The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No.796 of 2018 --------- Radhamani Devi ... Petitioner -Versus- 1. The State of Jharkhand 2. Parmendar Kumar Singh --------- … Opposite Parties CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Petitioner For the State For the O.P No.2 ------- : Mr.D.K. Karmakar, Advocate : Mrs. Vandana Bharti, A.P.P. : Mrs. Kavita Singh, Advocate --------- JUDGEMENT 13/ Dated: 27.09.2023 The present Criminal Revision Application has been filed on behalf of the petitioner by challenging the judgment dated 13.03.2018 passed by then learned Judicial Commissioner, Ranchi in Cr. Appeal No.38 of 2017, by which, the learned Judicial Commissioner has dismissed the said criminal appeal and has affirmed the judgment of conviction and order of sentence dated 17.02.2017 passed by the Ms. Nitasha Barla, the learned Judicial Magistrate, 1st Class, Ranchi, by which, the learned Magistrate has convicted the petitioner for the offence under Section 138 of the N.I Act and has sentenced her to undergo Rigorous Imprisonment for a period of six (06) months for the offence under Section 138 of the N.I. Act and the petitioner has further been directed to pay Rs.4,01,500 to the O.P No.2 by way of compensation. 2. The complainant-opposite Party No.2 namely, Parmendra Kumar Singh had filed a complaint case before the learned Chief Judicial Magistrate, Ranchi bearing Complaint Case No.2831 of 2014, stating therein that both the party (i.e, the petitioner and O.P No.2) were known to each other for the last five years and the petitioner used to run her business of ‘Mess’ in order to supply food 2 in the Hostel. It has further been stated by the complainant that the petitioner namely, Radhamani Devi was badly in the need of money to run her business of ‘Mess’ as well as other works. So, she requested to the complainant-O.P No.2 to help in the running of her business by giving her some loan amount and she has also assured to return the money within six months. On assurance of the petitioner, the opposite party no.2 gave her an amount of Rs.3,65,000/- in the month of October, 2013 and after six months in the month of May, 2014, when the opposite party No.2 asked for his money, then, she requested for some more time and in the month of June, 2014, she gave him a cheque of the said amount vide Cheque No.016720 dated 01.06.2014. However, when the aforesaid cheque was presented before the Indus Ind Bank,Lalpur Branch, on 18.06.2014 on the request of the petitioner, but the same was returned on 19.06.2014 due to “insufficient funds” in account of the accused-petitioner. It has also been stated that the legal notice was sent to the petitioner on her address on 15.07.2014, but the petitioner had neither replied to the notice, nor the cheque amount was paid within 15 days of receiving the legal notice and hence, the instant case was instituted.
Legal Reasoning
3. Heard Mr. D.K. Karmakar, learned counsel for the petitioner and Mrs. Vandana Bharti, learned counsel for the State and Mrs. Kavita Singh, learned counsel for the O.P No.2. 4. It is submitted by the learned counsel for the petitioner that the impugned judgments passed by the learned Courts below are not sustainable in the eyes of law. It is further submitted that the learned Courts below have passed the impugned judgments without scrutinizing the evidence in favour of the present petitioner and documents. It is further submitted that the cheque was not filled up by the petitioner but it has not been considered by the learned Courts below, while passing the impugned judgments. It is further submitted that the present case has been instituted on 25.09.2014 but when 3 notice was served to the present petitioner, has not been mentioned. It is further submitted that as per record there is one document i.e Agreement dated 25.01.2014, which has been exhibited as Ext.5, but the witness of Ext.5 have not been produced before the learned Court below to corroborate the statement of the Opposite Party No.2 as well as to prove the correctness of the contents of the said document Ext.5. It is further submitted that the petitioner, during her statement recorded under Section 313 of the Cr.P.C, has specifically stated that the Ext.5 is a forged document, but on that point, the learned Court below without giving any findings and without proper scrutiny has passed the impugned judgments. It is further submitted that there is no prove of sending the legal notice under Section 138(1) (c) of the N.I. Act. It is further submitted that the allegedly amount of Rs.3,65,000/- was paid in the month of October, 2013, but the cheque was allegedly issued in the month of January 2014. It is further submitted that from the evidence of C.W.1 (i.e, Parmendra Kumar Singh), it is clear that the petitioner had handed over a cheque on 25.01.2014 in view of Ext.5, but the cheque was presented for encashment on 18.06.2014. It is further submitted that it has come during