Sunil Kumar Jain, vs Dinesh Kumar Jain,
2022 Latest Caselaw 650 Tel

             HONOURABLE JUSTICE G. SRIDEVI

                    CRL.R.C. No.41 of 2013

JUDGMENT:

This Criminal Revision Case is filed under Sections 397

and 401 of the Code of Criminal Procedure, 1973 against the

judgment, dated 03.01.2013, passed in Crl.A.No.269 of 2010,

wherein the learned IV-Additional Metropolitan Sessions

Judge, Hyderabad, confirmed the judgment, dated 26.07.2010,

passed in C.C.No.326 of 2008 on the file of the XIV-Additional

Judge-cum-XVIII-Additional Chief Metropolitan Magistrate at

Hyderabad.

The facts of the case are as under:

The 1st respondent herein, who is the complainant before

the trial Court, filed a private complaint under Section 200

Cr.P.C. against the revision petitioner/accused for the offence

punishable under Section 138 of the Negotiable Instruments

Act, stating that he was doing business in gold jewellery and

supplies the same to various traders; that the revision

petitioner/accused approached him in September, 2004 and

requested him for a hand loan of Rs.32.00 lakhs for his business

purposes with a promise to repay the same within a short time;

that between September, 2004 and November, 2004, the 1st

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respondent/complainant gave an amount of Rs.32,00,000/- on

various occasions to the revision petitioner/accused; that, on

30.07.2005, the revision petitioner/accused executed a

Memorandum of Understanding promising to repay the

amount as per the terms and conditions mentioned in the said

Memorandum of Understanding and issued three post dated

cheques, one cheque for Rs.5,00,000/- and two cheques for

Rs.1,00,000/- each towards discharge of the said debt and that

when the said cheques were presented for encashment, the

same were dishonoured on 24.11.2005 on the ground that the

revision petitioner/accused issued instructions to the banker to

stop payment. Therefore, the 1st respondent/complainant got

issued notice, to which the revision petitioner/accused gave a

reply with false contents. As such, the 1st

respondent/complainant filed a complaint for the offence

punishable under Section 138 of the Negotiable Instruments

Act, 1881 (for short 'the Act').

On behalf of the 1st respondent/complainant, P.Ws.1 and

2 were examined and Exs.P1 to P12 were marked. On behalf of

the revision petitioner/accused, D.Ws.1 and 2 were examined

and Exs.D1 and D2 were marked.

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The trial Court, after considering both the oral and

documentary evidence found the revision petitioner/accused

guilty for the offence punishable under Section 138 of the

Negotiable Instruments Act and accordingly convicted and

sentenced him to undergo simple imprisonment for a period of

six months and to pay compensation of Rs.10,000/- to the 1st

respondent/complainant, in default, to undergo simple

imprisonment for three months. Aggrieved by the same, the

revision petitioner/accused preferred Crl.A.No.269 of 2010

before the IV-Additional Metropolitan Sessions Judge,

Hyderabad. Vide judgment, dated 03.01.2013, the learned

Sessions Judge dismissed the appeal confirming the conviction

and sentence imposed by the trial Court.

     None         appears        on        behalf         of     the       1st

respondent/complainant.          Heard learned Counsel for the

revision      petitioner/accused,         learned        Assistant     Public

Prosecutor appearing for the 2nd respondent/State and perused

the record.

Learned Counsel for the revision petitioner/accused

would submit that the 1st respondent/complainant has no

capacity to lend such a huge amount of Rs.32.00 lakhs. It is

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further submitted that the 1st respondent/complainant, who

was examined as P.W.1, has admitted in his evidence that

though he was an income tax assessee, the returns were not

filed in the Court and he did not know whether the present

transaction was shown in his income tax returns or not and that

his income is only Rs.20,000/- to Rs.30,000/- per month. It is

further submitted that when the revision petitioner/accused

disputed the financial capacity of the 1st

respondent/complainant, the burden shifts on the 1st

respondent/complainant to prove the same. It is also

submitted that the 1st respondent/complainant has not proved

his source of funds, the mode, the time or place when he lent

such huge amount of Rs.32.00 lakhs and that the revision

petitioner/accused did not execute any document at the time of

receipt of the loan. It is further submitted that P.W.1 also

admitted in his cross-examination that the revision

petitioner/accused lodged a report against him and one Abid

Bhai, and the same was registered as a case in Crime No.353 of

2005 of Humayun Nagar P.S., for the offences punishable under

Sections 342, 347 and 506 of I.P.C., stating that the 1st

respondent/complainant and one Abid had forcibly taken his

signatures on twenty cheque leaves bearing Nos.247161 to

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247180 including the impugned cheques, Memorandum of

Understanding and other documents. It is also submitted that

apart from filing the present case against the revision

petitioner/accused in Hyderabad, the 1st

respondent/complainant also filed seven cases of a similar

nature in the Courts at Mumbai in connection with the alleged

dishonour of the above cheques arising out of the same

transaction. Out of those seven cases, two cases were ended in

acquittal and the remaining five cases were withdrawn on

account of a compromise between the parties. It is further

submitted that the revision petitioner/accused entered into a

compromise with the 1st respondent/complainant and the 1st

respondent/complainant filed a compromise petition in

Crl.R.C.M.P.No.4021 of 2013 on 10.12.2013, but the 1st

respondent/complainant has withdrawn his consent for

compromise after receiving Rs.3.00 lakhs through demand

drafts. Therefore, prayed to allow the revision. In support of

his contentions he relied upon the following judgments:-

1. Basalingappa v. Mudibasappa1

2. Meters and Instruments Private Limited and others v.

Kanchan Mehta2

(2019) 5 SCC 418

(2018) 1 SCC 560

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Learned Assistant Public Prosecutor appearing for the 2nd

respondent/State would submit that the trial Court has rightly

found the revision petitioner/accused guilty of the offence

punishable under Section 138 of the N.I. Act and the same was

confirmed by the appellate Court and, therefore, no interference

is warranted.

