Sandeep Prasad vs The State Of Jharkhand
2023 Latest Caselaw 2852 Jhar

                               1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Cr. Revision No. 166 of 2017
                          ....
 Sandeep Prasad                                 ...... Petitioner
                     Versus
 1. The State of Jharkhand
 2. Sandhu Sao                                  ...... Opp. Parties
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                     PRESENT
    HON'BLE MR. JUSTICE SANJAY PRASAD
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 For the Petitioner       : Mr. Lalit Yadav, Advocate
                            Mr.Abhishek Kumar, Advocate
 For the State            : Mrs. Priya Shrestha, Spl. P. P.
 For the O. P. No. 2      : Mr. Vishnu P. Pathak, Advocate
                         ......
                    JUDGEMENT

C.A.V. on 05/08/2022 Pronounced on 14/08/2023 ....

The present Criminal Revision No. 166 of 2017 has been filed by the petitioner challenging the judgment dated 04.10.2016 passed in Criminal Appeal No. 10 of 2016 by the learned Principal Sessions Judge, Latehar whereby learned Principal Sessions Judge, Latehar has dismissed the Criminal Appeal No. 10 of 2016 and affirmed the judgement of conviction and order of sentence dated 28.08.2015 passed by Sri Sandeep Nishit Bara, Judicial Magistrate, 1st Class, Latehar in connection with Complaint Case No. 329 of 2013 by which the petitioner has been convicted for the offence under Section 138 of the N. I. Act and has been sentenced to undergo S. I. for a period of One and half (1 ½) years and to pay a sum of Rs. 5,00,000/- as compensation to the complainant- O. P. No. 2.

2. A Complaint case no 329/2013 was filed on 17.12.2013 alleging therein that on 25.11.2013 at about 8:00 A.M. the Petitioner visited the house of the complainant-opposite party no 2 and has stated that he is in a urgent need of a sum of Rs. three lakh

and the opposite party no 2 got convinced by the words of the Petitioner and gave him a sum of Rs. Three Lakh to the Petitioner and in lieu took a cheque of a sum of Rs. Three Lakh bearing cheque no 029539 dated 25/11/2013 of State bank of India, Chandwa Branch, who also issued by the petitioner to the O. P. No. 2. It has been further stated that when the said cheques were presented before the bank for its enchashment then it got dishonoured due to insufficient balance. It has been further stated that a legal notice dated 06/12/2013 was sent to the Petitioner but the said legal notice was not answered.

3. Heard learned counsel for the petitioner and learned APP for the State and learned counsel for the opposite party no. 2.

4. It is submitted by the learned counsel for the petitioner that the judgments and order passed by the learned Court below are not sustainable in law. It is submitted that the Learned Court below has failed to appreciate that the independent witnesses, before whom the cheque was given, have not been examined which creates a doubt to the veracity of prosecution story. It is submitted that the Learned Court below has not at all considered the contradictory deposition of the Complainant stating that on 25/11/2013 a sum of three lacs rupees was given to the Petitioner in presence of witness Krishan Gopal while during his cross examination he has stated that on 25/11/2013 the Petitioner came to the house of one Sushil Agarwal at Latehar and during his presence a sum of Rs. Three Lakhs was handed over to the petitioner by the opposite party no 2. It is submitted that the learned Appellate Court has failed to consider the defence taken by the petitioner. It is submitted that the learned Appellate Court did not appreciate the evidence of the complainant properly and as such, the judgment of conviction and order of sentenced passed by the learned Trial Court and the judgment passed by the learned

Appellate Court are fit to be set aside and the Criminal Revision Application may be allowed.

5. On the other hand, learned counsel for the State has opposed the prayer and has submitted that the judgments and order passed by the learned Courts below are fit and proper and no interference is required from this Court. It is submitted that the petitioner has issued the cheque and which has been marked as Ext-3 and as such, both the learned Court below have rightly convicted the petitioner for the offence under Section 138 of the N. I. Act and as such, this Criminal Revision Application may be dismissed.

6. Learned counsel for the opposite party no. 2, after adopting the submission of the learned counsel for the State, has further submitted that the petitioner has violated the mandate of the provisions of Section 138 of the N. I. Act. It is submitted that the judgments and order passed by the learned Courts below are fit and proper and no interference is required by this Court. It is submitted that cheque of Rs. 3,00,000/- was handed over by the petitioner to the O. P. No. 2 on 25.11.2013, but it was dishonoured due to insufficient fund and the cheque has been marked as Ext.-3, which contains the signature of the petitioner. It is submitted that the Ext.-2 and Ext.-2/I and Ext.-3 and Ext.-4 fully support the case of the petitioner. It is submitted that Ext.-2 is Legal Notice and Ext. 2/1 is the Registry receipt and Ext.-2 is the Legal Notice dated 06.12.2013 which shows about insufficient fund of the Bank Account of the accused petitioner. It is submitted that Ext.-3 is the cheque in question. It is submitted that C.W.-1 is the complainant himself and he has fully supported his case. It is submitted that the learned Court below has considered all the material available on the records of this case. It is submitted that the petitioner has committed offence under Section 138 of the N. I. Act and as such,

the judgment of conviction and order of sentence passed by the learned Trial Court and the judgment passed by the learned Appellate Court are fit and proper and the Criminal Revision Application may be dismissed.

