S.M. Sinha vs The State Of Madhya Pradesh
2024 Latest Caselaw 48 MP

Madhya Pradesh High Court

S.M. Sinha vs The State Of Madhya Pradesh on 2 January, 2024

Author: Anuradha Shukla

Bench: Anuradha Shukla

                                                                 1
                              IN THE HIGH COURT OF MADHYA PRADESH
                                          AT JABALPUR
                                                    BEFORE
                                     HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                                                 ON THE 2 nd OF JANUARY, 2024
                                            CRIMINAL REVISION No. 883 of 2017

                         BETWEEN:-
                         S.M. SINHA S/O LATE R.M. SINHA, AGED ABOUT 68
                         YEAR S , NEAR RAAVAN PARK, AZAD NAGAR, P.S.
                         RANJHI, DISTRICT JABALPUR (M.P.)

                                                                                                     .....PETITIONER
                         (BY SHRI RAKESH PANDEY - ADVOCATE - ABSENT )

                         AND
                         1.    THE STATE OF MADHYA PRADESH THROUGH P.S.
                               RANJHI JABALPUR (M.P.)

                         2.    TULSIRAM JHARIA S/O GOKUL PRASAD JHARIA,
                               R / O 938, PANCHA NAGAR, MANEGAON, P.S.
                               RANJHI, DISTRICT JABALPUR (M.P.)

                                                                                                 .....RESPONDENTS
                         (SHRI  PRASANNJEET CHATTERJEE - PANEL LAWYER FOR
                         RESPONDENT NO.1/STATE AND SHRI GHANSHYAM BURMAN -
                         ADVOCATE FOR RESPONDENT NO.2)

                               Reserved on                        : 21.12.2023

                               Pronouncement on                   : 02.01.2024
                               -----------------------------------------------------------------------------
                               This revision having been heard and served for order, coming on for
                         pronouncement this day, the court passed the following:
                                                                   ORDER

This criminal revision has been preferred challenging the judgment dated 08.07.2015 passed by IXth Addl. Sessions Judge Jabalpur in Cr.A. No.211/2015 upholding the judgment dated 05.12.2013 passed by Judicial

Magistrate First Class, Jabalpur in Compl. Case No.9253/2010, whereby the applicant was convicted for the offence of Section 138 of Negotiable Instrument Act and sentenced to undergo R.I. for 1 year and to pay compensation amount of Rs.7 Lac with interest @ 9% per annum with a default clause that he shall undergo S.I. for 3 months in case of non-payment of compensation amount.

2. Brief facts of the complaint case are that complainant was working in GIF Jabalpur and had retired in the year 2009. On retirement, he received retirement funds, but Rs.5,50,000/- were requested by applicant as loan from the complainant, who is arrayed as respondent no.2 in this revision petition.

Accepting the request, the respondent/complainant advanced an amount of Rs.5,50,000/- to the applicant/accused against which only Rs.40,000/- were repaid by him and for rest of the amount of Rs.5,10,000/- he issued three cheques in favour of respondent/complainant. All the three cheques were submitted before the bank for encashment, but they all were dishonored. Respondent/complainant issued legal notice of dishonor of cheques to the applicant, but he failed to make payment, therefore, a complaint was filed by the respondent/complainant. The particulars of offence were prepared and read- over to the applicant. He denied the accusation and requested for trial, in which he was held guilty and sentenced as aforesaid and the appeal preferred by applicant was also dismissed.

3. In this revision petition, applicant has taken the grounds that both the Courts below have gravely erred in appreciation of evidence. They failed to properly construe the facts and jumped to the wrong conclusion that was not warranted from the record. It was ignored that Rs.40,000/- was refunded by the applicant/accused which was the total loan amount taken by him from

respondent no.2. The cheques which were given as security were misused by respondent no.2. The three cheques were of different dates and this fact itself was sufficient to presume that the cheques were given as a measure of security. The respondent/complainant failed to prove his income and his financial capability to advance a loan of Rs.5,50,000/-. There was no legally enforceable debt or liability established against the applicant/accused, therefore, the judgments of Courts below are perverse on facts and are contrary to law. It is, therefore, prayed that the judgments passed by the Courts below be set aside and the applicant be acquitted.

