs. 7,000/- per month from the

accused, but used to deposit only Rs. 1,000/- per month. Other documents were submitted to prove the same. Defence had also produced the

document showing that they had written to the Bank Manager for stopping the clearance of the cheque apprehending its misuse. This made the

version of the defence more credible. Based on analysis of the evidence on record, Learned Trial Court held that the complainant had failed to prove

his case against the accused. As such, accused was acquitted of the charges.

Learned counsel for the petitioner submits that version of the defence seems improbable. If the complainant was liable for any deposit in the

account of the wife of the accused, there was no reason for the accused to issue a cheque in his name as security. Learned Trial Court has therefore

mis-appreciated the evidence on record and acquitted the accused person erroneously. Therefore, Special Leave to Appeal may be granted.

Learned A.P.P. has support the findings rendered by the Learned Trial Court. He submits that the defence has been able to adduce several

receipts in support of their case that money given for deposit in the account of his wife in Rose valley Company were not deposited in full.

Thereafter, C.P. Case No. 955/2017 was filed by the wife of the accused against the complainant for criminal breach of trust and cheating under

sections 406 and 420 of the Indian Penal Code, which was pending before the Court of Judicial Magistrate, Dhanbad. Complainant had failed to show

any document of such transaction in this background, when the accused have been able to rebut the presumption under section 139 of N.I. Act. As

such, complainant has failed to establish the necessary ingredients of Section 138 i.e. existence of legally enforceable debt. The findings rendered by

the Learned Trial Court need no interference. The instant petition is without merit and therefore, deserves to be dismissed.

We have considered the submissions of the learned counsel for the parties, gone through the relevant material evidence relied upon by the learned

counsel for the parties and its discussions on the face of the impugned judgment. Petitioner apparently has not been able to evidence any document to

establish any transaction which lead to creation of legally enforceable debt as against the accused. On the contrary, defence had produced several

exhibits as being acknowledgement receipts in proof of the assertion that the complainant being an agent in Rose valley Company, had induced them

to deposit Rs. 7,000/- per month, though he failed to deposit the entire amount every month and kept substantial amount of it with him. C.P. Case No.

955/2017 was also filed by the wife of the accused against the complainant under sections 406 and 420 of the Indian Penal Code. Complainant had

also written to the Branch Manager, SBI for cancellation of the cheque on apprehension of its being misused.Â

Having regard to the facts and circumstances, noted above, and discussions made by the Learned Trial Court, we do not find that the petitioner

has made out any grounds for Special Leave to Appeal. Accordingly, instant petition is dismissed.       Â