Madhya Pradesh High Court
Rinku @ Mahesh Verma vs Mohit on 10 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:3084
1 CRR-3808-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 10th OF FEBRUARY, 2025
CRIMINAL REVISION No. 3808 of 2024
RINKU @ MAHESH VERMA
Versus
MOHIT
Appearance:
Shri Rishikesh Bohare - Advcoate for petitioner.
Shri Anshu Gupta- Advocate for respondent.
ORDER
Heard on the question of admission.
2. This Criminal Revision, under Section 397/401 of Cr.P.C. has been
filed against judgment and sentence dated 28.06.2024 passed by Additional
Judge, Guna, to the Court of Additional Sessions Judge, Chachauda in
Criminal Appeal No.03/2021, by which applicant has been convicted under
Section 138 of Negotiable Instruments Act.
3. Facts, necessary for disposal of present petition, in short, are that
complainant filed a complaint on the ground that applicant and complainant
were on good terms. About five months back, applicant went to the house of
complainant and on account of his personal requirement, he prayed for a loan
of Rs.Three Lacs. When it was informed by complainant that he has only
Rs.2,90,000/-, then applicant gave an assurance that he would return the
aforesaid amount within two months. Accordingly, complainant gave an
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amount of Rs.2,90,000/- to applicant. After two months when he demanded
his money back, then applicant gave a Cheque No.073756 for Rs.2,90,000/-
to the complainant. The cheque was presented by complainant on 04.04.2017
but it was returned by the Bank on account of insufficient funds. Thereafter,
complainant informed applicant with regard to return of cheque but he did
not make the payment of cheque amount. Accordingly, complainant sent a
legal notice on 26.04.2017 through his counsel but inspite of receipt of notice
the cheque amount was not paid and accordingly, complaint was filed.
4. Trial Court framed the charge under Section 138 of Negotiable
Instruments Act. Applicant abjured the guilt and pleaded not guilty.
5. The complainant examined himself in support of his complaint
whereas applicant did not examine any witness in his defence.
6. The Trial Court by judgment and sentence dated 25.03.2021 passed
in SCNIA No.75/2017 convicted the applicant for offence under Section 138
of Negotiable Instruments Act and sentenced him to undergo RI for two
years and to pay a compensation of Rs.3,94,000/-, in default to suffer RI for
three months.
7. Being aggrieved by aforesaid judgment passed by the Trial Court,
applicant preferred an appeal which too has been dismissed by Additional
Judge, Guna, to the Court of Additional Sessions Judge, Chachauda by
judgment and sentence dated 28.06.2024 in Criminal Appeal No.03/2021.
8. Challenging the judgment of conviction and sentence passed by the
Courts below, it is submitted by counsel for applicant that since the
transaction itself is suspicious in nature, therefore, the Courts below have
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committed material illegality by convicting him for offence under Section
138 of NI Act. It is further submitted by counsel for applicant that
complainant has failed to prove that any transaction had taken place. The
reason for issuance of cheque projected by the complainant is suspicious and
therefore the Courts below should not have convicted the applicant for
offence under Section 138 of NI Act.
9. Per contra, revision is vehemently opposed by counsel for
respondent. Counsel for respondent submitted that both the Courts below
have recorded concurrent findings of fact by holding that applicant had
voluntarily issued the cheque which was ultimately returned back by the
Bank and thus he has rightly been convicted under Section 138 of the NI
Act.
10. Heard learned counsel for parties.
11. Before considering the merits of the case, this Court would like to
consider the conduct of the applicant. Applicant had filed this criminal
revision without surrendering before the Trial Court. Ultimately, he was
arrested and by order dated 18.10.2024 he was granted bail.
12. Admittedly, applicant did not send his reply to the notice issued
under Section 138 of Negotiable Instruments Act. Applicant, in his statement
recorded under Section 313 of Cr.P.C., has stated that since complainant is in
the business of Satta (Gambling), therefore, apart from disputed cheque, he
had given two more blank cheques for playing gambling. Applicant has also
accepted that cheque of Rs.2,90,000/- was issued by him and it was returned
back by the Bank on account of insufficient funds. He has specifically stated
NEUTRAL CITATION NO. 2025:MPHC-GWL:3084
4 CRR-3808-2024
that he was intending to return the amount but the case was filed. He also
admitted that he received notice under Section 138 of NI Act but claimed
that it was received belatedly. He further stated that he was under an
obligation to pay only Rs.50,000/- and the said amount was in his account.
