Jharkhand High Court
Raj Kumar Sahu Aged About 38 Years Son Of ... vs The State Of Jharkhand on 3 May, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 425 of 2019
Raj Kumar Sahu aged about 38 years son of Sri Lulu Sahu, resident of
village Palkot, P.O. and P.S. Palkot, District- Gumla
... ... Petitioner
Versus
1. The State of Jharkhand
2. Santosh Kumar Keshri son of Sri Arbind Keshri, resident of
Barjrang Trader, Bank of India (Ground floor of Bank Building),
P.O. and P.S. Palkot, District - Gumla
... ... Opposite Parties
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Arun Kumar, Advocate
For the Opp. State : Mr. Anup Pawan Topno, APP
For the Opp. Party No. 2 : Mr. Chandan Kumar, Advocate
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08/03.05.2024 Heard the learned counsel for the parties.
On the maintainability of the present criminal revision petition
2. The learned counsel for the opposite party no. 2 has raised a
preliminary issue challenging the maintainability of the present
revision application. He submits that the judgment of acquittal was
passed by the learned trial Court and therefore, the petitioner ought to
have filed a petition under section 378(4) of the Code of Criminal
Procedure directly to the High Court. The petitioner could not have
filed appeal under section 372 (proviso) before the learned Appellate
Court and therefore, the appeal itself was wrongly entertained and the
appellate order is under challenge before this court. He submits that as
the appeal was not maintainable, therefore the present revision
application is not maintainable.
3. Learned counsel appearing on behalf of the petitioner has
submitted that the petitioner being the victim and also the complainant
has rightly exercised provisio under section 372 of the Code of
Criminal Procedure for filing appeal before the learned appellate court
before whom the appeal against conviction would have been filed if
the opposite party no.2 was convicted in the trial . He submits that
when the appeal has been dismissed by the learned Appellate Court
and the judgment of acquittal has been upheld, the petitioner has no
remedy and therefore, the present criminal revision petition is
maintainable.
4. After hearing the learned counsel for the parties and
considering the facts and circumstances of this case, this Court finds
that the judgment of acquittal in complaint petition under section 138
of Negotiable Instruments Act was passed and the petitioner being the
beneficiary of the cheque is also the victim with regard to bouncing of
cheque.
5. This Court is of the considered view that the appeal was rightly
filed by the petitioner before the learned appellate court, before whom
the appeal on conviction would have been filed.
6. In this regard a reference is being made to the judgment passed
by the Hon'ble Supreme Court in the case of "Joseph Stephen and
others Vs. Santhanasamy and others" reported in (2022) 13 SCC
115 wherein it has been held that in any case instituted upon
complaint, the complainant (other than the victim) can prefer an
appeal against the order of acquittal as provided under sub-section (4)
of section 378 of Code of Criminal Procedure subject to grant of
Special Leave to Appeal by the High Court. The Hon'ble Supreme
Court has considered that after amendment in Section 372 in the year
2009 and insertion of proviso to Section 372 of Code of Criminal
Procedure, a victim has statutory right of appeal against the order of
acquittal. In the present case complainant is also the victim and has a
right of appeal under proviso to section 372 of the Code of Criminal
Procedure.
7. In such circumstances, this Court is of the view that the
petitioner being the victim has rightly invoked Section 372 of Code of
Criminal Procedure to file an appeal before the learned Appellate
Court. The appeal was rightly entertained and now against the order
of appellate court confirming the acquittal of the opposite party no.2 ,
the petitioner does not have any other remedy and therefore, the
present revision petition is maintainable.
On the merits of the case
8. This criminal revision petition has been filed against the
judgment dated 06.02.2019 passed by learned Sessions Judge, Gumla
in Criminal Appeal No. 4 of 2018, whereby the learned Appellate
Court has been pleased to dismiss the appeal and confirmed the
judgment of acquittal dated 12.12.2017 passed by learned Judicial
Magistrate, 1st Class, Gumla in Complaint Case No. 211 of 2015,
( T.R. No. 311 of 2017). The learned Trial Court has acquitted the
Opposite Party No. 2 from the charges under Section 138 of the
Negotiable Instruments Act.
