Bhawar Singh vs Babulal
2024 Latest Caselaw 12801 MP

Madhya Pradesh High Court

Bhawar Singh vs Babulal on 7 May, 2024

Author: Vijay Kumar Shukla

Bench: Vijay Kumar Shukla

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                   AT INDORE
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                   ON THE 7 th OF MAY, 2024
                                            CRIMINAL REVISION No. 5509 of 2023

                           BETWEEN:-
                           BHAWAR SINGH S/O RAMSINGH THAKUR, AGED
                           ABOUT 58 YEARS, OCCUPATION: BROKER R/O VILLAGE
                           CHORDIYA TEHSIL MHOW DISTT. INDORE (MADHYA
                           PRADESH)

                                                                                              .....PETITIONER
                           (BY MS. RITIKA RATHI, LEARNED COUNSEL)

                           AND
                           BABULAL S/O NANDRAM AMERIYA, AGED ABOUT 67
                           Y E A R S , OCCUPATION: AGRICULTURE R/O 419
                           BHOLAGALI       MHOW    DISTT.INDORE (MADHYA
                           PRADESH)

                                                                                             .....RESPONDENT
                           (BY SHRI SAURABH SHRIVASTAVA, LEARNED COUNSEL)

                                 This revision coming on for admission this day, th e court passed the
                           following:
                                                               ORDER

With consent of the parties, the matter is heard finally.

2. The revision is filed under Section 397 r/w 401 of Cr.P.C. being

aggrieved by judgment passed by learned 5th Additional Sessions Judge, Dist. Indore in CRA No.28/2023 on 04.11.2023, whereby the learned Appellate Court has partly allowed the appeal preferred by the applicant thereby affirming the conviction and reducing the sentence awarded by JMFC, Dr. Ambedkar Nagar, Indore in SCNIA No.96/2017 vide judgment dated 28.02.2023 under Section

138 of NI Act and increasing the fine amount.

3. The applicant has been convicted under Section 138 of Negotiable Instruments Act and sentenced to undergo 1 year RI and fine of Rs.15,95,000/- was imposed.

4. Brief facts of the case are that the complainant had filed a complaint against the applicant under Section 138 of NI Act stating that the applicant for his personal family and agricultural needs, borrowed Rs.11,00,000/- from the non-applicant. When the non-applicant demanded the money back from the applicant, the applicant issued one cheque of Bank of India, Branch Mhow, Dist. Indore, bearing Cheque No.017651 of Rs.11,00,000/-. The non-applicant presented the above-mentioned cheque for encashment in his bank, the same

stood dishonoured with the endorsement of insufficient funds in the applicant's account. Pursuant to the same, the non-applicant issued a demand notice to the applicant and after his service, the non-applicant thus filed a complaint under Section 138 of the Negotiable Instrument Act.

5. The trial Court found the applicant guilty and convicted the applicant vide judgment dated 28.02.2023 for offence under Section 138 of NI Act with 1 year RI with fine of Rs.15,95,000/- and in default thereof 2 months RI. Feeling aggrieved by the same, the accused/applicant preferred a Criminal Appeal before the Appellate Court. The appellate Court in Criminal Appeal No.28/2023 vide judgment dated 04.11.2023, partly allowed the appeal by affirming the conviction, reduced the actual sentence from 1 year RI to till rising of court and increased the fine amount to Rs.17,37,000/-.

6. At the outset counsel for the applicant submits that the applicant is not challenging the order of conviction on merit, but is confining his arguments to the order of sentence.

7. Counsel for the complainant submits that till this date, the applicant has not deposited any amount. It is further submitted that out of Rs.17,37,000/-, Rs.11,00,000/- is cheque amount and the remaining amount is for compensation.

8. After hearing learned counsel for the parties, so far conviction is concerned both the Courts after considering the oral and documentary evidence held that the complainant has proved beyond doubt the existence of liability to pay debt and, therefore, this Court does not find any error in the order of conviction.

9. While maintaining the order of conviction, the jail sentence till rising of the Court is set aside. The present revision is filed without surrounding after the conviction. No reason is mentioned for not surrendering. The applicant is not in custody. However, considering the submission of counsel for the applicant that the applicant is ready to deposit cheque amount and compensation the present revision is disposed of on the following conditions:-

(i) The applicant shall deposit cheque amount of Rs.11 lacs within a period of 30 days from today and the balance amount of Rs.6,37,000/- shall be deposited within 3 months thereafter. If the applicant deposits the aforesaid amount within the aforesaid period, the applicant shall not be taken into custody.

(ii) If the cheque amount is not deposited within 30 days from today, the trial Court shall issue warrant of arrest against the applicant.

(iii) Any violation of aforesaid condition(s) would result into the dismissal of the present revision petition and restoration of order of conviction and sentence by the appellate Court dated 04.11.2023 in Criminal Appeal

No.28/2023 by Additional Sessions Judge, Dr. Ambedkar Nagar and the

applicant shall undergo the jail sentence as per the said order.

10. With the aforesaid, the revision is partly allowed and disposed off.

(VIJAY KUMAR SHUKLA) JUDGE soumya