Anil Kumar Das vs Rasbihari Das
2022 Latest Caselaw 293 Chatt

                                     1

                                                                     NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                           CRR No. 106 of 2021

                      Order Reserved on 03.01.2022

                      Order Delivered on 18.01.2022

    Anil Kumar Das, aged about 48 years, S/o Banmali Das, R/o Flat
      No.110, Badriprasad Apartment, Near Ganpati Hotel, Police Station
      Bargarh, District Bargarh (Orissa).

                                                              ---- Petitioner

                                  Versus

   1. Rasbihari Das, S/o Late Markad Das, R/o J-78, Sector-02, Shankar
      Nagar Raipur, Tahsil and District Raipur, C.G.

   2. State of Chhattisgarh, Through District Magistrate Raipur, District
      Raipur, C.G.

                                                          ---- Respondents

For Petitioner Ms. Fouzia Mirza, Senior Advocate with Mr. Rahim Ubwani, Advocate.

For Respondent No.1 Mr. Swajeet Singh Ubeja, Advocate.

For Respondent No.2/State Mr. Chitendra Singh, Panel Lawyer.

Hon'ble Shri Justice Gautam Chourdiya C A V Order

1. Heard on admission.

2. With the consent of the parties, the matter is heard finally as record

of the Court below is available.

3. Challenge in this revision petition filed under Section 397 read with

401 of Cr.P.C. is to the judgment dated 26.02.2020 passed by the

Sessions Judge, Raipur, C.G. in Criminal Appeal No.247/2019

whereby it has modified the judgment dated 09.04.2019 of Judicial

Magistrate First Class, Raipur, C.G. in Criminal Complaint Case

No.2199/2016 and while upholding the conviction of the petitioner

under Section 138 of the Negotiable Instruments Act (for short ' the

N.I. Act), modified the sentence of three months simple

imprisonment and fine of Rs.4,70,000/- by sentencing him to

imprisonment till rising of the Court and directing to pay

compensation of Rs.5,50,000/- to the complainant, in default to

undergo simple imprisonment for six months.

4. As per averments in the complaint, the petitioner happens to be the

relative of the complainant and relations between them were

cordial. The petitioner being in need of money for his business

obtained a sum of Rs.8,00,000/- from the complainant against

selling of his residential plot in favour of the complainant and in lieu

of the said amount, he issued a cheque bearing No.036882 dated

16.1.2016 amounting to Rs.4,50,000/- of HDFC Bank, Bargarh

(Orissa). However, when the said cheque was presented by the

complainant before the Corporation Bank Pandri, District Raipur,

C.G. on 10.02.2016, the same stood dishonoured on 11.2.2016

due to insufficient fund in the account of the petitioner. Thereafter,

the complainant sent a legal notice on 17.2.2016 to the petitioner

through his Advocate which was received by him 20.02.2016 but

even thereafter the petitioner did not make payment of the cheque

to the complainant which compelled the complainant to file a

complaint case under Section 138 of N.I. Act before the Court.

5. Learned counsel for the petitioner submits that the cheque in

question was not issued by the petitioner in favour of the

complainant towards any liability. In fact, the cheque in question

was stolen by someone and has been misused by the complainant.

There is no amount given by the complainant to the petitioner as no

supporting document i.e. income tax return or any statement of

account was produced before the trial Court. There are

contradictions between the pleadings in the complaint and

statement of the complainant before the trial Court and as such the

petitioner has wrongly been held guilty under Section 138 of the

N.I. Act by the trial Court. It is submitted that the presumption

under Section 139 of the N.I. Act is rebuttable presumption. The

complainant has not produced any document regarding payment of

money to the petitioner. Being so, the judgment of the trial Court as

also of the Appellate Court are liable to be set aside.

Reliance has been placed on the decision of Hon'ble

Supreme Court in the matter of Basalingappa vs. Mudibasappa

reported in 2019 Volume 5 SCC 418.

6. On the other hand, learned counsel appearing for the respondent

No.1 supporting the impugned judgment submits that from the

material available on record, it is manifestly clear that the

complainant has duly proved his case. There is no complaint

lodged by the petitioner regarding theft of the cheque in question or

its misuse by the complainant. Lastly, it is submitted that

considering the age of the petitioner and the fact that he has no

criminal record, the Appellate Court has already taken a lenient

view and modified the sentence, as such there is no need to

interfere with the impugned judgment.

7. Learned counsel for the State supported the impugned judgment.

8. Heard learned counsel for the parties and perused the material

available on record.

9. From the record, it is seen that a cheque amounting to

Rs.4,50,000/- bearing the signature of the petitioner was issued in

favour of the complainant on 16.1.2016 vide Ex.P-1 and as per

Ex.P-2 and Ex.P-3, the said cheque could not be encashed due to

insufficient fund in the account of the petitioner. As per Ex.P-4, a

legal notice was sent by the complainant to the petitioner on

17.2.2016 and as per Ex.P-5 i.e. postal receipt, the same was

received by the petitioner. The complainant has duly proved the

aforesaid documents and categorically stated that the cheque in

question was issued by the petitioner in his favour which got

dishonoured due to insufficient fund in his account and despite

legal notice being sent to the petitioner, he did not pay back the

said amount. This Court finds no substance in the defence raised

by the petitioner that the cheque in question was in fact stolen by

someone and misused by the complainant as no any report or

complaint was made by the petitioner to the police regarding

commission of theft of the said cheque or against the complainant

for misuse of the cheque. Further, there is no contradiction in the

pleadings of the complainant and his evidence before the trial Court

as in the complaint he has clearly stated that the petitioner obtained

a sum of Rs.8,00,000/- from him in lieu of sale of his residential plot

in favour of the complainant as he was in need of money for

commercial purposes and that he issued the said cheque of

Rs.4,50,000/- in his favour. Before the trial Court, he has reiterated

the same facts and proved the same by leading documentary

evidence.

10. So far as judgment relied upon by counsel for the petitioner is

concerned, it being distinguishable from the facts of the present case

is of no help to him.

11. On the basis of aforesaid discussions, this Court is of the opinion

that the Courts below were justified in holding the petitioner guilty

under Section 138 of the N.I. Act. As looking to the age of the

petitioner and the fact that he has no criminal antecedent, the

Appellate Court has already taken a lenient view by reducing his

imprisonment from three months to till rising of the Court by directing

him to pay compensation of Rs.5,50,000/- to the complainant in

place of payment of fine Rs.4,70,000/-, no interference is required

with the sentence part as well.

12. Resultantly, the revision petition being without any substance is

liable to be dismissed and is, accordingly, dismissed at the

admission stage itself.

Sd/-

Gautam Chourdiya Judge

Akhilesh