the evidence of the complainant-O.P No.2 (i.e., C.W.1) that the cheque and date on the cheque were filled by the complainant- opposite party no.2 himself and thus, the date of issuance of cheque is doubtful. It is further submitted that proper questions were not put to the petitioner under Section 313 Cr.P.C. It is further submitted that the petitioner had taken certain amount and she stated while examined under Section 313 Cr.P.C on 29.07.2016 that she has handed over a blank cheque to the Opposite Party No.2 as she used to do work in his house and even she has not taken opinion from her husband and she has not put her signature on the said stamp paper and she has denied for taking loan from the complainant. It is further submitted that no money receipt was proved by the complainant for 4 giving an amount of Rs.3,65,000/- to the petitioner. It is further submitted that the Agreement dated 25.01.2014 i.e. Ext.5 was signed under coercion. It is further submitted that the petitioner has falsely been implicated in this case by the O.P No.2. It is further submitted that as a matter of fact the provision of Sections 138(1) (C) and Section 138(B) and Section 142 (b) (C) of the N.I. Act were not complied with. It is further submitted that the C.W.1, who has stated that the legal notice was sent on 15.07.2014 at one place but he stated that the legal notice was sent on 20.07.2014 which is contradictory to each other and hence, this criminal revision application may be allowed. It is further alternatively submitted that the petitioner is a poor lady and has remained in jail custody for around 5 months & 13 days and hence, lenient view may be taken against her. 6. On the other hand, learned counsel for the State has opposed the prayer made by the petitioner and has further submitted that the impugned judgments passed by the learned Courts below are fit and proper and no interference is required. It is further submitted that the learned Courts below have rightly convicted the petitioner for the offence under Section 138 of the N.I. Act and hence, this Criminal Revision Application may be dismissed. 7. Learned counsel for the O.P No.2, after adopting the submission of the learned counsel for the State, has further submitted that both the learned Courts below have found the petitioner guilty for the offence under Section 138 of the N.I. Act. It is also submitted that the petitioner was running a business of ‘Mess’ and had purchased the land also. It is further submitted that the petitioner had promised that she will give the said land to the O.P No.2 for the Godown. It is further submitted that a legal notice was sent on 15.07.2014 vide registered post on 16.07.2014. It is further submitted that the petitioner had admitted her signature on the said cheque as 5 well as the Agreement dated 25.01.2014 and as such, no illegality has been committed by the learned Courts below while convicting the petitioner for the offence under Section 138 of the N.I. Act and hence, this criminal revision application may be dismissed. 8. Perused the lower court records of this case and considered the submissions of both the sides. 9. From perusal of the lower court records, it transpires that the complaint case has been filed against this petitioner on the ground that the petitioner had taken an amount of Rs.3,65,000/- in the month of October, 2013 with the promise to pay the amount within a period of six months and after six months have been lapsed, when the O.P No.2 asked her to return his money. Then, the petitioner was requested him for time and thereafter, she had given a cheque to him on 01.06.2014, but the said cheque was presented on 18.06.2014 then the said cheque was returned on 19.06.2014 due to ‘insufficient fund’ in the account of the petitioner and thereafter, a legal notice was sent by the O.P No.2 to the petitioner on 15.07.2014, but no amount was paid. 10. It transpires that the complainant-O.P No.2 was examined himself as C.W.1. 11. It transpires that the following documents have been marked as the Exhibits which are as follows:- (i) Ext.1 is the cheque dated 01.06.2014, (ii) Ext.2 is the Cheque return memo dated 19.06.2014, (iii) Ext.3 is the legal notice dated 15.07.2014, (iv) Ext.4 is the postal receipt dated 16.07.2014, and (v) Ext. 5 is the Hand Note dated 25.01.2014, on a Non-Judicial Stamp 12. Thereafter, the petitioner was examined under Section 313 Cr.P.C on 29.07.2016 and she has denied the circumstances put forth before her. 6 13. However, the petitioner has neither produced any witnesses, nor proved any documents in support of her case. 14. Thereafter, the learned Trial Court has merely discussed the evidence of the complainant-O.P No.2 i.e, Parmendra Kumar Singh, who was examined as C.W.1 and has mentioned that the complainant has proved bouncing of the cheque and thereafter, legal notice and workhand note dated 25.01.2014 were sent and which have been marked as Exhibits.1 to 5 respectively and the learned Court below has not discussed in any detail about the Exhibits. 