Shailendra vs Lalsingh
2023 Latest Caselaw 17209 MP

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       IN THE HIGH COURT OF MADHYA PRADESH
                                   AT INDORE
                                      BEFORE
                 HON'BLE SHRI JUSTICE ANIL VERMA
                      ON THE 16th OF OCTOBER, 2023
                  CRIMINAL REVISION No. 717 of 2014

BETWEEN:-
LALSINGH S/O BHIMSINGH KATARE,
AGED ABOUT 45 YEARS, R/O: 50, BHOJ
NAGAR, DHAR (MADHYA PRADESH)
                                                                     .....PETITIONER
(BY SHRI AJAY JAIN - ADVOCATE)

AND
SHAILENDRA S/O BHASUDEV DUBEY,
AGED ABOUT 35 YEARS, OCCUPATION:
BUSINESS R/O BADA RAWLA, DHAR
(MADHYA PRADESH)
                                                                   .....RESPONDENT
(BY SHRI P.R. BHATNAGAR - ADVOCATE)
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                  CRIMINAL REVISION No. 1035 of 2014
BETWEEN:-
SHAILENDRA S/O BHASUDEV DUBEY,
AGED ABOUT 38 YEARS, OCCUPATION:
BUSINESS R/O BADA RAWLA, DHAR
(MADHYA PRADESH)
                                                                    ......PETITIONER
(BY SHRI P.R. BHATNAGAR - ADVOCATE)

AND
LALSINGH S/O BHIMSINGH KATARE,
AGED ABOUT 45 YEARS, R/O: 50, BHOJ
NAGAR, DHAR (MADHYA PRADESH)
                                                                   .....RESPONDENT
(BY SHRI AJAY JAIN - ADVOCATE)
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       These criminal revisions coming on for orders this day, the court
passed the following:


                                       ORDER

1. This order shall govern the disposal of CRR No.717 of 2014 and CRR No.1035 of 2014 since both these revision petitions arise out of the common judgment dated 12.5.2014.

2. Criminal revision No.717 of 2014 has been preferred by the petitioner/accused Lalsingh under Section 397 r/w S. 401 of Cr.P.C. being aggrieved by the impugned judgment dated 12.5.2014 passed by the Addl. Sessions Judge, Dhar (M.P.) in Criminal Appeal No.37/2014, whereby the judgment dated 23.1.2014 passed in Criminal Case No.2464/2011 by the JMFC, Dhar has been modified and for the offence under Section 138 of Negotiable Instruments Act, 1881 (for short "NI Act") petitioner/accused Lalsingh has been sentenced to "till the rising of court" and also reduced the compensation amount from Rs.2,50,000/- to Rs.2,10,000/-. In default of payment of compensation amount, accused has been directed to undergo 6 months R.I.

3. Brief facts of the case are that, complainant/respondent Shailendra filed the complaint before the trial Court alleging that petitioner/accused Lalsingh had obtained loan of Rs.2,10,000/- from him for want of necessity. For the repayment of loan amount, the Cheque of Bank of Baroda bearing No.514909 was issued in favour of the respondent, but when he presented it for encashment in his bank, the same got dishonoured for want of insufficient fund. Then the

complainant sent a legal notice through his advocate, but the petitioner/ accused Lalsingh did not return the amount. Thereafter, the complainant filed a complaint before the trial Court under Section 138 of NI Act.

4. The trial court after appreciating the evidence available on record, found the petitioner-Lalsingh guilty for the offence under Section 138 of NI Act and sentenced to 6 months R.I. and also directed to pay compensation of Rs.2,50,000/- to the complainant. Being aggrieved by the impugned judgment passed by the trial Court, petitioner preferred an appeal before the ASJ, Dhar and vide judgment dated 12.5.2014 the judgment passed by the trial Court has been modified as mentioned herein-above. Hence, CRR No.717/2014 has been preferred by the petitioner/accused Lalsingh.

5. Learned counsel for the petitioner submits that the complainant did not know when he gave such a huge amount of Rs.2,10,000/-, it makes his version doubtful. Both the courts below have failed to appreciate the deposition of handwriting expert (DW-1), who has clearly opined that the Cheque in question was not written by the petitioner. Both the courts below have not appreciated the evidence available on record in true perspective and also failed to appreciate that the cheque was not issued for discharge of any legal debt. Hence he prays that the impugned judgment be set aside and the petitioner/accused be acquitted from the offence under Section 138 of NI Act. He has also placed reliance upon the judgment of the Hon'ble Apex Court in the case of K. Subramani Vs. K. Damodara Naidu reported in (2015) 1 SCC 99, in the case of Anss Rajshekar Vs.