9. Learned counsel for the petitioner, while challenging both the
judgments of acquittal, has submitted that it is not in dispute that a
cheque amounting to Rupees One lakh was presented and had
bounced. Under such circumstances, there was legal presumption in
favour of the petitioner, but this aspect of the matter has not been
properly considered by both the learned Courts. He submits that
Exhibit 5 and 5/ 1 are the cheque return memo.
10. The learned counsel for the petitioner further submits that there
was sufficient material to draw presumption regarding dishonour of
cheque in terms of section 146 of the Negotiable Instruments Act and
the same having not been disapproved by the opposite party no. 2,
therefore, a further legal presumption was to be drawn regarding
existence of legally payable debt and this aspect of the matter has not
been properly considered. The learned counsel has also submitted that
a legal notice was issued regarding bouncing of cheque, but the
opposite party no.2 did not give any reply to the same.
11. The learned counsel appearing on behalf of the opposite party
no.2, on the other hand, has submitted that the opposite party no.2 had
taken a loan of Rs. 1 lakh and on the date the cheque was presented,
an amount of Rs. 1 lakh was deposited in the bank account. The
deposit slip was exhibited before the learned Trial Court and
accordingly, the opposite party no.2 had paid the cheque amount much
before filing of the case.
12. The learned counsel has also submitted that there is no evidence
regarding receipt of legal notice by the opposite party no.2. The legal
notice was sent on 18.08.2015 through registered cover as per the
materials on record the complaint was filed on 10.09.2015. He submits
that since there is no evidence regarding receipt of legal notice, there
was no occasion for the opposite party no. 2 to respond to the legal
notice and the complaint itself was pre-matured.
Findings of this Court
13. After hearing the learned counsel for the parties and
considering the materials on record, this Court finds that as per the
prosecution case, the petitioner and opposite party no. 2 had friendly
relationship. The opposite party no. 2 had taken a loan of Rs. 2 lakhs
from the complainant and assured to return the same within a period
of 6 months. Thereafter, the accused did not return the amount and
issued two cheques of Rs. 1 lakh each, out of which, one cheque was
bearing no. 001536 dated 16.06.2015, and the complainant did not
remember the number and date of the other cheque. On 21.07.2015,
the cheque no. 001536 was deposited in the account, but the same
bounced due to insufficient fund. The complainant informed the
accused and the accused told the complainant to deposit the cheque
after 15-20 days. The complainant returned back the other cheque and
he was told by the accused that he will return Rs. 1 lakh in cash. On
17.08.2015, the complainant again deposited the 1st cheque, and it was
dishonoured due to insufficient fund. The complainant sent a legal
notice and demanded the cheque amount within 15 days. It is the case
of the complainant that the deposit of Rs.1 lakh by the accused was
against the 2nd cheque and not against the cheque which had bounced.
It was alleged that after receiving the legal notice, the accused did not
pay the cheque amount and thereafter the complaint case was filed.
14. Altogether three witnesses were examined and the documentary
evidences were produced. Exhibit-1 is the legal notice, Exhibit-2 is the
cheque bearing no. 001536, Exhibit-3 is the postal receipt, Exhibit- 4
and 4/1 are the cheque deposit receipts and Exhibit-5 and 5/ 1 are the
return memos. The defence did not produce any oral or documentary
evidence in support of his claim.
15. The learned Trial Court, after considering the materials on
record, has specifically considered the plea of the defence that he had
taken only Rupees One Lakh which was deposited in the account of
the complainant, but the complainant did not return back the cheque.
The learned Trial Court also considered the plea of the complainant
that the accused had taken Rs. 2,00,000/- for his business purpose and
assured to return the said amount within six months and after six
months, the accused had issued two cheques of one lakh each, but no
detail of the other cheque which was said to have been returned to the
accused was available.
