Ashok Yadav S/o Late Ram Chanda Yadav, aged about 51 years, residents of Baba v. 1. The State of Jharkhand 2. Nirbhay Kumar Singh, S/o Sri Shyamadeo Singh, residents
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 313 of 2020 Ashok Yadav S/o Late Ram Chanda Yadav, aged about 51 years, residents of Baba Kuti, Carriage Colony, FCI Road, Near Ram Mandir, P.O. Tatanagar, P.S. Burmamines, Town-jamshedpur, District-East Singhbhum … … Petitioner Versus 1. The State of Jharkhand 2. Nirbhay Kumar Singh, S/o Sri Shyamadeo Singh, residents of Sai Shyam Dham, Gurudwara Road, Jemco, Azad Basti, P.O. and P.S. Telco, District-East Singhbhum at Jamshedpur … … Opp. Parties --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Opp. Party
Legal Reasoning
--- : Mr. Jitesh Kumar, Advocate : Mr. A.K. Sahani, Advocate --- 10/13.09.2024 Heard the learned counsel for the parties. 2. This revision has been filed for setting aside the judgment dated 10th August 2018 passed by the learned Sessions Judge, East Singhbhum, Jamshedpur in Criminal Appeal No. 59 of 2018 whereby the learned lower Appellate Court has affirmed the judgment dated 21.02.2018 passed by Judicial Magistrate, 1st Class, Jamshedpur, in C/1-Case No. 537 of 2016/T.R. No. 91 of 2018 by which the petitioner had been held guilty under Section-138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N. I. Act ) and the petitioner was directed to undergo simple imprisonment for six months and also to pay compensation amount of Rs. 5,50,000/- to opposite party No. 2. 3. The learned counsel for the petitioner submits that although both the courts have returned concurrent findings while convicting the petitioner for the offence punishable under Section 138 of the N.I Act but the impugned judgments are perverse on the ground that no document was brought on record by the complainant to show that he had shown the money advanced to the petitioner in his Income Tax return. He has referred to Section 269 of Assessment of Income Tax Act to submit that any amount exceeding to Rs. 20,000 has to be given only by way of cheque. The learned counsel has submitted that the capacity to extend money has also not been proved by the complainant. 4. The learned counsel submits that the complainant had made a case that a friendly loan was given to the petitioner which was used in gambling. The learned counsel submits that the fact that the money was used in gambling by the petitioner, the amount so used in gambling cannot be said to be legally enforceable debt and therefore the case under section 138 N.I. Act was itself not maintainable for bouncing of cheque in connection with the money which the petitioner had used in gambling. 5. It is submitted that the complainant is in a habit of giving loan and is doing business of money lending without showing his income under the Income Tax and five different cases against different persons have been instituted by the complainant and therefore the transaction of money which had taken place cannot come within the meaning of legally enforceable debt. It is submitted that the evidence of one independent witness C.W. 3 has not been properly examined by the court. 6. The learned counsel for the opposite party has opposed the prayer and has submitted that the learned courts have passed well- reasoned judgment by referring to each and every material on record and the judgments do not call for any interference in revisional jurisdiction. The learned counsel has also submitted that the learned courts have also considered the presumption under Section 139 of the N.I. Act and such presumption was never rebutted even on the touchstone of 'preponderance of probabilities'. 7. After hearing learned counsel for the the parties and considering the facts and circumstances of this case, this court finds that the complainant had filed a complaint case against the petitioner under Section 138 of the N.I Act stating that they were well known to each other and both of them were businessman and had closed friendly relationship. It was alleged that taking advantage of close relationship, the petitioner demanded an amount of Rs. 9 lacs as friendly loan for 2 his business in the month of August 2015 which was duly extended to the petitioner who assured to return the loan in three months; in order to return the money, two post dated cheques of Rs. 5 lacs dated 31.12.2015 and Rs. 4 lacs dated 30.04.2016 were issued by the petitioner. The cheque dated 31.12.2015 was presented and it returned unpaid and after completing all the legal formalities the case was instituted. The reason for dishonour of the cheque was “drawers signature differs”. During the course of arguments, no grievance has been raised by the learned counsel for the petitioner with regard to the timeline prescribed for instituting the case under the provisions of Section 138 of the N.I. Act. The finding recorded by the learned Trial Court in paragraph 13 that the complainant had followed all the legal procedure and the case was filed within limitation to set the case of the prosecution in motion is not in dispute. 8. The learned Trial court has considered the evidences of all the three witnesses C-1 was the complainant and C-2 and C-3 were the other two witnesses and they were also the witnesses to the issuance of cheque by the petitioner to return the money of Rs. 9 lacs apart from the fact that they were witnesses of advancement of loan of Rs. 9 lacs. The learned Trial Court recorded its finding in paragraph 13 to 19 as follows and convicted the petitioner. “13. In the present case the averments mentioned by the complainant in his examination in chief and the factum presented before the Court through various exhibited documents very clearly shows that the complainant has followed all the legal procedures that too within limitation in order to set the case of prosecution in motion. 14. According to sec 139 of NIA, 1881 the Court has to presume that the cheque was issued by the drawer towards discharge of any debt or any liability however such presumption is not irrebuttable rather the evidence can be adduced by the defence to obviate the case of the presumption. However, the sole burden to rebut the presumption lies entirely upon the shoulders of the accused unless the case of complainant itself appear to improbable and unsustainable in the eyes of law. In the present case nothing appears before the court to disbelieve the case of complainant rather the documentary evidence filed on behalf of the complainant in the form of bounced cheque 3 the the CWI, testimony of dated 31/12/15 in favour of the complainant marked as exhibit-6, cheque return memo dated 02/01/16 stating the reason of return as "Drawer's signature differs” marked as exhibit-2, demand notice dated 20/01/16 marked as cxhibit- 3, postal slip dated 22/01/16 marked as exhibit-4, courier slip of demand notice dated 23/01/16 marked as exhibit-5, that all legal and procedural formalities