7. Perused the Lower Court Records and considered the submission of both the sides.

8. It transpires that opposite party no. 2-complainant had filed Complaint Case No. 329 of 2013 on 17.12.2013 for dishonor of cheque dated 25.11.2013 marked as Ext.-3 and which is said to be handed over by the petitioner to the O. P. No. 2 and for which legal notice was sent on 06.12.2013.

9. The complainant -O. P. No. 2 in support of his case has got examined himself as C.W.-1 namely Sandhu Sao.

10. The complainant -O. P. No. 2 in support of his case has got marked the following documents as Exhibits:-

(i) Ext.-1 is the complaint petition and signature of complainant on the complaint petition

(ii) Ext. -2 is the legal notice.

(iii) Ext. -2/1 is the registry receipt and his signature on register receipt and the register receipt.

(iv) Ext. -3 is the cheque containing the signature of the petitioner- Sandeep Kumar.

(v) Ext. -4 is the Bank's Memo containing the signature of Chandwa Branch Manager, SBI.

11. Thereafter the petitioner was examined under Section 313 of the Cr. P. C. on 31.03.2015.

12. Thereafter the learned Court below has convicted the petitioner and which has been affirmed by the learned Appellate Court.

13. So far as the oral evidence is concerned, C.W.-I is Sandhu Sao i.e. complainant and during his examination in-chief filed on

affidavit, he has stated that he has paid Rs. 3,00,000/- in cash in presence of the witness Krishan Gopal to the accused-petitioner- Sandeep Prasad on 25.11.2013 in his house for purchasing a piece of land and who had handed over him a Cheque bearing Cheque No. 029539 of Rs. 3,00,000/- and when the said cheque was presented in the Bank, then it was dishonored due to insufficient fund in the Bank Account of the petitioner. He has proved the complaint petition and signature on the complaint petition marked as Ext.-1. He has also proved his signature on the legal notice marked as Ext.-2. He has also proved the signature of the petitioner- Sandeep Kumar and his signature on cheque marked as Ext.-3 and he has also proved the Bank Memo having signature of Branch Manager, SBI, Chandwa marked as Ext. -4. He has also proved the Registry receipt and his signature on registry receipt and the registry receipt is marked as Ext.-2/1 respectively.

14. During cross-examination he has stated that he is plying two Trucks. He further stated that prior to 25.11.2013, there was no concern with regard to money with Sandeep Prasad i.e. the present petitioner. He also stated that the petitioner used to take the vehicle of the complainant in rent. He further stated that he had paid money to the petitioner-Sandeep Prasad by taking loan from Sushil Agrawal and he got money paid to the petitioner-Sandeep Prasad in the house of Sushil Agrawal on 25.11.2013 and he was Guarantor for giving loan to the petitioner. He also admitted that in the capacity of guarantor, he had given this cheque of Rs. 3,00,000/- to Sushil (i.e. Sushil Agrawal) and he got the amount of cheque paid to Sushil two months earlier. He also stated that one Krishna Gopal was the witness at the time of hand over money to the petitioner. He denied for running a business of interest. He also stated that prior to the occurrence, there was money transaction with the accused. He also admitted at para-15 that the petitioner

used to do the work of coal from his vehicle and there was monetary transaction with regard to his business. He further stated that on 17.02.2021, the petitioner has taken Rs. 3,00,000/- from him without interest and for which he has issued a cheque dated 25.11.2013. He had denied the suggestion for getting five Blank Cheque dated 17.01.2010 as security has been taken at the time of giving the amount. He has also stated that he had not encashed any cheque. However, he has admitted at para-19 that he has encashed one cheque of the petitioner-Sandeep Prasad five to six years earlier, but that cheque was of Rs. 1,000/-. He had denied the suggestion that petitioner had paid Rs. 5,000/- as interest from the year 2010.

15. Thus, from scrutinizing the evidence of C.W.-I, Sandhu Sao i.e. complainant, it would appear that he had paid of Rs. 3,00,000/- to the petitioner in the house of Sushil Agrawal, which was paid to the petitioner and the complainant was the Guarantor. He has also admitted that the petitioner was earlier working with him and was doing work of coal from his vehicle. It further reveals that five cheques were taken by the complainant from the accused- petitioner by way of security.

16. From perusal of the legal notice marked as Ext.-2, it would appear that the complainant has sent legal notice to the petitioner because the cheque given by the petitioner on 25.11.2013 was returned due to insufficient of fund and it was stated that he has paid Rs. 3,00,000/- in his house in the presence of one witness Krishana Gopal to the petitioner. However, the name of Sushil Agrawal has not been mentioned in the legal notice. It further transpires that even in the complaint petition, it has not been disclosed that the complainant had obtained Rs. 3,00,000/- from one Sushil Agrawal. Ext.-3 is the original Cheque dated 25.11.2013. Ext.-4 is the memo dated 26.11.2013 issued by

the Branch Manager showing return of cheque due to "fund insufficient".

