Jharkhand High Court
Asfak Anjum @ Asfaque Anjum @ ... vs The State Of Jharkhand on 8 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 1005 of 2012
Asfak Anjum @ Asfaque Anjum @ Dulare Khan son of
Sahabuddin Khan, resident of M/s Electronic &
Furniture, Loyabad Main More, P.O.- Bansjora, P.S.-
Loyabad, District-Dhanbad ... Petitioner
-Versus-
1. The State of Jharkhand
2. Asraf Ansari son of Late Abdul Razaque, resident of
Loyabad No. 6, P.O.- Bansjora, P.S.- Loyabad, District-
Dhanbad ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Sanjay Kumar Sinha, Advocate
For the State : Ms. Nehala Sharmin, A.P.P.
For the Opposite Party No. 2: Mr. Suraj Singh, Advocate
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Through Video Conferencing
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6/08.07.2021
1. Heard Mr. Sanjay Kumar Sinha, the learned counsel appearing
on behalf of the petitioner.
2. Heard Mr. Suraj Singh, the learned counsel appearing on
behalf of the Opposite Party No. 2.
3. Heard Ms. Nehala Sharmin, the learned A.P.P. appearing on
behalf of the Opposite Party No.1-State.
4. The present criminal revision application has been filed against
the Judgement dated 05.09.2012 passed by the learned
Additional Sessions Judge, I-cum-Special Judge, Dhanbad in
Criminal Appeal No. 104 of 2012, whereby and whereunder
the Judgment of conviction and the order of sentence dated
08.02.2012 passed by the learned Judicial Magistrate, 1st Class,
Dhanbad in C.P. Case No. 1586 of 2006 / T.R. No. 516 of 2012
was affirmed and the criminal appeal was dismissed.
5. The learned Trial Court had convicted the petitioner for the
offence under Section 138 of the Negotiable Instruments Act
and had sentenced him to undergo Simple Imprisonment for
two years and a fine double of the cheque amount i.e.
Rs.45,000 x 2 = Rs.90,000/- as compensation and cheque
amount. The learned trial court had directed the petitioner to
pay Rs.80,000/- to the Complainant as compensation and to
deposit the rest amount of Rs.10,000/- in the Government
Account, Government of Jharkhand as fine and in default
thereof, to undergo Simple Imprisonment for further three
months as a separate part of the sentence.
6. Learned counsel appearing on behalf of the petitioner while
advancing his arguments submitted that the only point
involved in this case is that the cheque itself was not issued in
discharge of any liability and accordingly, one of the basic
ingredients of the offence under Section 138 of the Negotiable
Instruments Act was not at all satisfied. Learned counsel
further submitted that the cheque was issued merely as a
guarantee and not in discharge of any debt.
7. Learned counsel appearing on behalf of the Opposite Party No.
2, on the other hand, while opposing the prayer, submitted
that it is not in dispute that the petitioner had issued the
cheque and the other requirements for filing of the Complaint
case under Section 138 of the Negotiable Instruments Act were
duly satisfied. He further submitted that so far as the issuance
of the cheque against the legally payable debt is concerned, it
is a presumption attached with issuance of the cheque and the
said presumption has not been rebutted by the petitioner.
Learned counsel also submitted that the learned courts below
have returned concurrent findings in connection with the basic
ingredients of the offence under Section 138 of the Negotiable
Instruments Act and no illegality or perversity as such has
been pointed out by the learned counsel for the petitioner
calling for any interference under revision jurisdiction.
8. Learned counsel appearing on behalf of the Opposite Party
No.1-State supported the arguments advanced on behalf of the
Opposite Party No. 2.
9. After hearing the learned counsel for the parties and going
through the impugned judgments and the lower court records
of the case, this Court finds that the prosecution case is based
on a Complaint being C.P. Case No. 1586 of 2006 presented on
27.09.2006 alleging inter-alia that both the parties were
businessmen and were known to each other. The
Complainant's son was trying to change his transporting
business after selling his trucks and about this, the petitioner
had knowledge and so the petitioner came in contact with the
Complainant side and offered his son to participate in a new
business and after being convinced, the Complainant spent a
huge amount in the business of the petitioner by selling his
trucks, but on asking to repay the benefits of the share, the
petitioner issued a post dated cheque bearing no. 831576 dated
07.08.2006 for a sum of Rs.45,000/- in favour of the
Complainant. On presentation of the cheque on 10.08.2006
with the consent of the petitioner, the same was dishonoured
due to being insufficient fund. The further case of the
Complainant was that the petitioner was informed in respect
of the payment of the bounced cheque amount, but he did not
pay the same. The Complainant sent a legal notice to the
petitioner on 06.09.2006 by post as well as by courier service,
but the petitioner did not pay the said amount and ultimately,
the Complaint case was filed.
