Dilshad Khan vs Shahjad Khan
2023 Latest Caselaw 15020 MP

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                                                      CRA No. 7324/2023



        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
             HON'BLE SHRI JUSTICE VIVEK RUSIA

              ON THE 12th OF SEPTEMBER, 2023

              CRIMINAL APPEAL No. 7324 of 2023

BETWEEN:-
DILSHAD KHAN S/O IQBAAL KHAN, AGED ABOUT 29 YEARS,
OCCUPATION: BUSINESS R/O GRAM DHABLA HARDU TEHSIL
GHATIA DISTT. UJJAIN (MADHYA PRADESH)
                                                   .....APPELLANT
(SHRI ABHISHEK       TUGNAWAT,    LEARNED    COUNSEL     FOR     THE
APPELLANT.)

AND
SHAHJAD KHAN S/O AKBAR KHAN, AGED ABOUT 30 YEARS,
OCCUPATION: BUSINESS R/O E.W.S. 106/306 INDIRA NAGAR AGAR
ROAD UJJAIN (MADHYA PRADESH)
                                                .....RESPONDENTS
(NONE FOR THE RESPONDENT.)



      This appeal coming on for hearing on admission this day, the

court passed the following:

                              ORDER

The appellant/complainant has filed the present appeal against judgment dated 13.3.2023 whereby the complaint filed by him u/s. 138 of the Negotiable Instrument Act ("NI Act" for short) has been dismissed.

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CRA No. 7324/2023

1. Facts of the case, in short, are as under :

According to the complainant, he and the responden are engaged in the business and had good relationship. The respondent took a loan of Rs.2,00,000/- from the complainant and he issued Cheque No. 054123 for the said amount under his own signature. When the said cheque dated 28.8.2018 was presented in the Bank, the same was returned unpaid due to "insufficient funds". Thereafter, the complainant served legal notice dated 13.5.2018 to the respondent and the respondent gave a reply to the same that he borrowed Rs.70,000/- on an interest @ 5% per annum and returned the total amount of Rs.1,56,000/- and by way of security, he gave two blank cheques bearing No. 54123 and 54124 of Axis Bank, Branch Kanthal, Ujjain which were not returned to him. A deed was executed between them and the complainant misused the said cheques by presenting in the Bank and now he is trying to extract illegal money of Rs.2,00,000/- from him. He has also lodged the report on 23.8.2018 at Police Station Jeevajiganj, Ujjain which is registered at Crime No. 329/2018.

Thereafter, the complainant filed a complaint u/s. 138 of the NI Act before the Court of Judicial Magistrate, First Class, Ujjain on 22.10.2018. In support of the complainant examined himself and got exhibited 6 documents i.e. cheque, return memo, notice, postal receipt, acknowledgement and reply vide Exh. P/1 to P/6. He was cross- examined by the respondent and he was also confronted with Exh. D/1 which is a receipt dated 7.7.2018. He admitted his signature from 'A' to 'A' and signature of one the witness from 'B' to 'B'. Thereafter, the respondent examined himself and got exhibited the forms of the

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CRA No. 7324/2023

assessment years 2016-17, 2017-18, 2018-19, 2019-20 and 2020-21 and computation of the total income to establish that loan amount was not given to him. All these documents have been marked as Exh. D/1 to D/5. After appreciating the evidence that came on record, learned Judicial Magistrate First Class has acquitted the respondent basically relying on Article 1 that only an amount of Rs.70,000/- was taken by the respondent as loan which had been returned by him with interest (total amount Rs.1,56,000/-). Hence, the present appeal before this Court.

2. Shri Abhishek Tugnawat, learned counsel appearing for the complainant, submits that the learned trial court has wrongly interpreted Article 1. The complainant has only admitted his signature but denied its contents. He has referred to Para 9 of the cross- examination. The contents of Article 1 was read over to him, which he admitted that his signatures are there but he denied the execution of the said document, therefore, the impugned judgment is liable to be set aside and the respondent is liable to be punished.

After having heard the learned counsel for the complainant I have perused the record of court below.

3. As per Article 1, two cheques bearing No. 054123 and 054124 are said to have been given to the complainant by way of security at the time of taking loan of Rs.70,000/-. It also reveals that the complainant has received amount of Rs.1,56,000/- including interest. Although this document is a photocopy and the original is with the complainant, but he has admitted his signatures from 'A' to 'A'. The cheque which has been presented by the complainant is bearing No.054123 and which is

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CRA No. 7324/2023

mentioned in Article 1. The respondent from begining came up with the defence that he had already returned the amount of Rs.70,000/- with interest and the two cheques were given to the complainant by way of security which he did not return to him and for which he has lodged the police report. If the complainant was disputing the execution and contents of Article 1, then he ought to have called the witnesses of Article 1 before the Court. The defence taken by the respondent was known to the complainant from reply to the legal notice sent by him. Even in the income-tax return and computation, there is no such disclosure of amount of loan of Rs.2,00,000/- given to the respondent. The complainant is a businessman and his income-tax returns were filed by his Chartered Accountant, therefore, he is supposed to disclose the transaction of Rs.2,00,000/- in the income-tax return. In view of the above, I find no illegality in the findings recorded by the learned trial Court. No interference is called for.

Accordingly, this appeal is dismissed.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2023.09.14 15:16:34 +05'30'