15. Although, the learned Court below has noted that the complaint had disputed cheque during her statement recorded under Section 313 Cr.P.C. However, the learned Court below has convicted the petitioner for the offence under Section 138 of the N.I. Act merely on the ground that the cheque has been signed by the petitioner and the signature on the petitioner has not been denied by the accused- petitioner. 16. The learned Appellate Court has dismissed the criminal appeal on the ground that it bears the signature of the petitioner. 17. Therefore, scrutinizing the evidence of C.W.1 and appreciation of Exts.1 to 5 is required. 18. First of all, it will be relevant to discuss the handnote/agreement i.e. Ext.5. Ext.5 is the hand note on the Non-Judicial Stamp, which has been signed by the petitioner namely, Radhamani Devi and also the witnesses namely, Rohit Singh & Kavita Singh (Advocate) but it does not bear the signature of the complainant namely, Parmendra Singh. Even the reverse page of the Non-Judicial stamp has not been proved by the complainant to show as to on which particular date and month and the year, the said paper i.e. Ext.5 was purchased by the petitioner or the O.P No.2. 7 19. From perusal of the Ext.5 i.e., handnote dated 25.01.2014, it would appear that it contains an undertaking of the petitioner namely, Radhamani Devi that she has taken Rs.3,00,000/- cash and certain articles of an amount of Rs.65,000/- from Parmendra Kumar Singh (i.e, O.P No.2) and she will return the said amount of Rs.3,65,000/- within six months and for which, she has issued a cheque bearing cheque No.016720 and in which, amount has been mentioned during her presence. She has further declared that if she fails to return the money, then Paremendra Kumar Singh will have right to take legal action against her. 20. It also reveals from the Ext.5 that the Ext.5 has not been signed by the complainant-O.P No.2 rather it is signed by one Rohit Singh and one Kavita Singh and the witness namely, Kavita Singh is an Advocate and who also stood as a witness for the complainant and had also filed the complaint case before thelearned Trial Court. 21. C.W.1 is Parmendar Singh i.e, the complainant and who has stated during his evidence that the petitioner, in order to discharge her liability, had issued cheque bearing cheque No.016720 dated 01.06.2014 an amount of Rs.3,65,000/- on the assurance that the cheque will be enchased and the accused-petitioner asked him to fill the cheque in her presence and which was filled by him and the said cheque has been marked as Ext.1, but when he presented the cheque in the Bank they it had returned on 19.06.2014 due to ‘insufficient fund’ in the account of the petitioner. Thereafter, he had sent legal notice i.e, Ext.3 vide postal receipt marked as Ext.4. Even after receipt of the legal notice, money was not paid to him. He has further proved the Ext.5 by stating that the accused-petitioner has given written hand note on 25.01.2014 on Non-Judicial Stamp. During his cross-examination, he has stated that while the petitioner was taking cash from him then she had assured that the opposite party no.2 will keep his Godown in her land and she will 8 return her money. He has further admitted that one staff is a witness of the bond and he has fled away by taking his money and he had instituted a case against him also in the police station. He has further stated that Kavita Singh is the 2nd witness of the bond, who is contesting his case and she is his relative and he has also stated that money was taken in presence of the customers, but he cannot say the name of any of the customers. He had denied the suggestion that the accused-petitioner was his “Maid Servant” and hence, he had instituted false case against her by stealing her papers. Thus, it is evident from the evidence of C.W.1 that though he has received the cheque on 25.01.2014, but he had filled the same i.e, on 01.06.2014 and as such, the signing of cheque by the petitioner on 01.06.2014 is doubtful. 22. Even the complainant-O.P No.2 has failed to explain as to which articles worth of Rs.65,000/- were purchased by the petitioner from him. Therefore, the cheque issued by the petitioner is either under coercion or under certain misrepresentation of fact led by the O.P No.2 upon the petitioner. 23. From perusal of the L.C.R, it transpires that the petitioner was examined under Section 313 Cr.P.C on 29.07.2016, but the learned Court below has failed to draw the questions under Section 313 Cr.P.C in question No.2 and the question No.2 is completely blank. Although, the learned Court below has recorded the answer of the petitioner, who had stated that she used to do work in the house of Parmendra Singh (i.e, O.P No.2) and the complainant had asked the cheque from her and had asked her to sign a cheque and the petitioner in absence of proper knowledge and even without informing her husband, she had handed over a cheque signed by her and she had flatly denied her signature on the stamp paper (i.e the Hand Note-Ext.5) and she had specifically stated that she had not taken any amount from the complainant. 