Again, he stated that he was under obligation to return Rs.50,000/- on
account of gambling and still he is ready to pay the amount. The relevant
portion of his statement recorded under Section 313 of Cr.P.C. is reproduced
as under:
.7. उ सा ी का कहना है क उसके पये मांगने पर आपने दनां◌ंक 14.03.2017 को भारतीय
टे ट बक ऑफ इं डया शाखा बीनागंज का एक चैक मांक "073756" रािश दो लाख न बे हजार पये दश
पी.01 का ह ता र करके दया था?
उ र- प रवाद स टा चलाता है इसिलए ववा दत चैक के अित र दो और चैक सटृ ा खेलने के
िलए प रवाद को लक दए थे।
.8. उ सा ी का कहना है क उसने जब वह चैक आहरण के िलए टे ट बक ऑफ इं डया क
शाखा बीनागंज म जमा कया था?
उ र- सह है ।
.9. उ सा ी का कहना है क टे ट बक ऑफ इं डया क शाखा बीनागंज ने दनांक 04.04.2017
को चैक इस ापन के साथ वापस कर दया था क चैक दाता के खाते म रािश अपया है और चैक बना
भुगतान के और अनाद रत कर उसे दश पी.02 के ापन अनुसार वापस कर दया?
उ र- सह है ।
.10 उ सा ी का कहना है क उसने आपको य गत तोर पर कहा क आपके ारा दया गया
चैक बाउ स हो गया है ?
उ र-सह है ।
.11 उ सा ी का कहना है क उसके ारा कई बार पय क मांग क गई , पर आपके ारा उसे
पये नह ं दये गये?
उ र- मै पैसे दे ना चाह रहा था कंतु उ होने यह केस लगा दया।
.16 उ सा ी का कहना है क आपने जानबूझकर खाते म पया रािश न रख कर उसे चैक दया
है ?
उ र-मुझे केवल पचास हजार पये दे ने थे जो मेरे खाते मे थे।
NEUTRAL CITATION NO. 2025:MPHC-GWL:3084
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.17 उ प रवाद आपके व य बोलते ह ?
उ र - मुझे प रवाद को केवल सटटे के 50 हजार पये दे ना है । जो अब भी म प रवाद को दे ना
चाहता हू ँ ।
13. Admittedly, applicant has not disputed his signatures on the
cheque in question. He has also not disputed his liability but his only claim is
that although cheque of Rs.2,90,000/- was issued by him, however, he is
under obligation to pay only Rs.50,000/-.
14. It is true that a presumption can be drawn that the cheque was
issued in discharge of legal liability and by claiming that the amount was
payable by him on account of gambling, applicant wanted to claim that
cheque was not issued in discharge of legal liability but it was issued in
discharge of proceeds of offence.
15. Under these circumstances, the burden was on applicant to show
that cheque was issued towards proceeds of offence. Except taking the
aforesaid defence in his statement under Section 313 Cr.P.C., nothing else
was placed on record. Even no suggestion was given to complainant in his
cross-examination.
16. Furthermore, it is well established principle of law that this Court
in exercise of power under Section 397/401 of Cr.P.C. cannot interfere with
the concurrent findings of fact, until and unless they are shown to be
perverse. No perversity could be pointed out by counsel for applicant.
17. Accordingly, this Court is of considered opinion that no case is
made out warranting interference.
18. Ex. consequenti , judgment and sentence dated 28.06.2024 passed
by Additional Judge, Guna, to the Court of Additional Sessions Judge,
NEUTRAL CITATION NO. 2025:MPHC-GWL:3084
6 CRR-3808-2024
Chachauda in Criminal Appeal No.03/2021 as well as judgment and sentence
dated 25.03.2021 passed by JMFC, Chachuda, District Guna (M.P.) in
SCNIA No.75/2017 are hereby affirmed. Revision fails and is hereby
dismissed.
19. Applicant is on bail. His bail bonds are cancelled. He is directed to
surrender before the Trial Court on or before 12.03.2025, failing which trial
court shall issue perpetual warrant of arrest against applicant.
20. Let copy of this order along with records of courts below be
returned back for necessary information and compliance.
(G. S. AHLUWALIA)
JUDGE
(and)
