Dharmendra Gupta vs Ramswayamber @ Rameshwar Singh

Tarun Kumar Kaushal, J.—With the consent of the parties, this matter is heard finally.

Leave granted.

Present petition is directed against the judgment dated 22.6.2011 passed by Judicial Magistrate First Class, Rewa in Criminal Case No. 1613/2009, acquitting the respondent of the charge u/s 138 of the National Instrument Act (for short ''the Act'') on the ground that cheque in question was not issued in discharge of any liability.

Necessary facts, in short, are that on 26.1.2009 respondent/accused received Rs. 1,15,000/- from the petitioner/complainant for his family use and signed the cheque bearing no. 059643 dated 4.2.2009 payable at Sharda Gramin Bank, Amarpatan District Satna. On 24.3.2009 on presentation of the aforesaid cheque, it was bounced for want of funds in the account of the respondent. While a notice informing the fact of bounce and demanding money was sent by the registered post, it could not be served for want of correct address/details of the respondent. Hence, service of notice was made by publication in news paper. At last, on 3.6.2009 petitioner preferred a complaint u/s 138 of the Act in the trial Court.

Learned counsel for the petitioner/complainant submits that the respondent did not deny the signature on the cheque. In the trial Court, initially defence of the respondent was of false implication and he denied the fact of loan from the petitioner, but at the stage of defence evidence, he took another defence of theft of cheque book containing his sign on blank cheque.

On considering the evidence of Rajendra S/o respondent (DW1) and respondent himself (DW2) fact of story of theft of the cheque book does not inspire the confidence because it is nowhere made clear that how the aforesaid cheque reached in possession of the complainant. In such a situation, evidence of DW1, DW2 and Ex. D/2 and Ex. D/3 on this point become pointless. Learned counsel further submits that the trial Court has wrongly placed much reliance on the fact of compromise between the parties in different earlier case of Section 138 of the Act.

Per contra, learned counsel for the respondent submits that Ex. D/1 certified copy of the order dated 20.1.2009 of JMFC, Rewa, it becomes clear that in respect of cheque of Rs. 45,000/- there had been a compromise between the parties and the respondent was acquitted because complainant had received an amount of cheque from him on 20.1.2009.

This is indeed a matter of concern and also a matter of surprise that on 20.1.2009 respondent has paid the amount for Rs. 45,000/- in Court proceedings after compromise, to the complainant and just six days thereafter i.e. on 26.1.2009, how complainant became ready to lend him on Rs. 1,15,000/- again.

Learned counsel for the complainant/petitioner submits that once the sign has not been disputed by the respondent on the cheque, then a strong presumption is available against him that consideration of cheque has been passed in his favour.

In my considered opinion, in this case weakness of the complainant is that he failed to prove real transaction. It is clouded with suspicion and doubts. It is against the human nature that on 20.1.2009 in the Court case after compromise, a case of cheque of Rs. 45,000/- was settled and some how on 26.1.2009 again an amount of Rs. 1,15,000/- was given as a loan to the same person.

Similarly learned counsel for the respondent/accused has also not come with clean hands because he tried to take false defence of theft of cheque book which he could not prove.

After considering the aforesaid situation in totality, it becomes clear that petitioner/complainant is a experienced person of money lending and has taken a calculated risk but has been exposed by his own conduct. In such a situation, he should not much believe upon presumption rather he is required to prove the fact of transaction by his own evidence.

Even otherwise, in case of acquittal if two views of the evidence are possible, then also benefit goes to the accused. In the present case trial Court has appreciated the evidence properly and has reached to a conclusion that which neither can be said wrong nor absurd because complainant and the accused both did not come with clean hands and both have their own weaknesses as discussed above. In such a case, I do not see any cogent reason to interfere with the finding of acquittal in this case. However, it is made clear that parties are free to avail civil remedies, if so advised.

Petition is dismissed.