Radhey Shyam Kushwaha vs State Of U.P.
2023 Latest Caselaw 9715 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved On: 02.02.2023
 
                                                     Delivered On   04.04.2023                 
 
Court No. - 29
 

 
Case :- CRIMINAL REVISION No. - 402 of 2011
 

 
Revisionist :- Radhey Shyam Kushwaha
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Shatrughan Yadav,Ashok Kumar Singh,L.J.Maurya,Rajesh Kumar Singh,Rakesh Sharma,Rishad Murtaza,Sanjay Kumar Singh,Sharad Pathak,Vivek Kumar
 
Counsel for Opposite Party :- Govt. Advocate,S H Ibrahim
 

 
Hon'ble Mrs. Renu Agarwal,J.

The present criminal revision has been preferred agains the judgment and order dated 23.08.2011 passed by learned Special Judge C.B.I, Court No. 2, Lucknow in Criminal Appeal No. 259 of 2010 dismissing the criminal appeal of the revisionist and confirming the judgment and order dated 27.10.2010 passed by the learned Additional Chief Judicial Magistrate, Lucknow arising out of in Complaint Case No. 9335 of 010 Virendra Kumar Sharma Vs. Radhey Shyam Sushwaha relating to the Police Sation Gomti Nagar District Lucknow whereby Revisionist was convicted and sentenced under Section 138 of Negotiable Instruments Act with two years imprisonment and fine of Rs. 20,00,000/- in default of payment of fine further simple imprisonment for six months.

Wrapping the facts in brief, the accused revisionist resides in the house of complainant since 20.03.2008 and both of them had good relations. Both the parties entered into sale agreement on 25.08.2007 regarding the house No. 2/618 Viram Khand Gomti Nagar, for a consideration of Rs. 23, 00,000/- out of which Rs. 1,00,000/- was given by tenant in cash and remaining amount was given in two installment by cheque of Rs. 11,78, 369/- which was given as first installment and rest Rs 9,71,647 was paid by separate cheque. Hence complete amount of consideration was paid and the sale deed was registered. Later on the accused came to the house of complainant on 28.03.2008 and requested to let Rs. 10,00,000/- for his personal need as he fell short of Rs. 10,00,000/- in some project. The complainant paid the amount of Rs. 10,00,000/- by bearer cheque No. 964514 Canara Bank which was submitted in the bank on the same day and was encashed by the revisionist through bank. The accused handed over him the post dated cheque No. 101278 amounting to Rs. 10,00,000/- on 20.04.2008 against HDFC Bank in presence of Suresh Prakash Sharma and Satya Dev Dubey with the request not to produce it before the bank.

The complainant did not produce this check in the bank and waited that the accused will pay the amount lent to him. After a period of one month he submitted the check in Saving Bank Account No. 6466 in Canara Bank Vipin Khand Branch Gomti Nagar, Lucknow on 14.05.2008 which was dishonoured by bank remarking "withhold by account holder" and informed the complainant on 15.05.2008 regarding the dishonour of check. The complainant requested the accused to pay for the amount as the cheque has been dishonoured by the bank and then the accused misbehaved with him.

The complainant sent notice dated 10.06.2008 which the accused received on 12.06.2008. A copy of the notic is filed with the complaint as annexure 4 and 5. The complainant is filed within time limit and in the jurisdiction of the court and prayed to convict the accused.

The complainant adduced himself in support the complaint under Section 200 Cr.P.C and produced original checque return memo, copy of notice, registry receipt as documentary evidence under Section 202 Cr.P.C.

The accused was summoned by the Court and his statement was recorded under Section 251 Cr.P.C The complainant adduced witnesses Satyadev Dubey, P.W-2 in his support. On the contrary accused Radhey Shyam Kushwaha had adduced Chandan Singh, Clerk Canara Bank as D.W.-2 in his support.

After the conclusion of trial the statement of accused was recorded under Section 313 Cr.P.C. In the aforesaid statement the accused denied issuance of cheque and stated that the cheque was missed, therefore, he had stopped the payment of cheque and he is falsely implicated on the basis of that missed cheque.

