Jharkhand High Court
Rakesh Pandey vs The State Of Jharkhand on 19 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 639 of 2012
Rakesh Pandey, S/O:- Sri Madan Mohan Pandey, Resident
of Village:- Misir Gonda, P.O & P.S.:- Gonda, District:-
Ranchi. ... ... Petitioner
Versus
1. The State of Jharkhand.
2. Smt. Chaitali Dutta, W/o Jayant Dutta,
R/o Jai prakash Marg, 224B, Kanke Road, P.O.+P.S.- Gonda,
Dist.- Ranchi ... ... Opposite Parties
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mrs. Vani Kumari, Advocate
For the O.P. No. 2 : Mr. S. K. Laik, Advocate
For the State : Ms. Niki Sinha, Advocate
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Through Video Conferencing
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12/19.02.2021 Heard Mrs. Vani Kumari, learned counsel for the
petitioner.
2. Heard Mr. S. K. Laik, learned counsel appearing on behalf
of the opposite party no. 2.
3. Heard Ms. Niki Sinha, learned counsel appearing on
behalf of the opposite party -State.
4. The present revision application has been filed against the
judgement dated 29.06.2012 passed by the learned District and
Additional Sessions Judge- V, Ranchi in Criminal Appeal No.
35 of 2011 whereby the learned District and Additional Sessions
Judge-V has dismissed the criminal appeal which was filed
against the judgement dated 09.02.2011 passed by the learned
Judicial Magistrate, 1st Class, Ranchi in connection with C-2287
of 2009/ T.R. No. 1102 of 2011. The learned Judicial Magistrate,
1st Class has been pleased to convict the petitioner under
Section 138 of Negotiable Instruments Act, 1881 and sentenced
him to undergo Simple Imprisonment for a period of six
months and has directed for payment of compensation of
Rs. 3 lakhs to the complainant under Section 357(3) of Cr.P.C.
5. Learned counsel for the petitioner, while advancing her
argument, has submitted that the learned courts below have not
properly considered the defence evidence that the accused had
left his cheque at the house of Mr. Jain Saheb and in spite of
request made by the accused, the cheque was not returned and,
in fact, said Mr. Jain Saheb had refused to return the cheque.
She submits that in view of the evidence of D.W. 1 , the learned
trial court has wrongly convicted the petitioner under Section
138 of Negotiable Instruments Act,1881.
6. However, during the course of argument, the learned
counsel for the petitioner has referred to various dates and has
submitted that the cheque involved in this case was dated
18.07.2009 for an amount of Rs. 3 lakhs, which was deposited in
the account of the accused on 20.07.2009 and the same had
bounced. The complainant had received the information
regarding bouncing of cheque on 31.07.2009. The required legal
notice was sent on 26.08.2009 which was served upon the
accused on 31.08.2009 and in spite of that, the accused did not
pay the cheque amount. Thereafter, the complaint case was
filed on 24.09.2009. The learned counsel submits that the main
point for argument of the petitioner is that there was no debt
payable to the complainant and in fact, the complainant had
misused the cheque.
7. During the course of argument, the learned counsel for
the petitioner has submitted that without prejudice to the
aforesaid submission, considering the facts and circumstances
of this case the sentence of the petitioner be modified. She
submits that the petitioner may be directed to pay some more
amount as fine over and above the compensation amount
within a stipulated time and the sentence be limited to the
period already undergone. She submits that the petitioner has
remained in custody for some time. She submits that at the
stage of revision the petitioner had surrendered on 27.07.2012
and was directed to be released on bail by this Court vide order
dated 23.08.2012.
8. The learned counsel appearing on behalf of the opposite
party no. 2, on the other hand, has submitted that there is
presumption in law that the cheque has been issued against a
debt under Section 139 of the Negotiable Instruments Act, 1881
and over and above the presumption in law , the complainant
had explained as to how the amount was payable to the
complainant. It has come in evidence that the complainant had
talked with the accused regarding purchase of land and the
accused had shown photocopies of the documents regarding
the land. The complainant agreed to purchase the land and the
value of the land was fixed at Rs. 11,50,000/-. The complainant
made a payment of Rs. 3 lakhs in advance to the accused and on
different dates a total amount of Rs. 8.50 lakhs was paid. Thus,
she paid an amount of Rs. 11.5 lakhs and subsequently, when
she learnt that the document relating to the land was forged,
the accused had issued a cheque of Rs. 3 lakhs by way of return
of the amount and, in fact, accused gave total 4 cheques all
dated 18.07.2009 of Rs. 3 lakhs each. He submits that apart from
the presumption, the purpose for which the cheque was
involved was to discharge the liability of the accused and
accordingly, the story which has been placed by the petitioner
that the cheque was left in the house of Jain Saheb who refused
to return the cheque, has been considered and rejected by the
learned court below by consistent finding of facts. The learned
counsel also submits that in revisional jurisdiction, there is no
scope for re-appreciation of evidence and coming to a different
finding. He also submits that so far as the timelines are
concerned, the same has been strictly followed in the instant
case and there is no illegality or perversity in the impugned
judgements.
