Amarjeet vs State Of U.P. & Anr.
2012 Latest Caselaw 2348 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

COURT NO.52
 

 
CRIMINAL REVISION NO.3114 OF 2010
 
Amarjeet.........................................................Revisionist.
 
                             Versus
 
State of U.P. and another..........................Opposite parties.
 

 
Hon'ble Surendra Kumar, J.

1. Heard Sri T.K. Mishra, learned counsel for the revisionist, Sri S.M. Ali, learned counsel for the opposite party no.2 and learned AGA for the State.

2. The instant revision has been preferred by the accused-revisionist Amarjeet against the judgment and order dated 20.7.2010 passed by the Additional Sessions Judge, Court No.1, Jhansi, in Criminal Appeal No.32 of 2009, Amarjeet Singh Vs. State of U.P. and another arising out of the judgment and order dated 13.4.2009 passed by the Judicial Magistrate, Court No.9, Jhansi, in Criminal Case No.6293 of 2008 Kanwaljeet Vs. Amarjeet Singh under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as the Act) whereby the revisionist was convicted under Section 138 of the Act and sentenced to undergo six months imprisonment with fine of Rs.1,50,000/-. In default of payment of fine, he was further directed to undergo additional imprisonment for six months. It was further ordered that if the amount of fine is deposited, the same shall be paid to the complainant Kanwaljeet Singh as compensation.

3. The relevant facts are that the complainant Kanwaljeet Singh who is opposite party no.2 herein filed the aforesaid complaint against the accused Amarjeet Singh, who is revisionist herein, in the trial court with the allegations that both the parties knew each other previously. On 9.11.2004, the accused came to the house of the complainant and requested him to give a sum of Rs.1,00,000/- telling his compelling need. The complainant trusting the accused withdrew a sum of Rs.1,00,000/- from the joint account which was in the name of the complainant and his wife from Punjab and Sindh Bank, Jhansi. When the said amount was given to the accused, the accused assured to pay back the same.

4. The accused issued two cheques being Cheque No.242345 dated 16.12.2004 for Rs.50,000/- and another Cheque No.242346 dated 18.12.2004 for Rs.50,000/- to the complainant assuring that he may encash the said cheques from the bank. The complainant deposited the said cheques in the his aforesaid joint account on 20.12.2004 but both cheques were returned to the complainant by the said bank on 17.1.2005 with an endorsement of insufficiency of the amount. When this fact was brought by the complainant to the knowledge of the accused, the accused realized his mistake and reassured the complainant that the said cheques may be again deposited and the same would be encashed. The complainant, accordingly, deposited the same cheques on 15.2.2005 in the joint account which were again returned to the complainant by the bank on 18.2.2005 with the same endorsement. The cheques returned by the bank on 18.2.2005 were received by the complainant on 22.2.2005 then the complainant sent a legal notice on 1.3.2005 through his counsel in this regard, which was served upon the accused on 7.3.2005. In spite of service of notice upon the accused, the accused did neither pay the amount of the cheques to the complainant nor gave any reply to the notice, then the aforesaid complaint was made.

5. The learned trial court after recording statement of the complainant under Section 200 Cr.P.C. and going through the documentary evidence viz both original cheques, slips of the deposit of the cheques in the bank account, notice and postal receipt, summoned the accused to face trial for offence under Section 138 of the Act.

6. The accused in his statement before the trial court denied the allegations and stated that he had neither taken any money from the complainant nor he had given any cheque to the complainant. The accused has further stated that his transaction was going on with one G.S. Oberoi and he issued the aforesaid cheques to G.S. Oberoi. The contents of the cheques were in the handwriting of G.S. Oberoi. The said cheques were only signed by the accused. Since there was some dispute with regard to accounting in the business between the accused and G.S. Oberoi and some hot talks took place, therefore, the said case was falsely instituted against the accused.

7. The complainant as PW-1 was examined in the trial court who proved the allegations of the complaint with regard to dishonour of both cheques and other documents in this behalf.

8. The accused Amarjeet Singh in his statement under Section 313 Cr.P.C. again repeated the same fact saying that he had not borrowed any money from the complainant Kanwaljeet Singh and he did not know the complainant. G.S. Oberoi is relative of the complainant. The said case was instituted to harass him.