16. The learned Trial Court has further recorded that upon going
through the legal notice, it was found that the complainant had stated
that in the month of December 2015, accused demanded Rs. 1 lakh
from the complainant for his personal work, and he assured that the
same will be returned within six months. After passing six months on
16.06.2015, accused issued Cheque No. 001536, which was deposited
on 21.07.2015 and subsequently on 17.08.2015. The learned Trial
Court recorded that firstly, the complainant had not produced any
documentary evidence as agreement regarding two lakhs rupees,
secondly, in his legal notice, he had clearly stated that the accused had
demanded only Rs. 1 lakh and issued one cheque, but in the complaint
petition, the complainant had submitted that the accused demanded
Rs. 2 lakhs and issued two cheques and in the complaint case, the
complainant did not disclose the other cheque number. After
recording the aforesaid, the learned Court recorded that the claim of
the complainant was doubtful. The learned trial Court has recorded the
following finding: -
"16. After hearing both sides, I perused the record, I find that in the
present case the defence plea is that he has taken only one lakhs rupees,
which deposited in account of complainant but complainant did not
return back the cheque.
On the other hand complainant case is that accused demanded two
lakh rupees for his business purpose and assured to return the said
amount within 6 months. After passing six months he issued two
cheques of rupees one one lakh. Out of which the cheque no. 001536
and number of other is not remember the complainant. Complainant
deposited the said cheque in his account, which was dishonoured on
dated 21-07-2015. Complainant has produced three witnesses in
support of his claim and documentary evidence as Ext-1 is signature of
advocate on Legal Notice. Ext-2 is cheque no. 001536, Ext-3 is postal
receipt, Ext-4 and 4/1 and 4/1 are cheque deposit receipt and Ext-5 and
5/1 are return memo. Complainant has submitted that after dishonour
of cheque due to insufficient fund on dated 18-08-2015 he issued a
Legal Notice. When I go through this legal notice I find that in legal
notice complainant has stated that in month of December, 2014 accused
demanded rupees one lakh from complainant for his personal work and
he assured, the same will be return within six months, after passing six
months on dated 16-06-2015 accused issued cheque no. 001536 which
was deposited on dated 17-08-2015. Perusal of the record, I find, that
firstly complainant has not produced any documentary evidence as
agreement regarding two lakhs rupees. Secondly, in his legal notice he
has clearly stated that accused has demanded only one lakh rupees and
he issued only one cheque no. 001536 of rupees one lakh but in
complaint petition this complainant has submitted that accused
demanded two lakh rupees in entire complaint petition and entire in his
statement he did not tell the number of other cheque, which makes the
claim of complainant doubtful.
Perusal of record I also find, that complainant has demanded through
legal notice only one lakh rupees on dated 18-08-2015, in his complaint
petition at para 9 he has submitted that on dated 18-08-2015 accused
deposited one lakh rupees in his account. In his statement in para 29
when accused deposited one lakh rupees on same day he was informed
by Bank. In para 30 in his account one lakh rupees was deposited on
dated 18-08-2015, on same day when he issued legal notice. In para 32
he deposed that he has filed this case only for cheque amount of rupees
one lakh. In para 28 he has deposed that it is correct to say that
accused deposited one lakh rupees in his account which was accepted.
It is pertinent to mention here that through legal notice which was sent
after dishonour of cheque bearing no. 001536 accused demanded one
lakh rupees against the said cheque and on the same day accused
deposited one lakh rupees in complainant's account it will be presumed
that the accused has deposited one lakh rupees against the cheque
amount bearing no. 001536.
17. When I go through the cheque which is Ext-2 I find, that
cheque bearing no. 001536 does not bear any seal (Mohar) of Bank.
Ext-4 and 4/1 deposit receipt also does not bear any seal (Mohar) of
Bank, which creates doubt whether the cheque was deposited in bank or
not?
18. After going through these case law I find that this case law is not
applicable in this case.
19. Above facts and discussion makes clear that complainant has fully
failed to establish his case U/s 138 N.I. Act beyond the shadow of all
reasonable doubts. Hence accused is hereby acquitted from the charge
levelled against him. He is on bail, hence he and his bailors are also
discharged from the liabilities of their respective bail bonds."