9. However, during the course of argument, the learned
counsel for the opposite party no. 2 submits that considering
the fact that the opposite party no. 2 is a widow, he has taken
instructions from her that if the compensation amount is
enhanced by Rs. 1 lakh, she has no objection for modification of
the sentence of the petitioner and limiting it to the period
already served by the petitioner in custody.
10. After hearing the learned counsel for the parties and after
going through the records, this Court finds that the timelines as
have been mentioned by the learned counsel appearing on
behalf of the petitioner during the course of argument are not in
dispute and the same is in accordance with the provisions of the
Negotiable Instruments Act, 1881.
11. The learned trial court gave its finding in para 10 of its
judgement which is quoted as under:
"10. Perusal of evidence of complainant (C.W.1), documentary
evidence it is clear that complainant has proved the cheque of Rs. 3
lacs dated 18.7.09 bearing signature of accused as Exhibit-1, the
counter file of pay-in-slip dated 20.7.09 regarding deposit the
cheque in her account for encashment as Exhibit-2, the letter of
State Bank of India CMPDI Branch, Ranchi dated 25.7.09
regarding cheque return unpaid as Exhibit-3, her signature as well
as signature of her advocate on legal notice dated 26.8.09 as
Exhibit- 4 and Exhibit-4/1 respectively and postal registry receipt
regarding sending of legal notice to the accused as Exhibit-5. C.W.
1 complainant Chaitali Dutta during her evidence has also
corroborated the aforesaid facts and stated that to return the
money accused had issued four cheques, and she has filed this case
for one cheque of Rs. 3 lacs which was bounced due to insufficient
fund in the account of accused. He deposed in chief examination
that aforesaid cheque (Exhibit-1) bears the signature of accused.
During cross examination defence has not put any question to
contradict the aforesaid fact. The documentary evidence as well as
oral evidence given by the complainant shows that the necessary
requirements regarding the time limit for prosecution of the
offence u/s 138 of N.I Act has been complied by the complainant.
She had issued legal notice after receiving the information
regarding bouncing of the cheque under prescribed time limit for
the offence u/s 138 of N.I. Act and also she has filed this case
under time limit as prescribed under N.I. Act for prosecution u/s
138 of N.I. Act. Complainant during her evidence has stated that
the cheque was bounced due to insufficient fund in the account of
accused and during her cross examination defence has not put any
question to contradict the aforesaid facts also during defence
evidence stage no any evidence has been produced on behalf of
accused which could contradict the aforesaid facts of dishonour of
his cheque for insufficient fund in his account. Therefore, the
evidence given by the complainant regarding dishonoured of
cheque due to insufficient fund in the account of the accused is
unrebutted by the defence and hence complainant successfully
prove the facts that the cheque was dishonoured due to insufficient
fund in the account of accused."
12. Further, in para 11 and 12 of the trial court judgement, the
learned court below has fully considered the defence evidence
regarding the misuse of cheque by the accused and after
considering the evidences on record and also the presumption
in law, gave a clear finding that the defence could not establish
his defence that the accused had not issued the alleged cheque
for discharge in whole or in part of any debt or liability.
13. The learned lower appellate court gave its findings in
para 15 of its judgement which is quoted as under:
"15. From perusal of the evidence oral and documentary available
on the record, it transpires that cheque dated 18.07.2009 signed by
the accused/appellant Rakesh Pandey was presented before the
bank within a time and it has been marked as Ext.1. The counter-
foil of pay-in-slip regarding deposit of the aforesaid cheque in the
account of the complainant dated 20.07.2009 has been marked as
Ext.2, letter of information of SBI, CMPDI Branch (Ranchi)
regarding information of return cheque unpaid dated 25.07.2009
has been marked as Ext. 3. Signature of complainant Chaitali
Dutta her Advocate Sri B. D. Banerjee on legal notice dated
26.08.2009 has been marked as Ext. 4 and 4/1. Pay-in-slip
regarding pending of legal notice to the accused Rakesh Pandey
has been marked as Ext. 5. C.W 1 has supported her case during
her evidence on oath before the court below. I find that the case
was instituted within 30 days of service of legal notice and
therefore the time framed proved under statue u/s 138 of N.I. Act.