17. It further transpires that the complainant-O. P. No. 2 has not examined Krishna Gopal as witness as he was said to be present at the time of giving the amount of Rs. 3,00,000/- as loan to the petitioner.

18. It further transpires that even the complainant had not examined even one Sushil Agrawal and from whom the complainant-opposite party no. 2 is said to have taken Rs. 3,00,000/- in his house and which was handed over to the petitioner and the complainant is said to be his Guarantor.

19. Thus, the stand of the complainant clearly shows that whatever amount in question, if any, it was paid by one Sushil Agrawal, but not by the complainant-Sandhu Sao.

Therefore, non-examination of Shusil Agrawal and Krishna Gopal, who are said to the witness at the time of giving the cash amount of Rs. 3,00,000/- to the petitioner is fatal to the case of the complainant.

20. It further transpires that evidence of the complainant have been prepared on affidavit in the printed format and the learned Court below has marked Ext.-1, Ext.-2, Ext.-3 and Ext.-4 and also Ext.-2/1 respectively by pen.

21. It is further evident from cross-examination of the complainant- O. P. No. 2 that the petitioner was known to him and there was previous monetary transaction.

22. It further transpires that the petitioner was examined under Section 313 of the Cr. P. C. on 31.03.2015 and he has taken his defence by stating that he had given a Blank Cheque by way of security to the complainant. He had also stated that he had taken Rs. 2,00,000/- and he had returned Rs. 1,05,000/- to the complainant, when the learned Court below had asked him the

question as to whether he had taken Rs. 3,00,000/- as loan from the complainant Sandhu Sao on 25.11.2013 for purchase of land and for which he had issued a Cheque No. 029539 dated 25.11.2013.

23. Thus, from defence of the petitioner, it would appear that although the petitioner had taken Rs. 2,00,000/- from the complainant- O. P. No. 2, but he had returned Rs. 1,05,000/- by him. The petitioner has taken the defence while examining under Section 313 of the Cr. P. C. that the said cheque dated 25.11.2013 was filled by the complainant-Sandhu Sao and he has admitted to have received the notice.

24. Thus, from the statement of the petitioner recorded under Section 313 of the Cr. P. C. by the learned Court below, it would appear that on the one hand, the petitioner has himself admitted to have taken Rs. 2,00,000/- from the complainant-opposite party no. 2, but he has claimed to have returned Rs. 1,05,000/- to the complainant, but no such paper has been produced during his defence by the petitioner before the learned Court below, even mode of payment has not been established. It transpires that learned Court below has mainly convicted the petitioner under Section 138 of the N.I. Act on the basis of the evidence of the complainant i.e. C.W.-1 Sandhu Sao and by placing reliance upon Ext.-2 and Ext.-3 and Ext.-4 respectively, although, the learned Court below had noticed that there was monetary transaction between the parties prior to the institution of this case.

25. It transpires that the learned Appellate Court has affirmed the judgment of conviction and order of sentence passed by the learned Trial Court by endorsing the findings of the learned Court below.

26. This is one of those case in which, the petitioner had not contested the case properly and has not taken the defence properly, save and except the fact and statement mentioned in his statement recorded under Section 313 of the Cr. P. C. before the learned Court below.

27. It transpires that in view of own statement of the accused- petitioner before the learned Court below that he had handed over the blank cheque to the complainant with signature, which was filled by the complainant on the other hand and on the other hand, he had himself admitted to have taken Rs. 2,00,000/-, but claimed to have paid cheque of Rs. 1,05,000/-, but there is neither any documentary evidence nor oral evidence has been led on the part of the accused-petitioner.

28. Therefore, considering a long protracted trial and on the facts and in the circumstances of the case, the sentence of the petitioner can be modified.

29. Under the circumstances, the judgement of conviction dated 28.08.2015, which was passed by Sri Sandeep Nishit Bara, Judicial Magistrate, 1st Class, Latehar in connection with Complaint Case No. 329 of 2013 and affirmed by the learned Principal Sessions Judge, Latehar in Criminal Appeal No. 10 of 2016 for committing offence under Section 138 of the N. I. Act, is upheld.

30. However, so far as the sentence imposed upon the petitioner is concerned, the same can be reduced as the petitioner- Sandeep Prasad has remained in custody from 10.02.2017 to 07.04.2017 i.e. for around two (2) months and due to long protracted trial.

31. Thus, the period undergone by the petitioner-Sandeep Prasad i.e. from 10.02.2017 to 07.04.2017 shall be the period of

sentence and sentence passed by the learned Court below stands modified accordingly and further the petitioner is not required to pay any compensation amount to the complainant.

32. Thus, this Criminal Revision No. 166 of 2017 is dismissed with the modification with the sentencing part as mentioned above.

(Sanjay Prasad, J.) Kamlesh/