9 Thus, it is evident that the learned Judicial Magistrate has not confronted the petitioner on the question of issuance of cheque by her which is clearly visible in the Lower Court Records. 24. It further transpires that the learned Appellate Court has overlooked this aspect of the matter that no question was framed with regard to issuance of cheque by the petitioner to the O.P No.2 and although learned Court below had recorded her answer. 25. It is the question of handing over cheque of Rs.3,65,000/- by the petitioner to the complainant-O.P No.2 was not asked by the learned Court below from the petitioner during her statement recorded under Section 313 Cr.P.C and thereafter circumstances not put forward to an accused-petitioner cannot be used against her. 26. It has been held in the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in (1984) 4 SCC 116 at para-143 12 and 144 as follow:- “Para-143:- Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4,5,6,8,9,11,12,13,16, and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code, 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Pradesh this Court held that any circumstance in respect of which an accused was not examined under Sectioin 343 of the Criminal procedure code cannot be used against him ever since this decision. there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of the old Code (corresponding to Section 313 of the Criminal Procedure Code, 1973), the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra this Court held thus: [ SCC para 5, p. 440: SCC (Cri) p. 58] The fact that the appellant was said to be absconding, not having been put to him under section 342, Criminal Procedure Code, could not be used against him." Para-144:- To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat where the following observation were made: [SCC (Cri) p. 653, para 3] "In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant…” 10 27. It has been held by the Hon’ble Supreme Court in the case of Ashraf Ali vrs. State of Assam reported in 2008(16) SCC 328 at paragraph Nos. 21 & 22 are as follows:- “Para-21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary there from that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. Para-22. The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.) [(1976) 2 SCC 819 : 1976 SCC (Cri) 324 : AIR 1976 SC 2140] while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facts by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.” 28. It has been held by the Hon’ble Supreme Court in the case of Paramjeet Singh vrs. State of Uttarakhand 2010 (10) 439 at paragraph No.2 is as follows:- “Para-22. Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration. (Vide Sharad Birdhichand [(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] and State of Maharashtra v. Sukhdev Singh [(1992) 3 SCC 700 : 1992 SCC (Cri) 705] .” for such 29. It has been held by the Hon’ble Supreme Court in the case of Vijay vrs. Laxman and Another reported in 2013 (3) SCC 86 at paragraph No.13, 14 & 15 are as follows:- “Para-13. The complainant has thus miserably failed to prove his case that the cheque was issued towards discharge of a lawful debt and it was meant to be encashed on the same date when it was issued specially when the complainant has failed to disclose the date on which the alleged amount was advanced to the respondent-accused. There are thus glaring inconsistencies indicating gaping hole in the complainant's version that the cheque although had been issued, the same was also meant to be encashed instantly on the same date when it was issued. 11 Para-14. Thus, we are of the view that although the cheque might have been duly obtained from its lawful owner i.e. the respondent-accused, it was used for unlawful reason as it appears to have been submitted for encashment on a date when it was not meant to be presented as in that event the respondent would have had no reason to ask for a loan from the complainant if he had the capacity to discharge the loan amount on the date when the cheque had been issued. In any event, it leaves the complainant's case in the realm of grave doubt on which the case of conviction and sentence cannot be sustained. Para-15. Thus, in the light of the evidence on record indicating grave weaknesses in the complainant's case, we are of the view that the High Court has rightly set aside the findings recorded by the courts below and consequently set aside the conviction and sentence since there were glaring inconsistencies in the complainant's case giving rise to perverse findings resulting into unwarranted conviction and sentence of the respondent. In fact, the trial court as also the first appellate court of facts seems to have missed the important