Laxman vs Vijay S. and Another

N.K. Mody, J.—Being aggrieved by the judgment dated 18.8.2009 passed by IX Additional Sessions Judge, Ujjain in Criminal Appeal No. 277/09, whereby the judgment dated 20.5.2009 passed by JMFC, Ujjain in Criminal Case No. 11087/07 whereby the petitioner was convicted for an offence alleged to have been committed u/s 138 of Negotiable Instruments Act (which shall be referred hereinafter as an "Act") with imprisonment of one year''s RI and fine of Rs. 1,20,000/-. was maintained, the present petition has been filed.

Short facts of the case are that the respondent No. 1 filed a complaint against the petitioner u/s 138of the Act on 4.10.2007 alleging that the relationship between the petitioner and respondent No. 1 was cordial. It was alleged that on account of personal need a sum of Rs. 1,15,000/- was lent by the respondent No. 1 to the petitioner. It was alleged that after receipt of the amount petitioner issued a cheque dated 14.8.2007 of Vikramaditya Nagrik Sahkari Bank, V.D. Cloth Market, Fajalpura, Ujjain for amount of Rs.1,15,000/- in favour of respondent No. 1. It was alleged that at time of issuance of cheque, respondent No. 1 was assured that upon presentation the cheque will be honoured. It was alleged that the cheque was submitted by the respondent No. 1 for collection on that very day, but the same was returned with an endorsement "insufficient fund". It was alleged that the notice of demand was issued by the respondent No. 1 on 17.8.2007, which was duly served, but in spite of that neither the amount was paid, nor notice was replied. It was alleged that by not making the payment of cheque amount, petitioner has committed an offence which is punishable u/s 138of the Act. It was prayed that after taking cognizance of the offence, petitioner be convicted.

After taking cognizance of the offence and after securing presence of the petitioner, learned Trial Court framed the charge against the petitioner and after recording of evidence, petitioner was convicted as stated above. Against which an appeal was filed by the petitioner, which was dismissed, hence this petition.

Learned Counsel for the petitioner argued at length and submits that petitioner was convicted illegally while petitioner has not committed any offence. It is submitted that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this revision. It is submitted that the learned Courts below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. Learned Counsel placed reliance on a decision of Madras High Court in the matter of Ashok Kumar v. Gunasekaran 2005(1) OCR 323, wherein in a case of section 138of the Act there was no proof of passing consideration, Madras High Court has held that the compliant is unsustainable. Learned Counsel submits that in the fact and circumstances of the case, conviction and sentence be set aside.

In alternative, learned Counsel submits that petitioner was in jail w.e.f. 18.8.2009 and the jail sentence was suspended by this Court vide order dated 31.8.2009. It is submitted that looking to the nature of offence and the fact that petitioner has already served substantive part of jail sentence, the same may be reduced to the period already undergone.

Learned Counsel for respondent No. 1 submits that after due appreciation of evidence both the Courts below have found that the petitioner has committed the offence. Learned Counsel placed reliance on a decision in the matter of M. Devaraj v. Johnson 2005(1) DCR 219, wherein in a case blank cheque was issued for security, Madras High Court has held that this is not a ground of defence and revision was dismissed. Learned Counsel further submits that the revisional jurisdiction of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below, hence the petition be dismissed.

From perusal of the record it is evident that to prove the case respondent No. 1 has filed the documents Ex. P/1 to Ex. PAS. Ex. P/1 is the cheque. Ex. P/2 is memorandum. Ex. P/3 is demand notice, Ex.P/4 is postal receipt of registry, Ex. P/5 is UPC receipt and Ex. P/6 is acknowledgement. Apart from this respondent No. 1 has examined himself as PW/1.

From perusal of the complaint it is evident that in the complaint no date of loan transaction has been mentioned. However, it is alleged that the loan of Rs. 1,15,000/- was given by the respondent No. 1 to the petitioner for a period of two months. Respondent No. 1 was aged 25 years at the time of transaction. In the complaint purpose of loan has not been mentioned. In his cross-examination respondent No. 1 has admitted that the father of the respondent No. 1 is Proprietor of the Dairy. It is also admitted that petitioner is also in the Milk business. A suggestion is given that the petitioner was supplying the Milk @ 200-200 litres every day in morning and evening. Respondent No 1 has shown his ignorance alleging that the business is being looked after by his father. Respondent No. 1 has admitted that father of the respondent No. 1 is having full knowledge about the case and he is present in Court and is sitting outside. In spite of the fact that the father of the respondent was having full knowledge about the case, and was present in Court, he was not examined.

So far as maintenance of account of Dairy is concerned, respondent No. 1 has stated that the account is being maintained or not is not known to the respondent No. 1. From perusal of Ex. D/1 it is evident that FIR was lodged by the petitioner on 13.8.2007 relating to some quarrel between the petitioner and father of respondent No. 1. The alleged cheque is also dated 14.8.2007. From perusal of the cheque itself it is evident that the petitioner is illiterate person and can hardly put signature. There is nothing on record to show that who has filled in the cheque. Respondent No. 1 has admitted in para 13 of his cross-examination that some dispute took place on 13.8.2007 between the petitioner and father of respondent No. 1 and in that regard Police report was lodged as Ex. D/1.

Petitioner has examined Jeevan Guru as DW1, who is also in the Dairy business and is having Dairy. This witness has stated that he is in the Dairy business since last 20 years. He has further stated that advance money is being given to the person who supplies the Milk and in security cheques are obtained. This witness has further stated that the petitioner was supplying the Milk to Shyam Sundar, who is father of respondent No. 1. He has also stated that the account was settled between the petitioner and Shyam Sundar in his presence. He has further stated that after settlement of account when the cheque was demanded, the same was not returned and dispute took place between respondent No. 1 and petitioner.

The case which was made out by the petitioner was rejected by the learned Court below on the ground that in the Ex. D/1 there is nothing relating to the cheque and it is only stated that the dispute is regarding some money transaction. Learned Court below has further observed that it is also not stated in the report that the cheque was issued in security.

Keeping in view the fact that the petitioner appears to be an illiterate person, who can hardly sign and some dispute took place on 13.8.2007, while the cheque is dated 14.8.2007 and no date is mentioned in the complaint about giving of loan of Rs. 1,15,000/- and also no purpose of loan has been mentioned in the complaint and also keeping in view the fact that respondent No. 1 is a young man hardly was of the age of 25 years at the time of alleged transaction, it can safely be said that the cheque was issued in security of some transaction of Milk which took place between the petitioner and father of respondent No. 1 and the prosecution has been filed in the name of respondent No. 1.

Ail these aspects were not taken into consideration by the learned Courts below while convicting the petitioner. In view of this petition filed by the petitioner is allowed and the judgment passed by the learned Courts below whereby the petitioner has been convicted is set aside.

With the aforesaid observations, petition stands disposed of.