9. The next stand taken by the accused in his statement was that notice allegedly sent by the complainant was not received by him as the accused did not reside at the address mentioned in the said notice. Thus service of notice was neither effected upon him nor upon his family member. The accused examined himself as DW-1 in the trial court and filed voter list. Following contentions were raised by the accused before the trial court (who is revisionist herein) that:-

(i) the said notice allegedly sent by the complainant to the accused was not served upon the accused nor any member of his family;

(ii) the accused did not reside at the address given in the notice.

10. Learned trial court after citing a number of rulings and after analyzing the evidence on this point recorded finding in the impugned judgment and order dated 13.4.2009 that the said notice was served upon Smt. Surendra Kaur, wife of the accused, the same was evident from acknowledgement due. As per voter list filed by the complainant, Smt. Surendra Kaur was recorded as wife of the accused. The address of the accused as mentioned in the said notice was the same as given by the accused in his bail application and appearance slip filed by the learned counsel on his behalf. On the basis of this evidence, the learned trial court recorded finding that notice by the complainant was given to the accused at the correct address of the accused, the same was served upon Smt. Surendra Kaur wife of the accused.

11. Learned trial court citing the judgments of Hon'ble Supreme Court and this Court rejected the said contentions of the revisionist. The other finding of the trial court was that from evidence on record, particularly from the accused DW-1, it is clearly proved that the aforesaid cheques have signatures of the accused and the amount mentioned in the cheques was written in the handwriting of the accused. The accused has failed to discharge the burden that he had issued the same cheques in the name of G.S. Oberoi and not in the name of the complainant. Thus the trial court after discussing the evidence available on record gave a finding that it is a case of dishonour of cheques issued by the accused in the name of the complainant and, accordingly, convicted and sentenced the accused Amarjeet Singh by the impugned judgment and order as stated above.

12. The accused-revisionist challenged the judgment and order of conviction and sentence dated 13.4.2009 recorded by the trial court in Criminal Appeal No.32 of 2009 which was also dismissed affirming the judgment and order of the trial court. Thus findings recorded by the trial court have been affirmed by the appellate court.

13. In this revision, learned counsel for the revisionist has also raised the same contentions as raised before the courts below. It has been submitted by the learned counsel for the revisionists that when cheques were dishonoured and were received by the complainant from the bank with the endorsement of insufficiency of the amount in the bank account of the accused, no notice as required under the provisions of Section 138 (b) of the Act was given by the complainant to the revisionist.

14. It has been further submitted by the learned counsel for the revisionist that the complaint filed on 31.3.2005 was barred by limitation being beyond the period provided under Section 142 of the Act. No court shall take cognizance of any offence punishable under Section 138 of the Act except upon a complaint made in writing by the payee or by the holder of the cheque. Such complaint should be made within one month of the date on which the cause of action arises under clause (c) of proviso to Section 138 of the Act. By subsequent insertion of the proviso to Section 142 (b) of the Act, cognizance of the complaint may be taken by the court after prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period.

15. Learned counsel for the revisionist has relied upon decision of Hon'ble Supreme Court in Tameeshwar Vaishnav Vs. Ramvishal Gupta 2010 STPL (LE) 42913 SC wherein it has been held that if first notice is issued and the same is received by the drawer but no action is taken then second notice if subsequently issued and the complaint is filed on the basis of the second notice, the complaint is barred by limitation. Hon'ble Supreme Court on this basis quashed the order of the Magistrate taking cognizance in criminal complaint case under Section 138 of the Act along with the order of the High Court.

16. The facts of reported case are quite different from the facts of the matter before me. In the case before me, only one notice was issued by the opposite party no.2 to the revisionist and this is not the case of the second notice.

17. Per contra, learned counsel for the opposite party no.2/complainant, relied upon the decision reported in Sadanandan Bhadran Vs. Madhavan Sunilkumar 1998 (37) ACC 574 (SC) wherein it has been held by Hon'ble Supreme Court that successive presentation of the cheque for encashment is permissible during the period of its validity, but if after presentation of the cheque and receipt of dishonour of the cheque and return of the cheque with the bank endorsement by the complainant, notice once under Section 138 (b) of the Act is given, the payee forfeits such right of successive presentation of the cheque because in case of failure of drawer to pay money within stipulated time, he would be liable for offence and cause of action for filing the complaint will arise. The period of one month for filing the complaint is to be reckoned from the day immediately following day on which period of 15 days from the date of notice by the drawer expires.

