Khemraj Kishan Nek vs State Of M.P.
2023 Latest Caselaw 9100 MP

                                                          1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT GWALIOR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                               ON THE 19 th OF JUNE, 2023
                                          CRIMINAL REVISION No. 357 of 2010

                          BETWEEN:-
                          KHEMRAJ KISHAN NEK S/O S/O LT.NEKSIYA
                          OCCUPATION: SHOPKEEPER, R/O NEK SOUND, DHOLI
                          BUA KA PUL,LASHKAR, GWALIOR (MADHYA PRADESH)

                                                                                     .....PETITIONER
                          (SHRI MAHAVIR PATHAK, LEARNED COUNSEL FOR THE PETITIONER)

                          AND
                          1.    STATE OF M.P. (MADHYA PRADESH)

                          2.    TULAJI RAO ANGRE S/O S/O SARDAR S.C.AGNGRE
                                , AGED ABOUT 50 YEARS, OCCUPATION: NOT
                                MENTIONED R/O SAMBHA JI BILAS, ANGRE
                                BAJAR LASHKAR DISTRICT GWALIOR (MADHYA
                                PRADESH)

                                                                                   .....RESPONDENTS
                          (SHRI PRAMOD PACHAURI- LEARNED PUBLIC PROSECUTOR FOR THE
                          RESPONDENT NO.1- STATE)

                                Th is revision coming on for hearing this day, th e court passed the

                          following:
                                                           ORDER

The petitioner has preferred this revision under Section 397 read with Section 401 of CrPC challenging the judgment dated 23-04-2010 passed by Ninth Additional Sessions Judge (FTC), Gwalior in Criminal Appeal No.98 of 2010 confirming the judgment dated 09-02-2010 passed by Additional CJM, Gwalior in Criminal Case No.2816 of 2007 whereby the petitioner has been convicted under Section 138 of NI Act and sentenced to three months simple Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/20/2023 11:19:03 AM

imprisonment with a direction to pay compensation to respondent No.2 complainant to the tune of Rs.32,000/- under Section 357(3) of CrPC.

Facts giving rise to present revision in short is that accused- petitioner had given a cheque dated 15-10-2006 bearing no. 302814 of ICICI Bank Gwalior Branch amounting to Rs.28,000/- to the complainant- respondent no.2 for payment of his liability which was dishonoured after submitting the same in the Cooperative Bank, Lashkar, Gwalior due to stop payment in the account of the petitioner accused. Then complainant sent a registered notice dated 15-11- 2006 to the accused, which was received on 29-11-2006. The accused assured that the amount would be paid but the same was not paid. The accused

deliberately stopped the payment of cheque in the account and did not pay amount even after receiving notice of demand. Therefore, a complaint under Section 138 of NI Act was filed. The trial Court after hearing both the parties and going through the materials and documents on record, passed impugned judgment against the petitioner for offence under Section 138 of NI Act. Being aggrieved, the petitioner preferred a criminal appeal before the lower appellate Court and the lower appellate Court vide judgment 23-04-2010 dismissed the same. Hence, this revision.

It is submitted by learned counsel for the petitioner that the trial Court as well as the lower appellate Court have committed grave error in holding the petitioner guilty under Section 138 of NI Act. The respondent no.2 in his complaint has not mentioned anywhere that the obligation to pay rent was due which also shows that respondent no.2 has not stated that the cheque was in relation to payment of obligation. Notice was not given to the petitioner on correct address and even the petitioner accused did not get any publication done in the newspaper. Therefore, it is clear that as per provisions of Section Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/20/2023 11:19:03 AM

27 of Evidence Act, if notice is sent on correct address, then it will be considered as service. Notice Ex.D1 should not be sent to the landlord only and it is clearly written by petitioner in Ex.D1 that he has already vacated the house.

On the other hand, learned counsel for State supported the impugned judgments and prayed for dismissal of this revision.

On perusal of impugned judgments as well as documents available on record, it appears that complainant has been successful in proving ingredients of Section 138 of NI Act that cheque in question Ex.P1 was given by accused to him for acceptance of liability which was deposited by him in the bank. When presented for payment, the bank received it back dishonoued and a notice letter was sent to the petitioner accused regarding demand of bank amount within the stipulated time period by the complainant but the bank amount was not paid by accused within the stipulated time period. Thus, the allegation as per Section 138 of NI Act against the accused is found to be proved beyond reasonable doubt. This Court does not find any illegality in the impugned judgments passed by two Courts below. Revision fails and is hereby dismissed.

(DEEPAK KUMAR AGARWAL) JUDGE MKB

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 6/20/2023 11:19:03 AM