Madhya Pradesh High Court
Smt. Varsha Shrivastava vs Sumer Ahirwar on 4 March, 2024
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 4 th OF MARCH, 2024
CRIMINAL APPEAL No. 9810 of 2019
BETWEEN:-
SMT. VARSHA SHRIVASTAVA W/O SACHIN
SHRIVASTAVA, AGED ABOUT 36 YEARS,
OCCUPATION: HOUSE WORK R/O NEAT H. NO. 519
E, SARVADHARM B SECTOR, KOLAR ROAD
BHOPAL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI BALAJI AKKILWAR -ADVOCATE)
AND
SUMER AHIRWAR S/O MITHOOLAL AHIRWAR,
AGED ABOUT 34 YEARS, R/O H. NO. 156,
CHUNABHATTI, KOLAR ROAD BHOPAL (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI ASHISH TIWARI -ADVOCATE)
This appeal coming on for admission this day, th e court passed
the following:
JUDGMENT
The present appeal has been filed against the judgment of
acquittal dated 11.02.2019 passed by the trial court whereby the
present respondent-accused has been acquitted of the offence under
Section 138 of the Negotiable Instruments Act. In the proceeding
instituted upon a private complaint filed by present appellant-
complainant.
2. The brief facts of the case are that a complaint under
Section 138 of Negotiable Instrument Act was filed by the present
appellant against the present respondent on the allegation that one
cheque dated 05.07.2017 was given by the respondent to the appellant
for an amount of Rs. 150,000/-. The said cheque was presented by the
appellant in his bank on 05.07.2017 which was returned back
dishonored on 07.07.2017 with the remark "funds insufficient". Since
the present respondent failed to pay the amount despite notice, the
complaint was filed.
3 . Learned counsel for the appellant by referring to the
averments made in the complaint has submitted that the respondent had
entered into a contract with appellant for construction of house of the
appellant. Earlier an agreement dated 04.09.2016 was executed
between the parties and work was started by the present respondent.
This agreement is Ex. P/6. It is the case of the appellant that the work
remained incomplete and thereafter, a fresh agreement was executed
between the parties vide Ex.P/8 on 05.02.2017. The learned counsel
for the appellant submits that the first page of this agreement clearly
mentions that the cheque in question is being given to the present
appellant as security it would be adjustable in the payment of work.
4. Learned counsel for the appellant while criticizing the
judgment passed by the trial court has submitted that the trial court in
the impugned judgment has held that since the cheque was given as
security, hence, the offence under Section 138 of Negotiable
Instruments Act is not made out. On this ground alone respondent has
been acquitted of offence under Section 138 of Negotiable Instruments
Act. Learned counsel for the appellant contends that the mere fact that
cheque has been given by way of security is not a sufficient fact for
acquittal of the accused and even if cheque is given as security then
the also the offence under Section 138 of the Negotiable Instruments
Act is made out if the cheque is presented in the bank and gets
dishonoured on account of insufficiency of funds. Learned counsel for
the appellant also relied on the judgment of Bombey High Court in the
case of Balagi Agencies Pvt. Ltd. Vs. Mr. Vilas Bagi and another
2010(1)DCR 443 and in the case of M/s. Sai Auto Agencies Vs.
Sheikh Yusuf Sheikh Umar 2011 (1) DCR 78 . Learned counsel for
the appellant also relied on the judgment of Hon'ble Supreme Court in
the case of Sampelly Satyanarayana Rao Vs. Indian Renewable
Energy Development Agency Limited (2016) 10 SCC 458. Thus, it
is submitted that the order under appeal is vulnerable and deserves to
be converted into conviction with consequential direction to
compensate the present appellant.
5. Learned counsel for the respondent-accused, per contra, has
supported the judgment passed by the trial court and has submitted that
not even the cheque was given by way of security, but the appellant-
complainant failed to establish that any debt or liability had accrued
necessitating presentation of the cheque submitted by way of security
in the bank. Thus, in the absence of debt or liability, the security
cheque could not have been presented into the Bank by the appellant
and thus the judgment of acquittal is fully proper.
6. Heard learned counsel for the parties and perused the record.
7 . The cheque in the present case was undisputedly given by
way of security. In the case of Sampelly Satyanarayana Rao Vs.
Indian Renewable Energy Development Agency Limited (2016) 10
SCC 458, Hon'ble Supreme Court had held as under:-
11. Reference to the facts of the present case clearly
shows that though the word "security" is used in Clause
3.1(iii) of the agreement, the said expression refers to
the cheques being towards repayment of instalments.
The repayment becomes due under the agreement, the
moment the loan is advanced and the instalment falls
due. It is undisputed that the loan was duly disbursed on
28-2-2002 which was prior to the date of the cheques.
