Chattisgarh High Court

Kamal Chand Jain vs Rajesh Jain on 7 September, 2022

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                                                                          NAFR


          HIGH COURT OF CHHATTISGARH, BILASPUR
                        ACQA No. 44 of 2012
                  Order reserved on : 04/07/2022
                  Order delivered on : 07/09/2022
    Kamal Chand Jain, S/o Hukum Chand Jain, Aged About 50
     Years, R/o Taran Provision Store, Shop No. 723, Sector-6A
     Market, Bhilai, District- Durg (C.G.).
                                                            ---- Appellant
                               Versus
    Rajesh Jain, S/o Late Ashok Kumar Jain, Aged About 45
     Years, R/o Ashok Stationery Mart, Shop No. 198, Sector-6A
     Market, Bhilai, District- Durg (C.G.).
                                                           ---- Respondent

For Appellant : Mr. Punit Ruparel, Advocate For Respondent : Mr. Uttam Pandey, Advocate

Hon'ble Smt. Justice Rajani Dubey CAV Order 07.09.2022

1. This acquittal appeal has been preferred by the appellant against the impugned judgment dated 24.11.2011 passed by the First Additional Sessions Judge, Durg (C.G.) in Criminal Appeal No. 116/2010, whereby the learned appellate Court allowed the appeal filed by the respondent/accused against the judgment and order dated 30.10.2010 passed by the Judicial Magistrate First Class, Durg (C.G.) in Complaint Case No. 1331/2010, by which the respondent herein has been acquitted of the charges under Section 138 of the Negotiable Instruments Act.

2. Brief facts of the case are that appellant filed a complaint case under Section 138 of the Negotiable Instruments Act against the respondent before the learned Judicial Magistrate First Class on the ground that the appellant gave loan amounting to Rs.1 lakh in cash to the

respondent/accused and in turn respondent issued one cheque of State Bank of India, Indira Place, Bhilai, District- Durg (C.G.) in favour of the appellant in sum of Rs. 1 lakh. Appellant presented the cheque before the bank for encashment in his account but the cheque was dishonoured on the ground that the respondent/accused was not having sufficient fund in his account and the Bank marked the cheque as "Refer to drawer".

Respondent/accused did not pay the cheque amount despite service of legal notice dated 21.04.2006 thereafter, appellant/complainant filed complaint under Section 138 of the Negotiable Instruments Act before the learned Judicial Magistrate First Class.

3. Vide order dated 30.10.2010, after appreciating oral and documentary evidence, learned Judicial Magistrate First Class has convicted the respondent under Section 138 of the Negotiable Instruments Act and sentenced him to undergo R.I. for one year and to pay fine of Rs. 10,000/- with default stipulation. Respondent/accused has filed the appeal against this judgment before the Sessions Court and learned appellate Court allowed the appeal and acquitted him of the charges under Section 138 of the Negotiable Instruments Act. Hence, this appeal filed by the appellant/complainant.

4. Learned counsel for the appellant submits that the impugned judgment of acquittal dated 24.11.2011 passed by the learned appellate Court is bad in law as well against the evidence and, therefore, is liable to be set aside. Learned appellate Court has committed the error by overlooking the evidence of complainant wherein he specifically deposed that cheque was issued by the respondent/accused and the same was not denied by him also, therefore, the impugned judgment of acquittal is not sustainable in the eye of law. Learned appellate Court has committed grave error as it has given the benefit of doubt

to the respondent. It clearly shows that the respondent did not intend to return the money of the appellant as there was no sufficient fund available in the account of respondent. Learned appellate Court did not properly appreciate the evidence which was adduced by the appellant. Learned appellate Court has framed 5 issues and all are found correct and instead of convicting the accused/respondent, the appellate Court only on the ground of presumption that since the cheque was marked as 'refer to drawer'. The same means the insufficient fund in the account of respondent, but the same was not appreciated by the learned appellate Court in its true perspective. Hence, the order of acquittal is perverse and contrary to record. Appellant preferred the application under Section 391 for the evidence of the Bank Manager on 01.09.2011 but on 05.09.2011, the same was dismissed by the learned appellate Court and finally the evidence of bank manager or employees was not taken. Learned appellate Court has committed error by not considering the real controversy between the parties. The findings recorded by the learned trial Court are correct but were not properly appreciated by the learned appellate Court and thus, findings recorded by the appellate Court are perverse and not sustainable in the eyes of law, therefore, the appeal may be allowed and respondent may be convicted in accordance with law. In support of his argument, learned counsel for the appellant has placed reliance on the judgment rendered by the Hon'ble Supreme Court in the matter of Electronics T. & T.D. Corpn. Ltd. v. Indian T. & E. (Electronics) Pvt. Ltd. passed in AIR 1996 SC 2339.

5. Learned counsel appearing for the respondent would submit that the learned appellate Court is absolutely justified in acquitting the respondent herein in view of the evidence available on record. As such, the acquittal appeal

deserves to be dismissed. Reliance has been placed by the learned counsel for the respondent in the matter of Raj Kumar Shukla vs. Subhodh Agrahari passed in [2010] (1) M.P.L.J. 179.

6. Heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

7. Before trial Court complainant/ appellant has examined himself as A.W.-1 and filed Exs. P/1 to P/5. Ex. P/1 is a disputed cheque dated 13.04.2006, Ex. P/2 is a bank's memo. As per Ex. P/2, Branch Manager has returned the cheque for the reason No. 5 which is 'refer to drawer'. Ex.P/3 is a notice dated 21.04.2006 and Ex.P/4 is a Postal receipt. Ex.P/5 is a acknowledgment of respondent. Respondent has admitted that he gave cheque to the appellant but his evidence is that appellant bought house from him and this amount was adjusted in sale amount. Respondent/accused has examined brother of the complainant who has supported the defence of respondent but he has admitted in para 6 of his cross-in-examination that dispute was going on between him and his brother/appellant over a share of the property.

8. In the matter of Electronics T. & T.D. Corpn. Ltd. v. Indian T. & E. (Electronics) Pvt. Ltd. passed in AIR 1996 SC 2339, Hon'ble Supreme Court has held in para 6 as under:-

It would thus be clear that when a cheque is drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person out of the account for the discharge of the debt in whole or in part or other liability is returned by the bank with the endorsement like (1) in this case, "I refer to the drawer" (2) "instructions for stoppage of payment" and (3) "stamp" exceeds arrangement", it amounts to dishonour within the meaning of Section 138 of the Act. On issuance of the notice by the payee or the holder in due course after dishonour, to the drawer demanding payment within 15 days from the date of receipt of such a notice, if he does not pay the same, the statutory presumption of dishonest intention, subject to any other liability, stands satisfied."

9. In this case, respondent has admitted that he has given a signed cheque to the appellant and has examined the brother of the complainant/appellant in his defence. The defence witness Ashok Jain has clearly admitted the fact that dispute over a share of property was going on between him and his brother/appellant, therefore, his statement is not credible as per Ex.P/2. The cheque was dishonoured in the bank and as per Ex.P/3, notice was given to the respondent within time and after receiving the notice, he did not pay the cheque amount to the appellant. Therefore, learned trial Court has rightly convicted the respondent and appellate Court merely on the technical ground set aside the judgment of trial Court.

10. The findings recorded by the appellate Court are not sustainable in the light of the judgment passed by Hon'ble Apex Court and looking to the facts of the case, the appeal is allowed and the judgment dated 24.11.2011 passed by the lower appellate Court is set aside and the judgment passed by the learned trial Court dated 30.10.2010 is hereby affirmed by convicting the respondent under Section 138 of the Negotiable Instruments Act as stated above.