10. After enquiry, vide order dated 05.01.2007, a prima facie case
under Section 138 of the Negotiable Instruments Act was
found against the petitioner and he was summoned. On
02.02.2007, the petitioner surrendered in court and he was
enlarged on bail. On 23.04.2007, the substance of accusation
under Section 138 of the Negotiable Instruments Act was
explained to the petitioner in Hindi to which he pleaded not
guilty and claimed to be tried.
11. In course of trial, the Complainant examined altogether three
witnesses in support of his case. C.W.-1 is Aeman Ansari who
is the son of the Complainant, C.W.-2 is Md. Ashraf Ansari
who is the Complainant himself and C.W.-3 is Md. Naim.
C.W.-2 exhibited the writing and signature of the petitioner on
Cheque No.831576 dated 07.08.2006 as Exhibit-1, bank return
memo as Exhibit-2, Legal notice as Exhibit-3, postal receipt as
Exhibit-4, Receipt of Nightangle Courier as Exhibit-4/1 and his
signature and the signature of his counsel on the Complaint
Petition as Exhibit-5 and 5/1 respectively. On 11.01.2012, the
statements of the petitioner were recorded under Section 313
of Cr. P.C. wherein the petitioner claimed to be innocent.
12. The learned trial court convicted and sentenced the petitioner
for the offence under Section 138 of the Negotiable Instruments
Act and the learned appellate court affirmed the same and
dismissed the criminal appeal.
13. This Court finds that C.W.-2 is the Complainant who has
stated that the petitioner had issued Cheque No.831576 dated
07.08.2006 for a sum of Rs.45,000/- in his favour and he
identified the writing and signature of the petitioner which
was marked as Exhibit-1. On presentation, the cheque was not
encashed and it was dishonoured. He identified bank return
memo which was marked as Exhibit-2. The legal notice was
sent as per his direction which was prepared by the counsel
which was marked as Exhibit-3. He also identified the postal
receipt as Exhibit-4, Receipt of Nightangle Courier as Exhibit-
4/1 and his signature and the signature of his counsel on the
Complaint Petition as Exhibit-5 and 5/1 respectively. This
Court finds that C.W.-2 has fully supported his case. This
Court further finds that C.W.-1 Aeman Ansari is the son of the
Complainant and he has also supported the case of the
Complainant. C.W.-3 has stated that both the parties were
known to him and there was good business relationship
between them. He has also supported the prosecution case.
This Court finds that all the witnesses examined on behalf of
the Complainant have clearly stated about the dishonour of
the cheque, the return memo, legal notice, etc.
14. This Court finds that the learned courts below also considered
Section 139 of the Negotiable Instruments Act regarding
presumption in favour of the holder of the cheque. Learned
trial court held that the cheque was issued by the petitioner in
favour of the Complainant for discharging his liability i.e. for
debt. It was admitted that at the time of starting a new
business, the Complainant had given pecuniary help to the
petitioner in his business and the petitioner had issued the said
cheque, but the same was dishonoured. Any debt or liability
could not be disproved by the defence. This Court finds that
the learned appellate court also recorded that all the basic
ingredients for offence under Section 138 of the Negotiable
Instruments Act were satisfied and accordingly conviction of
the petitioner was upheld.
15. This Court finds that both the learned courts below have
appreciated the evidences on record and have rightly
considered the provision under Section 139 of the Negotiable
Instruments Act while upholding conviction of the petitioner
under Section 138 of the Negotiable Instruments Act. This
Court also finds that all the basic ingredients for filing the
Complaint case for offence under Section 138 of the Negotiable
Instruments Act were duly satisfied. There is no illegality or
perversity in the impugned judgments of conviction and order
of sentence of the petitioner. This Court does not find any
merit in this case and the same is accordingly dismissed.
16. Interim order, if any, stands vacated.
17. The bail bond furnished by the petitioner is cancelled.
18. Pending I.A., if any, stands dismissed as not pressed.
19. Let the Lower Court Records be sent back to the court
concerned.
20. Let this order be communicated to the court concerned
through FAX/e-mail.
(Anubha Rawat Choudhary, J.)
Binit/