ingredients of Sections 118(a) and 139 of the NI Act which made it incumbent on the courts below to examine the defence evidence of rebuttal as to whether the respondent- accused discharged his burden to disprove the complainant's case and recorded the finding only on the basis of the complainant's version. On scrutiny of the evidence which we did to avoid unwarranted conviction and miscarriage of justice, we have found that the High Court has rightly overruled the decision of the courts below which were under challenge as the trial court as also the first appellate court misdirected itself by ignoring the defence version which succeeded in dislodging the complainant's case on the strength of convincing evidence and thus discharged the burden envisaged under Sections 118(a) and 139 of the NI Act which although speaks of presumption in favour of the holder of the cheque, it has included the provisos by incorporating the expressions “until the contrary is proved” and “unless the contrary is proved” which are the riders imposed by the legislature under the aforesaid provisions of Sections 118 and 139 of the NI Act as the legislature chooses to provide adequate safeguards in the Act to protect honest drawers from unnecessary harassment but this does not preclude the person against whom presumption is drawn from rebutting it and proving to the contrary.” 30. Although, the judgment of the learned Trial Court as well as Appellate Court below are fit to be set-aside on this ground and there is no necessity to further discuss the materials available on record. However some aspects are also being considered. 31. It transpires that the complainant is a poor lady and she had not issued a cheque on 01.06.2014 and Ext.5 is the disputed document and hence, the learned Court below ought to have verified from some Hand Writing Expert in order to do proper justice between the parties particularly where the petitioner had clearly denied her signature on the Ext.5 which is the hand note dated 25.01.2014. 32. In the present case, it would appear that the cheque No.016720 was issued by the petitioner to the O.P No.2 on 25.01.2014 then issuance of cheque on 01.06.2014 with the signature of the petitioner is not possible as per the complainant case and the evidence of the 12 complainant-O.P No.2 is contradictory to complaint case filed by the O.P No.2. 33. It further transpires that learned trial court i.e, Judicial Magistrate, 1st Class, Ranchi had hurriedly disposed of the case of the complainant-O.P No.2 without allowing the accused-petitioner proper opportunity to lead her evidence in rebuttal. 34. It further transpires that no witness has been examined on behalf of the complainant-O.P No.2 for handing over of Rs.3,00,000/- & Rs.65,000/- total Rs.3,65,000/- to the petitioner in the month of October, 2013. 35. It further transpires that even Rohit Singh & Kavita Singh are the witnesses of the Handnote dated 25.01.2014 have not been examined by the complainant before the learned Court below. 36. It further transpires that the averments made in the complaint case that the petitioner had taken Rs.3,65,000/- in the month of October, 2013 to run her business of ‘Mess’ is completely different from the facts of Handnote dated 25.01.2014 in which it has been mentioned that the petitioner is said to have taken Rs.3,65,000/- from the shop of the complainant to construct her house and both are contradictory to each other.
Decision
37. Therefore, in view of the above, it is evident that the petitioner has been able to rebut the presumption drawn against her. 38. It also reveals from the L.C.R that the statement of the petitioner was recorded under Section 313 Cr.P.C on 29.07.2016 and thereafter it was fixed for defence evidence on 14.09.2016 and from 14.09.2016 it was fixed on 01.10.2016 and on 01.10.2016 itself, the defence evidence was closed by the learned Judicial Magistrate, 1st Class, Ranchi which shows that the learned Court below had hurriedly closed the evidence and fixed the case for argument and has passed the impugned judgment and sentence dated 17.02.2017. 13 Thus, the conduct of the learned Court below has apparently led to miscarriage of justice. 39. It also appears that the petitioner has remained in custody for more than five months. 40. In view of the above discussion, the judgment dated 13.03.2018 passed by then learned Judicial Commissioner, Ranchi and the impugned judgment of conviction and order of sentence dated 17.02.2017 passed by the Ms. Nitasha Barla, the Judicial Magistrate, 1st Class, Ranchi are set-aside in the interest of justice and the petitioner namely, Radhamani Devi is acquitted for the offence under Section 138 of the N.I. Act and the petitioner is discharged from the liability of her bail bonds and the petitioner is not required to pay any amount to the complainant-O.P No.2. 41. Thus, this Criminal Revision Application No.796 of 2018 is hereby, allowed. Raja/Bibha (Sanjay Prasad, J.)