Pavish Shukla vs Pankaj Sharma

The applicant/accused has preferred this revision petition against judgment dated 06/09/2018 passed by Second Additional Sessions Judge, Shajapur

in Criminal Appeal No. 13/2018, whereby the judgment of conviction passed by the learned Judicial Magistrate, First Class, Shajapur in Criminal Case

No. 1628/2013 has been upheld, by which the applicant has been convicted for commission of offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 and he has been sentenced to undergo 3 months SI and he is also directed to pay compensation of Rs.2.50 lacs to the

respondent/complainant under Section 357(3) of the Cr.P.C.

Brief facts of the case are that respondent/complainant filed a private complaint against the applicant for commission of offence punishable under

Section 138 of the Negotiable Instruments Act, 1881 alleging that the applicant for his personal need had required a sum of Rs.2.20 Lacs, which he

demanded from the complainant. On 15/05/2013, complainant has paid the aforesaid amount before the witnesses and on the same date an agreement

was also executed on a Rs.100/- stamp paper, in which it was agreed between them that the said amount is paid for a period till 15/07/2013. When the

complainant demanded the said loan amount, then applicant issued a cheque no. 021451 dated 07/08/2013 amounting to Rs.2.0 Lacs in favour of the

complainant. The said cheque was presented by the complainant for encashment but the same was return unpaid due to “insufficient fundsâ€.

Thereafter, the complainant served upon statutory legal notice to the applicant but the applicant did not pay the cheque amount to the complainant.

The trial Court after considering the evidence adduced by the parties, convicted the applicant for the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 and sentenced him to undergo 3 months SI and also imposed compensation to be paid to the complainant to the tune

of Rs.2.50 Lacs under Section 357(3) of the Cr.P.C. Feeling aggrieved with the impugned judgment passed by Judicial Magistrate, First Class,

Shajapur, the applicant had preferred Criminal Appeal No. 13/2018 before the Sessions court and learned Second Additional Sessions Judge, Shajapur

vide impugned judgment dated 06/09/2018 affirmed the judgment passed by the JMFC, Shajapur. Being dissatisfied with the impugned judgment, the

applicant has preferred instant revision petition before this Court.

Learned counsel for the applicant submits that the applicant/accused successfully rebutted the presumption under Section 139 of the Negotiable

Instruments Act, 1881 and has raised probable defence. The applicant has questioned the financial capacity of the complainant and without there

being any proof of financial capacity, the courts below erred in convicting the applicant for the alleged offence. Learned counsel for the appDilip S.

Dhanukar Vs. Kotak Mahindra Co. Ltd.,(2007) 6 SCC 528.

On the other hand, learned counsel for the respondent/complainant refuting the submissions of the learned counsel for the applicant contends that

signature on the cheque having been admitted by the applicant, thus, a presumption has rightly been raised that cheque was given in discharge of a

debt of liability. The applicant has not been able to prove any probable defence and the courts below have rightly convicted the applicant for the

alleged offence. No case was taken by the applicant that complainant has no other source of income to advanced loan to the applicant. Hence, he

prayed for rejection of the petition..

I have considered the rival contentions advanced by the learned counsel for the parties and perused the records.

Complainant-Pankaj Sharma (PW 1) stated in examination in chief that loan amount of Rs.2.20 Lacs was given to the applicant and for discharge

of the same, the applicant issued cheque No. 021451 dated 07/08/2013 in favour of the complainant. The said cheque was presented by the

complainant in his bank account for encashment, which was return unpaid on 08/08/2013 with endorsement “insufficient fundsâ€​.

In the complaint as well as in the cross-examination complainant stated that he has advanced loan to the applicant/complainant on 15/05/2013 for a

period of two months. In this regard agreement (Ex. P/1) was also executed by the applicant in favour of the complainant. Aftab Ahmad (PW 2) has

testified that he has signed the agreement (Ex. P/1) as witness, by which transaction of money was held, however, in the cross-examination, he

accepted that no exchange of money was made in his presence.

In the present case, signature on the cheque is not denied by the applicant, due to which presumption shall be raised that cheque was issued in

discharge of any debt or liability, however, complainant claims that he advanced loan amount of Rs.2.20 Lacs to the applicant. According to the

complainant, he is working a recovery agent in State Bank of India. In his cross-examination, he accepted that he got Rs. 5,000/- per month as salary

and now he is getting Rs.8,000/- per month. He also admitted that he is not income-tax payee. Therefore, it is clear that at the time of transaction, the

complainant was not having financial capacity to lending amount of Rs.2.20 Lacs to the applicant, hence, the complainant has failed to prove that he

was having financial capacity to lend Rs. 2.20 lacs as loan amount to the applicant and the applicant/accused successfully rebutted the presumption

under Section 139 of the Negotiable Instruments Act, 1881 and has raised probable defence.

On the basis of aforesaid discussion this Court is of the considered view that the courts' below have committed error in holding that the applicant

has issued the cheque in question for discharge of any legal debt or liability. Accordingly, this revision petition is allowed and the impugned judgments

passed by the Courts below are hereby set aside. Resultantly, the applicant has been acquitted from the charge for offence punishable under Section

138 of the Negotiable Instruments Act, 1881. Any compensation amount, if deposited by the applicant before the trial Court, shall be reimbursed to

him.

Let a copy of this order be sent to the concerned courts alongwith the records for information and necessary compliance.