Today, before pronouncing the judgment, the learned

Counsel for the 1st respondent/complainant has appeared

before this Court and submitted that both the Courts below

rightly held that the 1st respondent/complainant had

established his case that the cheques were issued by the

revision petitioner/accused towards discharge of legally

enforceable debt, which was affirmed by the appellate Court.

He further submitted that the reasoning assigned by the Courts

below in support of its findings in favour of the 1st

respondent/complainant and against the revision

petitioner/accused, is justified and that there is no reason to

interfere with the concurrent findings of the Courts below and,

therefore, prayed to dismiss the revision.

A perusal of the material on record would show that in

order to prove his case, the 1st respondent/complainant has

filed Exs.P1 to P12. The case of the 1st respondent/complainant

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is that he advanced a sum of Rs.32,00,000/- to the revision

petitioner/accused between September, 2004 and November,

2004 and thereafter on 30.07.2005, the revision

petitioner/accused executed a Memorandum of

Understanding, which was marked as Ex.P10. In order to

discharge the said liability in part, the revision

petitioner/accused issued the impugned cheques. The defence

of the revision petitioner is that the 1st respondent has not

advanced any amount to him and that the disputed cheques

were obtained from him forcibly and that the revision

petitioner/accused has lodged a complaint in Humayun Nagar

Police Station, Hyderabad.

The record also reveals that during the cross-examination,

the 1st respondent/complainant had admitted that the revision

petitioner/accused lodged a report against him and one Abid

Bhai in Crime No.353 of 2005 of Humayun Nagar Police

Station, for the offences punishable under Sections 342, 347 and

506 of I.P.C. as they forcibly taken his signatures on twenty

cheque leaves bearing Nos.247161 to 247180, Memorandum of

Understanding and other documents. The 1st

respondent/complainant has not been able to show why the

revision petitioner/accused has filed a complaint against him

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with Humayun Nagar Police Station, Hyderabad. So also, the

1st respondent/ complainant has failed to show the mode, the

time and place of handing over of the amount of Rs.32,00,000/-

that too in the year 2004. Further, the 1st

respondent/complainant has failed to produce any record to

show his profit and loss account and balance sheet and list of

debtors pertaining to the year 2004 to support his case that he

has lent a sum of Rs.32,00,000/- to the revision

petitioner/accused.

In Basalingappa v. Mudibasappa (1 supra), the Apex Court

held as under:-

"We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs.6.00 lakhs given to the accused, within two years, amount of Rs.18.00 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence. The observation of the High Court that trial Court's finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see that how the trial Court's findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence."

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In the instant case also, the 1st respondent/complainant

has failed to produce any evidence to show that he is having

financial capacity to lend such huge amount of Rs.32,00,000/- to

the revision petitioner/accused within a short span of three

months time.

Further, the record also reveals that apart from filing the

present case against the revision petitioner/accused in

Hyderabad, the 1st respondent/complainant has also filed

seven cases of a similar nature in the Courts at Mumbai in

connection with the alleged dishonour of the above cheques

arising out of the same transaction. Out of those seven cases,

two cases were ended in acquittal and the remaining five cases

were withdrawn on account of a compromise between the

parties. That apart, in the present case, the revision

petitioner/accused entered into a compromise with the 1st

respondent/complainant agreeing to pay a sum of Rs.3.00 lakhs

to him in two equal instalments and as per the understanding,

he paid a sum of Rs.1.50 lakhs by way of Demand Draft bearing

No.014393 dated 23.09.2013 and that the 1st

respondent/complainant filed a compromise petition on

10.12.2013. Thereafter, the revision petitioner/accused paid a

sum of Rs.1.00 by way of Demand Draft bearing No.014530

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dated 17.12.2013 and a sum of Rs.50,000/- by way of Demand

Draft bearing No.014586 dated 15.02.2014 and that the said

Demand Drafts were encashed by the 1st

respondent/complainant in his bank account in Indian

Overseas Bank, Kalbadevi Branch, Mumbai. However, the 1st

respondent/complainant has withdrawn his consent for

compromise after receiving Rs.3.00 lakhs from the revision

petitioner/accused through the aforesaid Demand Drafts.

For the aforesaid reasons and in view of the decision of

the Apex Court referred to above and since the 1st

respondent/complainant failed to establish his financial

capacity, the mode, time or place when he lent such a huge

amount of Rs.32,00,000/- to the revision petitioner/accused, I

am of the considered view that the finding recorded by the trial

Court that the 1st respondent/complainant had established that

the cheques were issued towards discharge of legally

enforceable debt, which was affirmed by the appellate Court, is

suffered from illegality and caused miscarriage of justice.

Hence, the conviction and sentence of imprisonment imposed

against the revision petitioner/accused for the offence

punishable under Section 138 of the N.I. Act is liable to be set

aside.

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Accordingly, the Criminal Revision Case is allowed. The

conviction and sentence of imprisonment imposed by the trial

Court as affirmed by the appellate Court for the offence

punishable under Section 138 of the N.I. Act are hereby set

aside and the revision petitioner/accused is acquitted of the

said charge. Fine/compensation amount, if any, paid by the

revision petitioner/accused shall be refunded to him. The bail

bonds of the revision petitioner/accused shall stand cancelled.

Miscellaneous petitions, if any, pending shall stand

closed.

_____________________ JUSTICE G. SRIDEVI

15.02.2022 Gsn