C.W. 1 has herself stated that she gave rupees three lacs as an
advance to the accused to purchase the land. After some time she
came to know that the accused/appellant showed her the document
regarding the land is forged and fabricated. Thereafter she
requested the accused to return her money for which the
appellant/accused issued a cheque bearing no. 115732 dt.
18.07.2009 for Rs. 3,00,000/-. When the complainant presented
the cheque in the SBI, CMPDI Branch (Ranchi) but the cheque
was dishonoured due to insufficient fund in the account of
accused.
Thus, in view of the fact and circumstances above
discussed I find and hold that the prosecution has been able to
establish that the cheque for amount of rupees three lacs which was
issued by the accused/appellant was for discharge of liability as
payment. All the ingredients necessary established offence u/s 138
of N.I. Act has been established beyond all reasonable doubts and
accordingly the accused/appellant is found and held guilty for
offence u/s 138 of N.I. Act. The learned Magistrate has rightly
passed the impugned judgment dated 09.02.2011.
Considered the contention of the parties. Perused the
materials on the record, the charge has been proved against the
accused/appellant is covered u/s 138 of N.I. Act which is a special
Act. The offence relates to economic in nature. I come to the
conclusion and accordingly hold here that the conviction of the
appellant made by the learned Judicial Magistrate, 1 st Class,
Ranchi u/s 138 of the N.I. Act is justified. The conviction and
sentence u/s 138 made by the learned Judicial Magistrate, 1 st
Class, Ranchi sentence to undergo S.I for six months and further
ordered to pay compensation of Rs. 3,00,000/- to the complainant
u/s 357(3) of Cr.P.C. is hereby confirmed. Accordingly, this appeal
is dismissed."
14. So far as the plea of the petitioner that the cheque was left
at Jain Saheb's house and the allegation regarding misuse of
cheque is concerned, the same has been considered by the
learned courts below and the learned courts below have given
consistent finding in favour of the opposite party no. 2 that the
cheque was issued in discharge of debt.
15. This court finds that the learned courts below have given
consistent finding of facts after due appreciation of the
evidences on record and have rightly held the petitioner guilty
of offence under Section 138 of Negotiable Instruments Act,
1881 . This court also finds that the basic ingredients of offence
under Section 138 of Negotiable Instruments Act have been
satisfied in the present case and accordingly, the judgement of
conviction of the petitioner does not call for any interference in
revisional jurisdiction of this Court.
16. This Court fully agrees with the learned counsel
appearing on behalf of the opposite party no. 2 that there is no
scope for re-appreciation of evidence in revisional jurisdiction
and coming to a different finding in absence of any perversity.
This Court finds that no perversity as such has been pointed out
by the learned counsel appearing on behalf of the petitioner.
17. However, so far as the point of sentence is concerned, the
learned counsel appearing on behalf of the petitioner has
herself submitted that if this Court may so please, the sentence
may be modified and the compensation amount payable to the
opposite party no. 2 may be enhanced.
18. Considering the submissions of the parties in connection
with modification of sentence, this Court is of the considered
view that the ends of justice would be served if the sentence of
the petitioner is modified. Accordingly, the sentence of the
petitioner is modified by limiting it to the period already
undergone by the petitioner in custody and impose fine of
Rupees one lakh upon the petitioner over and above the
compensation amount which has already been fixed by the
learned court below with a further condition that the petitioner
would deposit the fine amount (Rupees one lakh) alongwith
the compensation amount (Rupees three lakhs) before the
learned court below within a period of two months from the
date of communication of this order. If the amount is not so
deposited within the said period, the petitioner would serve the
sentence already imposed by the learned trial court.
If the amount is deposited as per aforesaid time-frame,
the bailors will be discharged of their liability under the bail
bond and the entire amount is directed to be immediately
disbursed to the complainant after due identification.
19. This petition is disposed of with aforesaid modification of
sentence.
20. Pending interlocutory applications, if any, are closed.
21. Let a copy of this order be communicated to the learned
court below through 'FAX'.
(Anubha Rawat Choudhary, J.)
Pankaj