Learned counsel for the complainant argued in the Court that the complainant sent notice to the accused when the cheque was dishonoured by the bank and filed suit within time limit provided by the Act for the prosecution of accused.

On the contrary learned counsel for the accused argued in the trial court that his cheque was theft, therefore, he stopped payment on 06.09.2007. He did not initiate any legal proceedings in this regard and moved a complaint to the Chariman of the National Commission for Scheduled Caste.

After conclusion of evidence and hearing the arguments, learned trial court found that the signature of accused on the cheque in question are not disputed and accused himself confessed that he stopped payment of this cheque on 06.09.2007. There is no explanation in the statement of the accused regarding the fact, how the cheque reached to the complainant. Once he stated that his cheque was missed, on the very next count he stated that his cheque was theft and again on the third count an application was sent by the revisionist to Superintendent of Police stating therein that signed blank cheque was kept in his office which was taken by the complainant. It is also to be determined whether the cheque was missed from the office or residence of the accused. No information was given by the accused to the bank till 06.09.2007 regarding the missing of the cheque. It is also held that if the cheque is issued by someone, it shall be presumed that the cheque was issued for the payment of any loan or discharge of liability or payment of dues. Therefore, learned trial court found the accused guilty of the offence and sentenced him for simple imprisonment for two years and fine to the tune of Rs. 20,00,000/- Out of which 2/3 was to be given to the complainant as compensation.

Aggrieved with the judgment and order passed by the trial court on 27.10.2010 accused filed an appeal No. 259 of 2010 in the court of CBI, Lucknow who confirmed the judgment and order passed by the learned trial court finding no infirmity, irregularity or illegality in the judgment of the trial court. The appellate court concurrently found that the conclusion arrived by the learned trial court is in consonance with the findings adduced in the trial court, hence, the appeal was dismissed and the judgment of trial court was confirmed.

Aggrieved with the judgment and order dated 23.08.2011 passed by the appellant Court the present revision has been filed.

It is submitted that the findings of both the learned courts are perverse and contrary to the material available on record. Learned trial court has erred in believing the prosecution case and delay in filing the complaint case is not explained which goes to show that the same has been filed after much thought and consultation. Learned trial court did not consider the fact regarding theft of the cheque which was not filled up in the handwriting of the revisionist, therefore, it is prayed to set aside the conviction and sentence awarded by both the courts below against the revisionist.

At the very outset, it is to be mentioned that the revisionist has deposited Rs. 10,00,000/- in compliance of the order of learned trial court and Rs. 3,00,000/- in compliance of the order dated 19.09.2011 of this Court. Learned counsel for the revisionist also drew my attention towards the annexure No. 2 to the application moved by the complainant Virendra Kumar Sharma for the release of Rs. 13,00,000/- in his favour, which was allowed and the said amount was released in favour of the complainant in compliance of the order of this Court dated 17.01.2012.

Learned counsel for the revisionist did not challenge the judgment with regard to the conviction of revisionist. He however, prayed that the sentence awarded against him may be reduced. It is also submitted that the revisionist does not have any other criminal antecedents apart from this case. The revisionist was on bail during the trial and he did not misuse the liberty of bail. The revisionist was sent to jail on 23.08.2011 without his fault and he has deposited half of the cheque amount as per order of the trial court and Rs. 3,00,000/- in compliance of the order of this Court dated 19.09.2011.

Learned A.G.A submitted that there is contradiction in the statement of revisionist recorded during the trial. On the one hand he stated that someone theft his cheque leaf from his house and on the other hand he stated that he kept blank signed cheque for payment to his staff and it was theft from his office by someone. Once the revisionist took the plea that cheque leaf was missed and again he stated that it was theft. No FIR is lodged by revisionist for the missing of his cheque and it is only after 7 days he informed the bank regarding the missing of his cheque. It is admitted case that the revisionist stopped payment of his cheque. Notice was duly proved as per law, therefore, the judgment passed by the learned trial court and first appellant court convicting the revisionist under Section 138 Negotiable Instruments Act is impeachable and is liable to be upheld.