Once the loan was disbursed and instalments have
fallen due on the date of the cheque as per the
agreement, dishonour of such cheques would fall under
Section 138 of the Act. The cheques undoubtedly
represent the outstanding liability.
12. The judgment in Indus Airways [Indus Airways (P)
Ltd. v. Magnum Aviation (P) Ltd., (2014) 12 SCC 539
: (2014) 5 SCC (Civ) 138 : (2014) 6 SCC (Cri) 845] is
clearly distinguishable. As already noted, it was held
therein that liability arising out of claim for breach of
contract under Section 138, which arises on account of
dishonour of cheque issued was not by itself on a par
with criminal liability towards discharge of
acknowledged and admitted debt under a loan
transaction. Dishonour of cheque issued for discharge
of later liability is clearly covered by the statute in
question. Admittedly, on the date of the cheque there
was a debt/liability in praesenti in terms of the loan
agreement, as against Indus Airways [Indus Airways
(P) Ltd. v. Magnum Aviation (P) Ltd., (2014) 12 SCC
539 : (2014) 5 SCC (Civ) 138 : (2014) 6 SCC (Cri)
845] where the purchase order had been cancelled and
cheque issued towards advance payment for the
purchase order was dishonoured. In that case, it was
found that the cheque had not been issued for discharge
of liability but as advance for the purchase order which
was cancelled. Keeping in mind this fine but real
distinction, the said judgment cannot be applied to a
case of present nature where the cheque was for
repayment of loan instalment which had fallen due
though such deposit of cheques towards repayment of
instalments was also described as "security" in the loan
agreement. In applying the judgment in Indus
Airways [Indus Airways (P) Ltd. v. Magnum Aviation
(P) Ltd., (2014) 12 SCC 539 : (2014) 5 SCC (Civ) 138
: (2014) 6 SCC (Cri) 845] , one cannot lose sight of the
difference between a transaction of purchase order
which is cancelled and that of a loan transaction where
loan has actually been advanced and its repayment is
due on the date of the cheque.
8. The legal position that emerges from the above is that once
the cheque is given by way of security and liability falls out on the
date of cheque as per the agreement then the dishonour of cheque
would fall under Section 138 of the Act. Thus, in the present case the
appellant was required to establish that the liability to present the
security cheque fall due on the date of cheque. Upon perusal of the
earlier agreement Ex. P/6, it appears that this cheque was given a
security in 2016 itself when the earlier construction agreement was
executed between the parties on 04.09.2016. This cheque continued to
be retained by the present appellant when the fresh ex. P/8 has been
executed between the same party on 05.09.2017. The agreement does
not mention that under what circumstances the security cheque would
be presentable to the bank and under what circumstances the amount
mentioned in the security cheque would fall due to be paid by the
respondent.
9 . In fact, upon perusal of the entire agreement Ex. P/8, it
appears that on the date of such agreement there was no excess
payment made to the respondent who had taken out a contract to
construct the house of the appellant. Even during the course of the
argument, learned counsel for the appellant is unable to point out
anything from the pleadings or from the evidence that an excess
payment at any point of time was made to the respondent who was
contractor and to take back the excess payment, the cheque was
presented in the Bank. It has been vehemently argued by learned
counsel for the appellant that since the respondent abandoned the
work, the appellant put to a loss by the work having been left
incomplete by the respondent. Thus, the appellant was justified in
presenting the cheque in the bank. The aforesaid contingency is not
mentioned in the agreement between the parties. No damages
for abandonment for work or for breach of contract have been
quantified in the agreement.
10. Even the trial court in para 15 of the judgment has held that
the appellant has failed to prove that under what basis the amount of
Rs. 1,50,000/- which is the amount of cheque is due against the
respondent. The trial court after consideration of evidence has held
that no liability of Rs. 1,50,000/- in the matter of construction could
be proved by the appellant. Upon perusal of the documents placed on
record and the evidence I am unable to disturb the aforesaid finding
of fact recorded by the trial court, so as to covert the finding of
acquittal in to one of conviction.
11. Learned counsel for the appellant at this stage referred to
certain documents filed along with application for urgent hearing for
the first time before this Court and not even filed under Section 391 of
Cr.P.C. It is contended that the appellant has got valuation carried out
from structural Engineer for remaining work and thus there is
remaining work left by respondent and that the judgment of acquittal
may be set-aside, considering such documents.
12. This Court has already held that the appellant has failed to
prove that excess payment was taken by the respondent-accused
against the work done by him, so as to justify presentation of cheque
of security. Thus, even the documents though not filed under Section
391 of Cr.P.C. still do not help the case of appellant
13. Consequently, the appeal being devoid of merit, stands
dismissed.
(VIVEK JAIN)
JUDGE
MISHRA
