Jharkhand High Court
Shiv Kumar Shangri vs The State Of Jharkhand on 4 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 1020 of 2010
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Shiv Kumar Shangri ...... .... Petitioner
Versus
1. The State of Jharkhand
2. Jitendra Bera ..... .... Opp. Parties
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CORAM : HON'BLE MR. JUSTICE AMBUJ NATH
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For the Petitioner : Mr. Arun Kumar Pandey, Advocate
For the State : Mr. Gautam Rakesh, A.P.P
For the Opp. Party No.2 : Mr. Sameer Ranjan, Advocate
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11/ Dated 04.08.2023
Heard the parties.
The petitioner Shiv Kumar Shangri has filed this revision application
against the judgment dated 20.08.2010 passed by Sri Brajesh Kumar
Gautam, learned Additional Sessions Judge, Fast Track Court-III,
Jamshedpur in Cr. Appeal No.227/2009, whereby and wherein, learned
Additional Sessions Judge, F.T.C.-III, Jamshedpur dismissed the appeal of
the petitioner and upheld the judgment of conviction and order of sentence
dated 10.08.2009, passed by Sri Dinesh Rai, learned Judicial Magistrate, 1 st
class, Jamshedpur in C/1 Case No.189/2008, holding the petitioner guilty
for the offence under Section 138 of the N.I. Act and thereby, sentencing
him to undergo R.I. for one year for the aforesaid offence. The petitioner
was further directed to pay the compensation amount of Rs.5,00,000/- to the
opposite party No.2. The period already undergone by the petitioner during
the trial was ordered to be set off.
The present case was instituted on the basis of complaint petition filed
by the opposite party No.2 Jitendra Bera alleging therein that in the month
of April 2007, the opposite party No.2 had given Rs.5,00,000/- to the
petitioner by way of friendly loan. Against the payment of loan, the
petitioner had issued five cheques of Rs.1,00,000/- each, drawn on Punjab
National Bank, Sakchi Branch, Jamshedpur and requested the opposite party
No.2 to present the cheques for clearance after October, 2007. As directed,
these cheques were presented for encashment in Punjab National Bank,
Jagannathpur Branch, Baharagora but the same were returned with the
cheque return memo, stating that the cheque could not be encashed for want
of sufficient fund in the account of the petitioner. Lawyer's notice was given
to the petitioner on 10.12.2007, requesting the petitioner to pay the cheque
amounts within 15 days from the date of receipt of the notice.
However, the petitioner did not comply with the request made in the legal
notice and subsequently, this case was filed.
In order to prove its case, the opposite party No.2 has adduced both
oral and documentary evidence.
The opposite party No.2 Jitendra Bera has examined himself as
C.W.1. He has supported the case as made out in complaint case and stated
that he had given friendly loan to the petitioner for repayment of loan, the
petitioner had issued cheques. When the cheques were placed for
encashment on 23.11.2007, the same were returned with an endorsement
from the bank that the same could not be encashed for want of sufficient
fund. He has proved the cheques in question which are Exhibit-1 series. He
has also proved the Bank Return Memo which are Exhibit-2 series. Legal
notice was given to the petitioner and the copy of the same has been
exhibited and adduced in evidence as Exhibit-4. A/D, endorsing the fact that
notice was received by the petitioner, has been marked as Exhibit-5. This
witness has been cross examined at length. In his cross examination, he has
stated that he works as a teacher in DAV School, Bahragora and earns
5,000-6,000/- per month. He has stated that he had sold a portion of land at
Bahragora and had given loan to the petitioner from the sale proceeds.
Ashok Barik has been examined as C.W.2. He has supported the case
of opposite party No.2 and has stated that opposite party No.2 had given
loan of Rupees Five Lakhs to the petitioner in his presence in April, 2007.
In order to return the loan amount, the petitioner had issued five cheques of
different dates in the name of opposite party No.2. He has also been cross-
examined at length. There is nothing in the cross-examination to doubt his
veracity.
On perusal of the documentary evidence adduced by the opposite
party No.2, it appears that all the five cheques of Rupees One Lakh each are
Ext.-1 series and the Bank Return Memos are Ext.-2 series. From perusal of
which, it appears that the cheques, in question, were not encashed for want
of sufficient fund in the account of the petitioner. The lawyer's notice dated
10.12.2007 is Ext.-4. From from perusal of which, it appears that petitioner
was informed that the cheques issued by him could not be encashed and he
was requested to make payment of Rs.5,00,000/- to the opposite party
No.2 within 15 days from the date of receipt of notice.
Registration slip is Exhibit-4/1. Acknowledgment Due (A/D) is Exhibit-5.
Learned counsel for the petitioner has submitted that the cheques, in
question were given by the petitioner for business transaction and as such,
the petitioner cannot be held responsible for the offence under Section 138
of the N.I. Act.
Both the opposite party No.2 and his witnesses have been consistent
enough in their statements that the cheques issued by the petitioner to the
opposite party No.2 against the repayment of loan, which was placed in the
bank for encashment within time. The Bank Return Memo also shows that
the cheques could not be encashed for want of sufficient fund. The lawyer's
notice was also issued within time. Despite of receipt of notice, the
petitioner did not return the bounced amount.
Accordingly, I am of the opinion that the prosecution has been able to
prove its case against the petitioner for offence under section 138 the N.I.
Act of beyond all reasonable doubt. Both the learned Trial Court and the
learned Appellate Court have rightly come to the finding regarding the guilt
of the petitioner under Section 138 of the N.I. Act. The sentence passed by
the learned court below does not require any interference.
Accordingly, this revision application is dismissed.
Pending I.A., if any also stands disposed of.
BS/ (Ambuj Nath, J.)