The revisionist purchased the impugned house on payment of Rs. 23,00,000/- as consideration which was duly paid by revisionist to complainant by two different cheques and Rs. 1,50,000/- was paid in cash. After some time the revisionist asked Rs. 10,00,000/- from the complainant as loan which was given by the respondent No. 1 to revisionist by cheque. Therefore, it is undisputed fact that revisionist was to discharge his dues to repay the amount which he received from the respondent and issued a cheque for discharge of his dues. The revisionist did not dispute his signatures on impugned cheque therefore, there is presumption under Section 139 of the Negotiable Instruments Act that cheque was issued by revisionist in discharge of his dues to repay the loan.

Learned counsel for the revisionist argued that blank cheque signed by him was lost and at the same time, he argued that the cheque was carried by complainant when he went inside his house for taking water. It is also undisputed that no legal action was taken by revisionist when the cheque was lost. There is also contradiction whether the cheque was lost from the house of the revisionist or from his office. It is also submitted on behalf of the revisionist that the cheque was issued for the payment of staff but no amount is filled in the impugned cheque which creates doubt as to what amount was to be paid as the payment to staff. The revisionist is not an illiterate person. He is a qualified engineer, therefore, it cannot be presumed that he will keep blank cheque signed by him so carelessly.

Respondent/ complainant issued notice to the revisionist on 10.06.2008 (Annexure-4) and the notice was received by revisionist on 12.06.2008. It is admitted fact that revisionist replied the said notice. Thereafter this complaint was filed within the time limit. Therefore, the complainant proved its case beyond reasonable doubt. However the revisionist could not prove its defence in the trial court as well as in the appellant court.

In this Court also, learned counsel for the revisionist did not dispute the conviction of revisionist. He submitted that more than half of the cheque amount has already been paid to the opposite party/ complainant, therefore, it is prayed to modify the judgment of the trial court and a further prayer is made to set aside the sentence with regard to imprisonment.

It is to be mentioned that the revisionist has deposited Rs. 10,00,000/- in compliance of the order of learned trial court and Rs. 3,00,000/- in compliance of the order of a co-ordinate Bench of this Court dated 19.09.2011. Learned counsel for the revisionist also drew my attention towards the annexure No. 2 to the application moved by the complainant Virendra Kumar Sharma for the release of Rs. 13,00,000/- in his favour which was allowed and the said amount was released in favour of the complainant in compliance of the order of this Court dated 17.01.2012. Hence, the complainant received total cheque amount of Rs. 10,00,000 plus Rs. 3,00,000/-

Supreme Court in the case of Damodhar S. Prabhu Vs. Syed Baba Lal H reported at 2010 (5) SCC 663 has laid down the following guidelines:

"(i) In the circumstances, it is proposed as follows:

(a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.

(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.

(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.

(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount."

It was also clarified by the Supreme Court that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place.

Here, in the case at hand application for compounding is neither moved by revisionist nor by applicant.

It is pertinent to mention here that the complainant was arrayed as party to the revision and he had appeared before this Court through his counsel but no prayer for compounding was ever made by the revisionist or opposite party during the course of hearing. The opposite party did not appear to contest the revision since 08.02.2004 and has obtained Rs. 13,00,000/- by order of the court.

In view of the above it would be appropriae to confirm the conviction of the revisionist under Section 138 of the Negotiable Instrument Act and set aside the sentence of imprisonment of two years and alter the sentence with regard to the fine to the extent of Rs. 13,00,000/- out of total 20,00,000/- deposited by the revisionist would siffice to meet the ends of justice. Therefore, the revisioni is liable to be Party Allowed.

The revision is Partly Allowed.

The judgment and order dated 27.10.2010 passed by the Additional Chief Judicial Magistrate and the judgment and order dated 23.08.2011 passed by the learned Special Judge CBI, Lucknow are hereby confirmed so far as the sentence is concerned, the sentence of imprisonment for two years is hereby set aisde and sentence of fine of Rs. 20,00,000/- is modified and reduced to Rs. 13,00,000/- which is already paid by the revisionist in compliance of the order of the court and has been released in favour of the opposite party No.2.

Having been acquitted with regard to the sentence imposed, in the above noted case the accused/ respondents shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.

Let a copy of this order along with lower court records be transmitted to the trial court concerned for necessary information and compliance.

(Renu Agarwal,J.)

Order Date :- 04.04.2023

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