have been complied by the complainant before filing the present case. 15. In support of the case complainant has adduced two eyewitnesses who had seen the transaction of advancing loan in cash to the accused person and giving of cheque by the accused to the complainant in discharge of the said loan amount. And i.e. complainant of the present case, CW2 and CW3 remained unshaken during cross examination and went on to support the case of the complainant. In the present case cheque return memo states the reason for the non-payment as "Drawer's signature differs", but when the statement of the accused was recorded under section 313 of CrPC, 1973, he has stated that he has given the cheque as security and he had not taken any money, therefore it can be presumed that the said cheque was drawn by the accused himself and there is nothing contrary to doubt the genuineness of the cheque drawn by the accused. Accused did not advance any defense in his support. Accused did not take the defense that legal notice was not served upon him, so the court presumes that the demand notice was served properly within time as both parties reside in the same city and legal notice was sent through two modes of delivery. 16. In the present case the cheque returned by the bank due to difference in nature and the drawing of the cheque has not been denied by the accused. Even after service statutory notice, if the amount involved that is rs 5 lakh in the present case has not been paid by the drawer of the cheque i.e. accused then his intentions are prima facie clear, to the effect that he would be tampering with the cheque only with an oblique motive. If in such case the person in whose favour the cheque is issued is not allowed to prosecute the matter u/s 138 of NIA, 1881, the very purpose of enacting s 138 NIA, 1881 would be frustrated. In the present case the drawer of the cheuqe should have taken abundant precaution while issuing the cheque so that the cheque could be honoured and contractual obligations are fulfilled. 17. In the present case where the cheque has been returned due to difference in drawer's signature, the Court presumes by virtue of s 138 NIA, 1881 that the cheque was 4 peived by the Complainant for the discharge of the debt advanced in the form of loan which been witnessed by the two witnesses produced before the Court in the form of CW-2 and CW-3 in the present case who have not only deposed before this Court on examination in chief but also withstood the rigors of cross examination and went on to support the case of the Complainant which tilts in favour of the Complainant. three witnesses brought before 18. There is nothing on record to doubt the credibility of this Court. the Moreover, two independent witnesses CW-2 and CW-3 have supported the case in totality Complainant being the proprietor of Priya Electronics can not be doubted of his capability to advance the said loan of Rs. 5 lakhs which has been supported by other two witnesses. 19- In the light of the exhibited documents on record in the present case and the witnesses brought before the court and in absence of any contra evidence by the accused the Court has come to the considered opinion that accused has committed the offence punishable u/s 138 NIA, 1881. The complainant has been able to prove that a loan of Rs. 5 Lakhs was advanced to accused and for the repayment of the same one cheque bearing no. 269107 of Rs 5 Lakhs was issued by him which was dishonoured by the bank, due to insufficiency of fund. And even after receipt of legal notice accused did not pay the cheque amount to the complainant.” (emphasis supplied) 9. The learned Appellate Court also scrutinized the materials on record and dismissed the appeal. 10. So far as argument of the petitioner that the complainant did not bring any material on record with regard to his income tax return and to show that the money advanced by the complainant was already disclosed in the income tax is concerned, this court is of the view that the same has no bearing in the matter. There is no such stipulation under Section 138 of the N.I Act that in order to convict a person under Section 138, the amount so advanced should have been shown by the complainant in his income tax. Accordingly, such argument is devoid of any merit, hence rejected. Although the learned counsel for the petitioner has submitted that the evidence of the independent witness C.W. 3 has not been properly considered but no further argument has been advanced by the learned counsel for the petitioner 5 with regard to the aforesaid aspect of the matter. The learned Trial Court has record in paragraph 18 of the judgement that the C.W-2 and 3 have supported the case of the complainant and are independent witnesses. Upon perusal of the evidence of the C.W-3 as recorded by the learned Trial Court and learned Appellate Court in paragraph 11 and 5 of the respective judgement , this court finds no such material to interfere with the judgement of conviction passed by the two courts in revisional jurisdiction. 11. So far as the argument regarding use of money for gambling is concerned, this court is of the view that the complainant had made out a specific case with regard to extending friendly loan which the petitioner was to use for his business and ultimate use of money by the petitioner for whatsoever purpose has no bearing in the matter of conviction under Section 138 of the N.I. Act. 12. With regard to the habit of the complainant to give loan is concerned, the same has also no bearing in this case in view of the fact that it was the specific case of the complainant that the money was demanded by the petitioner for his business purpose and they were well known to each other and it was extended as a friendly loan. Other cases filed by the complainant has neither brought on record before the learned courts nor the same has any bearing in the matter. This court finds that the basic ingredients for offence under Section 138 of Negotiable Instruments Act were duly satisfied and accordingly there is no merit in this case. 13. There are concurrent findings of both the courts with regard to the conviction of the petitioner. In revisional jurisdiction there is no scope for interference by reappreciating the evidences on record and coming to a different finding in absence of any perversity or material irregularity or material illegality. The learned counsel for the petitioner has not been able to make out a case for interference in the impugned judgements. 14. Accordingly, this revision petition is dismissed. 6 15. Bail bond furnished by the petitioner has been earlier directed to be cancelled vide order dated 19.08.2021 which was already communicated earlier to the court concerned as per office note. 16. 17. Let this order along with order dated 19.08.21 be immediately Pending I.A., if any, is closed. communicated to the court concerned through FAX/e-mail. Binit (Anubha Rawat Choudhary, J.) 7