18. The same proposition of law has been reiterated by Hon'ble Supreme Court in M/s Prem Chand Vijay Kumar Vs. Yash Pal Singh and another 2005 (52) ACC 477.

19. After considering the relevant provisions of Sections 138 and 142 of the Act, and going through the evidence on record, the contentions of the learned counsel for the revisionist cannot be accepted. In this case, notice was given by the complainant to the revisionist on 1.3.2005 and the same was served upon wife of the revisionist on 7.3.2005 and the said complaint was filed on 31.3.2005 within limitation provided by the Act.

20. The complainant coming to know about dishonour of the cheques when he received both cheques back with endorsement of the bank, he told the same to the accused-revisionist. The revisionist felt sorry for mistake and asked the complainant/opposite party no.2 to again present the cheques in the bank second time assuring him that cheques would be encashed. Thus, believing upon the accused, the revisionist waited for sometime after first dishonour of the cheques and again presented the same before the bank and when cheques were dishonoured second time, the complainant-opposite party no.2 gave notice as required under provisions of the Act and filed complaint within time.

21. The revisionist even after service of notice upon his wife did neither reply to the notice nor repaid the amount of the cheques to the complainant.

22. The next contention of the learned counsel for the revisionist is that both cheques were not issued or drawn in the name of the complainant and the same were drawn in the name of G.S. Oberoi.

23. With the help of the learned counsel for the parties, I have occasion to see the original cheques which are available on record to find that both cheques were issued or drawn by the revisionist in the name of the complainant and not in the name of G.S. Oberoi. All these facts go to show that the revisionist had no intention to repay the amount of the cheques to the opposite party no.2 and he has rightly been convicted under Section 138 of the Act by the courts below.

24. I also agree with the findings recorded by the courts below in the impugned judgments and orders against the revisionist. I have seriously pondered over the matter on the question of sentence. Considering the aforesaid behaviour of the revisionist who told a lie even to the extent that cheques were not issued or drawn in the name of the opposite party no.2 and said notice was not given at his correct address whereas the same address was mentioned in the bail application and appearance slip filed on his behalf. There is neither a single word of remorse even in the statement of the revisionist recorded under Section 313 Cr.P.C. nor in his evidence while he examined as DW-1. The conduct of the revisionist is further evident from the impugned judgment and order of the appellate court as when the appeal was dismissed on 20.7.2010, the revisionist was absent. No application on his behalf was moved. Consequently, his bail bonds and sureties bonds were cancelled and non-bailable warrant against him was directed to be issued. The amount of personal bond was forfeited and show cause notices were issued to the sureties. The revisionist without complying with the judgment of the appellate court, challenged the judgment and orders of the courts below before this Court by filing the instant revision.

25. This Court vide order dated 10.8.2010 passed following orders:-

"Heard learned counsel for the revisionist and learned AGA.

Issue notice to opp. party no. 2.

Summon the trial court as well as appellate court record.

During pendency of this revision, the revisionist Amarjeet convicted and sentenced under section 138 N.I. Act by judgment and order dated 13.4.09 passed by Judicial Magistrate, Court No. 9, Jhansi and confirmed by Additional Sessions Judge, Court No. 1, in Cr. Appeal No. 32 of 2009 be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Magistrate concerned, subject to the deposit of Rs. 1 lac of fine imposed by trial court. Realization of the rest of the amount of fine shall remain stayed till further order of this court."

26. It is not clear even today as to whether the revisionist has complied with the order of this Court dated 10.8.2010 in depositing the said amount of Rs.1,00,000/- or not. There is no document on record to show that the said amount of Rs.1,00,000/- has been deposited by the revisionist.

27. Considering all these factors, sentence awarded to the revisionist by the courts below is hereby upheld and there appears no sufficient ground to interfere with sentence awarded to the revisionist by the courts below. The revision has no force and is liable to be dismissed. The instant revision, is accordingly, dismissed.

Dt. 30.5.2012.

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