Madhya Pradesh High Court
Tehsildar Yadav vs Sachin Chaudhari on 15 March, 2022
Author: Deepak Kumar Agarwal
1
The High Court Of Madhya Pradesh
CRR No. 445 of 2022
(TEHSILDAR YADAV Vs. SACHIN CHAUDHARI)
Gwalior, Dated:15.03.2022
Shri J.P. Kushwah, learned counsel for the petitioner.
None for the respondent.
This Criminal Revision has been filed by the petitioner
aggrieved by judgment passed by 9th Additional Sessions Judge,
Gwalior in Criminal Appeal No.311/2019 arising out of judgment
dated 27.09.2019 passed by JMFC, Gwalior, in Criminal Case
No.524/2017(NI Act) by which on 11.01.2022, appellate Court
confirmed the conviction and sentence passed by the trial Court.
In brief facts of the case for the disposal of this revision are that
petitioner and respondent were friends. Petitioner purchased 1/3 rd of
the ancestral house of respondent situated at Ashok Nagar, Itawa, in
the name of his daughter on 28.07.2016. Registered sale deed was
executed in consideration of Rs.13,90,000/-, out of which
consideration amount, petitioner/accused gave a cheque amounting to
Rs.2,90,000/- bearing Cheque No.467136 dated 06.12.2016 and
assured that if respondent present the same cheque in bank that will
be honoured. When respondent presented the cheque in his bank, he
got an information through bank that the petitioner has stopped the
payment. Then he orally informed the petitioner then, he gave
registered notice on 29.12.2016 for the recovery of amount
Rs.2,90,000/-. Despite notice, petitioner did not hear to his request.
Thereafter, he filed a complaint under Section 138 of Negotiable
Instruments Act. Petitioner appeared before the Court and denied
charges levelled against him. After trial, learned Magistrate found the
petitioner guilty of offence under Section 138 of Negotiable
Instruments Act and sentenced him six months and ordered that
petitioner shall pay respondent Rs.3,74,723/- inclusive of original
amount within one month otherwise, he will serve three months
Simple imprisonment. Against this conviction and sentence petitioner
filed an appeal before Court of session. Learned 9th Additional
Sessions Judge by judgment dated 11.01.2022 has partly allowed the
appeal and in lieu of six months sentence by condoning the act of the
petitioner, he has directed that petitioner to deposit Rs.374,723/-
within 30 days in trial Court otherwise he has to undergo three
months imprisonment.
Petitioner as per the order of appellate Court by Annexure A-8
and Annexure A-9 deposited the compensation amount before trial
Court and filed this revision on the ground that present facts and
circumstances of this case does not fall within the category of offence
under Sections 138 of Negotiable Instruments Act. Despite this trial
Court as well as appellate Court found him guilty and convicted.
Petitioner has not disputed this fact that he has not purchased
1/3rd of the house of respondent in the name of his daughter for the
consideration of Rs.13,90,000/- and out of which, he had given
Rs.2,90,000/- by cheque No. 467136 on 06.12.2016 which was
dishonoured in non-payment.
Section 138 of the Negotiable Instruments Act is reproduced as
below:-
"138 Dishonour of cheque for insufficiency, etc., of funds in
the account. --Where any cheque drawn by a person on an
account maintained by him with a banker for payment of any
amount of money to another person from out of that account for
the discharge, in whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the amount of
money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with that bank,
such person shall be deemed to have committed an offence and
shall, without prejudice to any other provisions of this Act, be
punished with imprisonment for [a term which may be extended
to two years], or with fine which may extend to twice the amount
of the cheque, or with both:
Provided that nothing contained in this section shall
apply unless-
(a) the cheque has been presented to the bank within a
period of six months from the date on which it is drawn or
within the period of its validity, which ever is earlier;
(b) the payee or the holder in due course of the cheque, as
the case may be, makes a demand for the payment of the
said amount of money by giving a notice in writing, to the
drawer of the cheque, (within thirty days) of the receipt of
information by him from the bank regarding the return of
the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment
of the said amount of money to the payee or as the case may
be, to the holder in due course of the cheque, within fifteen
days of the receipt of the said notice.
Explanation-- For the purposes of this section "debt or other
liability" means a legally enforceable debt or other
liability]"
On going through the provision of Section 138 of Negotiable
Instruments Act, it is clear that petitioner was owing debt liability
towards respondent because he has not paid full consideration of the
purchased house to the respondent. He paid part consideration by
way of cheque No. 467136 amounting to Rs.2,90,000/-. The Apex
Court in the case of Duli Chand Vs. Delhi Administration as
reported in (1975) 4 SCC 649 has held that, the jurisdiction of the
High Court in a criminal revision application is severely restricted and
it cannot embark upon a re appreciation of the evidence. The said
judgment has been relied by the Apex Court in the case of State of
Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and
Others as reported in (2004) 7 SCC 659.
In these situation, this Court is of the view that Court below
have not committed any illegality. Hence, this revision is hereby
dismissed.
(Deepak Kumar Agarwal)
mani Judge
SUBASRI MANI
2022.03.16
18:03:47
-07'00'