17. This Court finds that the learned Trial Court has taken into
consideration that as per the legal notice there was a loan amount of
Rs. 1 lakh only and the same was returned by cheque no. 001536
which is the cheque involved in the present case. It is further not in
dispute that an amount of Rs. 1 lakh was deposited by the accused
opposite party no. 2 in the bank account of the complainant, but the
complainant tried to make out a new case in the complaint petition by
stating that there was a loan amount of Rs. 2 lakhs which was contrary
to the stand taken by the complainant at the time of issuance of legal
notice. In this background, the learned Trial Court has acquitted the
accused person.
18. The learned Appellate Court has also considered the materials
on record and recorded the following findings:-
"4. The court went through the LCR of C 211/2015 and also perused
the exhibits and version of CW-1 to CW-3 examined by the complainant
before learned court. CW-2, Raj Kumar Sahu, who is the complainant
himself is duty bound to support his case and as such he has fully
supported his case orally in his deposition. CW-1 is Surendra Kansari,
who has deposed that in the month of December 2014 the complainant
had paid Rs.2,00,000/- to the accused with an undertaking to return the
same within 6 months. On 16-06-2015 the accused issued two cheques
worth Rs.1 lakh each in favour of the complainant, which were deposited
in Bank but the same has been dishonoured due to insufficient fund. CW-
3 is Balmukund Sahu, whose version is similar to the version of CW-1. A
part from this, the court also went through the cheques bearing no.
001536 dated 16-05-2015 issued by Santosh Kumar Keshri, in favour of
Rajkumar Sahu worth Rs.1 lakh marked as Ext-2, Cheque depositing slip
dated 16-07-2015 is Ext-4. It is very surprising that there is no seal or
signature of Bank or any Bank Authority, which creates a doubt that
whether the cheques has been deposited or not in the bank. Similar to
this Ext-4/1 is also a cheque depositing slip dated 17-08-2015 which is
without seal and signature of the Bank. Undoubtedly, Ext-5 and 5/1 are
return memo of cheque no. 1536 worth Rs. 1 lakh dated 21-07-2015 and
17-08-2015. Ext-1 is the legal notice dated 18-08-2015 which is full of
doubt that in page 2 there is no mention of amount as to what amount is
to be returned by the accused to the complainant and in this way Ext-
1,Ext-2, Ext- 4 and Ext 4/1 are highly doubtful and a finger of doubt is
also raised towards the act of the complainant. As regards Ext- 5 and
5//a are concerned this is the admission of the complainant that Rs. 1
Lakh has already been returned to him by the accused. As regards
another cheque of Rs. 1 lakh is concerned the same has not been
produced before the court. The complainant failed to disclose the number
and date of that cheque which is orally claimed without any legal stand.
The defence of accused that he has taken Rs. 1 lakh only from the
complainant and that has already been returned brings force and his
false implication in this case seems to be satisfactory and convincing to
this court."
19. This Court has carefully gone through the records and finds that
the findings of the learned Trial Court that the complainant had
mentioned a loan amount of only Rupees One Lakh in the legal notice
is correct and as per the legal notice which is Exhibit-1, and the
complainant had made out a new case in the complaint petition by
stating that there was a loan amount of Rs. 2 lakhs. This Court finds
that in such circumstances, the learned Courts have rightly acquitted
the opposite party no. 2. The judgments of acquittal passed by both the
learned Courts do not call for any interference. This court finds that
there are concurrent findings of acquittal of the opposite party no.2
(accused) and there is no illegality or perversity in the impugned
judgements of acquittal.
20. There is no doubt that there is a presumption in favour of the
complainant with regard to legally payable debt when it relates to
bouncing of cheque, but the accused had duly rebutted the same by
demonstrating before the learned Courts that loan amount was only of
Rs. 1 lakh and the same amount was returned in the bank account of
the complainant and therefore, the judgments of acquittal passed by
the learned Trial Court and upheld by the learned Appellate Court do
not call for any interference.
21. This criminal revision petition is accordingly dismissed.
22. Pending interlocutory application, if any, is closed.
23. Let a copy of this order be communicated to the court
concerned through 'FAX'.
(Anubha Rawat Choudhary, J.)
Pankaj
