Madhya Pradesh High Court
Bholaram Patel vs Brijkishore Kurmi on 16 July, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:32329
1 CRR-5044-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 16th OF JULY, 2025
CRIMINAL REVISION No. 5044 of 2019
BHOLARAM PATEL
Versus
BRIJKISHORE KURMI
Appearance:
Shri Bholaram Patel - applicant present in person.
Shri Shafiqullha - Advocate for the respondent.
ORDER
Heard on I.A. Nos.31063/2024, which is an application for taking
documents on record.
2. Looking to various opportunities granted to the applicant and
the documents were in possession of the applicant since the trial started
before the trial Court and the fact that it is revision where the Court has
to examine the illegality in the orders passed by the Courts, I am not
inclined to allow this application, hence, it is dismissed.
3. With the consent of both the parties, this Criminal Revision is
finally heard at motion hearing stage.
4. This criminal revision has been preferred by the applicant under
Section 397/401 of the Code of Criminal Procedure, 1973 against his
judgment of conviction and order of sentence dated 24.09.2019 passed in
Cr.A.No.268/2017 by the 22nd Additional Sessions Judge, Jabalpur,
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whereby though the Appellate Court has affirmed his judgment of
conviction dated 10.06.2017 passed in Complaint Case No.18921/2013,
but modified his quantum of sentence from one year's RI to till rising of
the Court. In addition, the Appellate Court has also enhanced the amount
of compensation from Rs.2,72,000/- to Rs.2,80,000/- to be paid to
respondent/complainant, with default stipulation.
5. The applicant Bholaram Patel present in person and has
submitted that he has not handed over any cheque to the respondent. He
has submitted that there was a quarrel between the applicant, his wife
and her mother-in-law who visited Delhi and from there, she had stolen
the cheques and that cheques were misused. He lodged an FIR in Police
Station- Mandir Marg, New Delhi and also published notice in the
newspapers regarding the theft of the cheques but these facts have not
been considered by the Courts. He has also submitted that agreements
(Exhibit-P/8 and Exhibit-P/9) were not executed by him. On 20.07.2013,
the applicant was present in Katni, Court and his statements were being
recorded whole day. The trial Court has relied on these documents. He
has further submitted that there is no transactions between the applicant
and the respondent. Hence, the trial Court and the Appellate Court have
wrongly convicted the applicant and sentenced him and thus the trial
Court and the Appellate Court have committed illegality. Hence, the
revision petition be allowed.
6. Learned counsel for the respondent has supported the impugned
judgments of trial Court and the Appellate Court and has submitted that
the trial Court and the Appellate Court have already dealt the applicant
with leniency, hence no further leniency required.
7. Heard the parties and perused the record.
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8. As per complaint, the complainant's case in nutshell is that the
complainant and the applicant were related to each other as being the
members of family and were the resident of same house, same village.
During the period of 2006 to 2012, the applicant and his son-Amar had
time and again borrowed Rs.4,00,000/-, in which no other interest or
benefit was attached. The loan was taken in installments and the
transactions were written in time and again. Lastly, in July, 2013, the
applicant made promise to pay the amount and on demand of the
borrowed money, the applicant had given him a cheque No.266380 of an
amount of Rs.2,00,000/- on 28.07.2013 of the Head Post Office, New
Delhi. The cheque was handed over in Cherital and assured that the
cheque will be honoured. On 16.09.2013, the cheque was submitted in
State Bank of India, Branch Jawaharganj, Jabalpur. The cheque was
dishonoured on 25.09.2013 and the intimation to the complainant was
given on 30.09.2013. Notice was issued to the applicant on 07.10.2013
through registered AD demanding the cheque amount. The notice was
served but the cheque amount was not paid by applicant within the
prescribed period of 15 days. Hence on 18.11.2013, the complaint under
Section 138 of the Negotiable Instruments Act was filed.