4. Respondent no.2/complainant has opposed the present revision claiming that no interference is warranted in this revision as the criminal liability of applicant was found established by both the Courts below.

5. The case when taken up for final hearing was heard only on behalf of respondent side, as the applicant failed to appear and argue this revision petition.

6. The record of trial Court reveals that the complaint filed before that trial Court specifically mentions that upon retirement the complainant had received retiremental benefits, out of which he advanced Rs.5,50,000/- as loan to the applicant/accused on his request in the month of February, 2009 and against this loan applicant paid only Rs.40,000/- in the month of January, 2010 and for

the balance amount of Rs.5,10,000/- he gave three cheques to the respondent/complainant and these cheques have been marked as Ex.P1, P3 and P5 during the testimony of complainant as PW1. Ex.P2, P4 and P6 are respectively the dishonour memos of these cheques and the reason mentioned on these memos is the same, that is the insufficiency of funds in the bank

account of drawer. Applicant/accused has made no claim that he had sufficient balance in his bank account and the bank note about dishonour of these cheques is incorrect.

7. The fact that all these three cheques namely Ex.P1, P3 and P5 were drawn by the applicant/accused in favour of complainant though denied during the accused examination under Section 313 Cr.P.C., but in his explanation applicant/ accused has claimed that three blank cheques were received from him by the respondent complainant against the loan of Rs.40,000/- which had been taken from the respondent, which implies that this fact has been admitted by the applicant/accused that he had given signed cheques to the respondent and his allegation is rested on limited point that the amount was not disclosed by him in those cheques.

8. This fact has been admitted by the applicant/accused during his cross- examination when he appeared as DW-1 that he was working as a contractor and for filing tender he needed money, for which he took loan from the respondent/complainant. This fact reveals that applicant/accused was in the business of contract-ship and was not ignorant of the practices prevalent in business. Despite holding this acumenship, he is claiming that he issued blank signed cheques in favour of respondent/complainant and even after payment of loan amount he did not receive those cheques back. It is being the defence of applicant that he took the loan of Rs.40,000/- and refunded back that amount to the respondent and his claim is that the three questioned cheques were issued by him as a security for that loan amount. Indisputably, those three cheques would not have been issued after the repayment of loan amount as there would not have been any occasion to give security for repayment of loan amount. In this factual preposition it was for the applicant/accused to prove when and how

he made the repayment of Rs.40,000/- to the respondent/complainant. His testimony reveals that the loan amount of Rs.40,000/- was repaid in the month of February, 2010 and if that defence is accepted then it remains to be explained why applicant/accused issued cheques in favour of respondent/complainant in the month of March, 2010.

9. Applicant is claiming that he repaid the amount in February 2010 and respondent/complainant did not return his signed cheques despite his demand, but evidently no complaint or FIR was lodged by applicant against this conduct of respondent. It is also an admitted fact that despite receipt of legal notice of dishonour of cheques in the month of April, 2010 the applicant neither replied it nor gave a counter notice to the respondent/complainant for return of blank cheques.

10. It has been observed by the Apex Court in the case of Rangappa vs. Sri Mohan (2010 11 SCC 441) that the presumption under Section 139 of Negotiable Instrument Act shifts a reverse onus on the drawer of cheque. It has been observed that no doubt the nature of presumption is rebuttable, but it includes a presumption about existence of a legally enforceable debt or liability in favour of holder of cheque. As the evidence led by applicant/accused in this case was not sufficient in a nature to raise a probable defence, therefore, the presumption raised in favour of respondent/complainant has become absolute.

11. Having considered the facts of the case and the law applicable to the circumstances of the case, this Court is of the opinion that the Courts below did not commit any error in holding the applicant guilty of offence of Section 138 of Negotiable Instrument Act and considering the amount of the three cheques which has remained unpaid since 2010 this Court is of the opinion that

the amount calculated as compensation also does not deserve any interference.

12. Accordingly, this criminal revision stands dismissed both on the count of conviction and sentence.

13. Applicant is on bail. His bail bonds stand discharged. He be immediately taken into custody and made to suffer the remaining sentence.

14. Let a copy of this order be sent to the court below alongwith records for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE rv