Augustus Jeba Ananth reported in 2020(1) MPLJ 300 and the judgment of this Court in the case of Shobha Chouhan Vs. Gopichand Khatri reported in 2017(2) MPLJ 61.

6. Counsel for the respondent/Shailendra opposes the prayer made by the petitioner by submitting that the petitioner has been rightly convicted for the aforesaid offence, but he has not been punished with the adequate sentence.

7. Both the parties heard at length and perused the record.

8. From perusal of the record, it appears that the petitioner Lalsingh before the trial Court in his accused statement under Section 313 of Cr.P.C. categorically admitted that he has signed the cheque bearing No. 514909 dated 7.9.2011. The petitioner has taken defence that he has borrowed only Rs.35,000/- from the complainant and for the security of the said debt he has given signed a blank cheque to the complainant. Petitioner has admitted his signature on the aforesaid cheque. Therefore, burden of proof is shifted upon the petitioner/accused to prove that he has not issued the cheque for any legally enforceable debt in favour of the complainant. Petitioner has taken the plea that he has signed the blank cheque, but he never made any complaint before the police that complainant has fraudulently obtained the blank cheque and misused it.

9. Complainant Shailendra Dubey has categorically stated in his statement that after dishonour of the cheque, he gave a legal notice (Ex.P/4) to the petitioner/accused and its postal receipts are Ex.P/5 & P/ 6 and acknowledgement is Ex.P/7. However, petitioner has denied that

he has not received any such notice, but in his accused statement under Section 313 of Cr.P.C. he vaguely answered to the question No.12 and 13 "I do not know". He specifically not denied the receipt of aforesaid notice (Ex.P/4). Therefore, on the basis of the aforesaid oral and documentary evidence, trial Court has rightly held that despite service of notice (Ex.P/4), petitioner did not gave any reply in its rebuttal. Hence, the adverse influence can be drawn against the petitioner.

10. Although the handwriting expert Ku. Yogita Singh (DW-1) in her deposition stated that Cheque (Ex.P/1) was not found in the handwriting of the petitioner/accused, but the petitioner has admitted his signature on the aforesaid cheque. Other details in the cheque may be written by any other person on the instruction of the petitioner. Therefore, above defence taken by the petitioner cannot be accepted.

11. So far as the petitioner's plea regarding the legally recoverable debt is concerned, petitioner himself admits that he had good family relationship with the complainant Shailendra. Complainant Shailendra in Para-7 of his deposition categorically stated that he has collected the said amount of Rs.2,10,000/- from the agriculture and also from his savings. Petitioner did not examine any witness to contradict the same fact. Therefore, on the basis of the aforesaid evidence, trial Court has rightly held that complainant has sufficient source of income regarding the aforesaid amount and existence of the legally enforceable debt was also proved by the petitioner.

12. From perusal of the aforesaid evidence available on record, this Court is of the considered opinion that both the courts below have

concurrently found that petitioner has committed offence under Section 138 of the NI Act. This court is well aware about the limitation of this Court while exercising the revisional jurisdiction, which does not empower re-appreciation of evidence. Hence, so far as the conviction is concerned, the judgment passed by the learned courts below are maintained.

13. The complainant Shailendra has filed CRR No.1035/2014 for enhancement of the sentence given to the accused Lalsingh, which has been reduced and modified by the first appellate court.

14. From perusal of the judgment of the first appellate court, it appears that the appellate court has given only one reason to reduce the jail sentence from 6 months R.I. to "till rising of the Court" that petitioner/accused Lalsingh is a government teacher and that is a sufficient ground for reducing the aforesaid sentence. Apart from the above, petitioner has now turned to 54 years and he is not having any criminal background and he is facing trial since last 12 years, therefore, this Court is of the considered opinion that there is no need to enhance the jail sentence given to the petitioner/accused Lalsingh.

16. In the result, both the revision petitions are dismissed by upholding the impugned judgment and sentence dated 12.5.2014 passed by the Addl. Sessions Judge, Dhar (M.P.) in Criminal Appeal No.37/2014. The petitioner/accused Lalsingh is directed to deposit the remaining compensation amount as awarded by the first appellate court within one month before the trial Court, otherwise trial Court should proceed against the petitioner Lalsingh and in default of payment of

compensation amount within the stipulated period, the petitioner shall suffer 3 months R.I.

17. Let a copy of this order be sent to the concerned trial Court along with the record for necessary information and action.

18. Signed order be kept in the file of CRR No.717/2014 and a copy thereof be placed in the file of connected CRR No.1035/2014.

C.C. as per rules.

(ANIL VERMA) JUDGE Trilok/-

Digitally signed by TRILOK SINGH SAVNER Date: 2023.10.17 18:43:56 +05'30'