9. The complainant in support of his contention has submitted
cheque (Exhibit-P/1), cheque deposit receipt (Exhbitip-P/2), dishonoured
memo (Exhibit-P/3) and registered notice (Exhbit-P/4), Post receipt
(Exhibit P/5), letter to post Office (Exhibit-P/6), Compromise deed
(Exhibit-P/8) and Promissory Note (Exhibit-P/9).
1 0 . In chief examination, the complainant had supported the
complaint.
11. In the cross-examination, PW-1 has denied that he was well
acquainted with the family of the applicant's wife. This witness has also
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admitted that the applicant is residing in Delhi and he was having good
relation with the applicant. He has visited Delhi for three times only. He
has expressed his ignorance in respect of the theft of cheque book, from
which these cheques were issued. There was dispute between the
applicant, his wife and her family members. He has also denied the fact
that the applicant has intimated the theft of cheque to Police Station -
Mandir Marg, New Delhi. He was not acquainted with the fact that that
the applicant had instructed the bank/post office to stop the payment of
cheque. He has also denied the suggestion that from the cheque book of
account No.848877, cheque numbers after the series of cheque No.
266361, he has published the notification in the newspaper that they
have been lost and stated that he by himself has given the money to the
applicant.
1 2 . He has also expressed his ignorance regarding cheque
no.266377. The case was filed by the applicant against his mother-in-law
- Laxmibai and he is also not knowing that the accused has been
acquitted in that case. He had also denied the suggestion that total
amount that was payable to the applicant was of Rs.1,03,200/-. He
denied the suggestion that by fraud, he has obtained the cheques and
misused them.
13. The witness Amar Kurmi (PW-2) son of the complainant has
supported the complainant.
14. Witness Ratnesh Nikhar (PW-3) has supported that document
(Exhibit -P/9) was executed in his presence and it also bears his
signatures in 'D' to 'D' part and also supported that agreement written
was of Rs.4,00,000/- and at that time, the cheque was handed over by the
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applicant to the complainant.
15. The applicant Bholaram Patel (DW-1) in his statement had
denied that he handed over the cheques to the complainant and stated
that he had not given cheque to the complainant and the cheques were
missing on 17.06.2003. He searched the cheques and cheques were not
found. In 17.06.2003, in Delhi, his marriage was being solemnized with
Bharti daughter of Laxmibai. Both these persons visited his house and
his wife Bharti had handed over the cheque book to her mother
Laxmibai and on 07.06.2004, he demanded the cheque and cheque book
from Laxmibai, told to her husband Dinesh Patel that if they have stolen
the cheque and return to him. Along with the cheque book, 2 stamps
each of Rs.50/-, 2 Hundi books and the cheque book were stolen and
not return to him. On 07.06.2004, he has given a complaint to Gol Post
Office, New Delhi to stop payment and on 09.06.2004, he published a
notification in Dainik Madhya Pradesh, Newspaper, Katni. He has also
lodged an FIR in Police Station- Mandir Marg, New Delhi. Police has
not acted on his complaint. He came to know the proceedings of this
case when he got summons of this case. He has not executed the
promissory note and stated that in 2005, he had borrowed Rs.60,000/-
from Brajkishore and return Rs.1,03,200/- before the year 2008 and he
has not handed over any cheque.
16. In the cross-examination, this witness has admitted that he can
signed in Hindi as well as in English and he also used to sign Hindi as
well as English. For a long time, he is visiting house of complainant-
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Brajkishore. He also visited house of Brajkishore that is in Cherital.
After filing the complaint, he has visited house of Brajkishore once or
twice. He has also admitted that Brajkishore has issued a notice for
dishonouring the cheque but he has not replied that notice. He also
admitted that notice was sent at his Delhi address.
17. Further, in cross-examination, he has admitted that the cheque
No.266380 (Exhibit-P/1) bears his signature. He had also admitted that
the cheque was dishonoured and on notice he had not replied. Knowing
well that the complainant is committing fraud with him. He also admitted
that Exhibit-P/8 in part 'B' to 'B' bears his signatures and admitted that
he has written down Exhibit-P/8. He has also admitted in part 'B' to 'B'
of Exhibit-P/9 he has singed. He has also admitted that in the cheque
book there were 20 cheques, in which some were remaining. He has
used some cheques and some were remaining. Cheque No.266377 used
by his mother-in-law (Saas). He also admitted that in that case, he has
been convicted by the trial Court and acquitted by the Appellate Court.
He has denied the suggestion that he had borrowed Rs.4,00,000/- from
2006 to 2012 from the complainant and when the demand was made, he
has signed the promissory note Exhibit-P/9.
18. Thus, from the statement of applicant himself, it is clear that
Exhibit - P/8 bears his signature and it was written by him and in this
document is on stamp of Rs.100/- and in this case, it has been clearly
mentioned that he had borrowed Rs.1,03,200/- on 03.05.2006 and he will
return amount on or before 02.05.2008 and if does not paid, he will
transfer agricultural land. This agreement was executed on 03.05.2006.
1 9 . Exhibit-P/9 that bears signature of the applicant, as he had
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admitted his signatures, this document was executed on 20.07.2013 and
in this document it had been clearly mentioned that he is handing over
the cheque Nos.266379 to 266380 each of Rs.2,00,000/- drawn on
20.07.2013 and 28.07.2013 and this was regarding transactions took
place between year 2006 to 2012 and no interest included in these
transactions and assured that cheque will be honored and the payment
shall be made.
20. The applicant in his cross examination has also admitted that
cheques bear his signature. Applicant has also admitted the fact that
notice was served on him in the address of Delhi and he has not replied
the notice and in the notice in clear terms, it has been stated that the
cheques handed over to the complainant were dishonored and demand
was made. He has also admitted that he was knowing that complainant
was misusing and committing fraud but he has not replied that is
unnatural that if any person who has made a complaint for loss of his
cheque book and alleged that his cheque book has been stolen by his
mother-in-law and the paper publication was made, police was informed
and the post office authorities were informed to stop the payment, then
keeping mum and not replying the notice by the such person who is
vigilant enough creates a suspicion over his conduct that the cheques
were lost or stolen and in his cross-examination, he has also admitted
that he has used some cheques and one cheque was stolen by his mother-
in-law.
21. Hence, it is admitted that Exhibit-P/8 and Exhibit-P/9 that are
evidence of the transaction between parties. The signatures in the cheque
are admitted. Receiving of notice is admitted and he has not replied and
objected the notice.
2 2 . In these circumstances, when in Exhibit-P/9 it has clearly
mentioned that the cheques each of Rs.2,00,000/- amount dated
20.07.2013 and 28.07.2013 was being handed over, then it cannot be
inferred that the complainant has received stolen cheques from the
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applicant's mother-in-law and Exhibit-P/9 was forged and there was no
transaction.
23. Furthermore, Section 139 of the Negotiable Instruments Act
has a presumption clause that when the cheque is given to any party and
the prosecution is being launched for the offence punishable under
Section 138 of Negotiable Instruments Act, it shall be presumed that the
cheques were handed over in lieu of consideration received by the
drawer. Furthermore, presumption of Section 118 of the N.I. Act is also
applicable against the applicant.
24. The dishonour of the cheque on account of closing of account
also comes in the purview of offence under Section 138 as the Apex
Court in the case of NEPC Micon Limited Vs. Magma Leasing Private
Limited (1999) 4 SCC 253 has clearly held "that the return of cheque by
the Bank unpaid on the ground that "account is closed" could mean that
the cheque is returned as unpaid on the ground that the amount of money
standing to the credit of account is insufficient to honor the cheque and
the reason is that the cheque was dishonored as amount of money
standing to credit of that account was nil at the relevant time apart from
it being closed."
2 5 . Accordingly, conviction and sentence affirmed by the
Appellate Court is further affirmed.
26. The Revision Petition sense merits is dismissed.
(DEVNARAYAN MISHRA)
JUDGE
VB*
