Ajay Kumar Srivastava, aged about 64 years, S/o Late Radha Mohan Lal, R/o near v. 1. The State of Jharkhand 2. Kaushal Kumar Singh, Son of Brajesh Kumar Singh
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 735 of 2022 Ajay Kumar Srivastava, aged about 64 years, S/o Late Radha Mohan Lal, R/o near Sheo Mandir, Bazartanr, Main Road, P.S. & P.O. Latehar, District Latehar Petitioner … … Versus 1. The State of Jharkhand 2. Kaushal Kumar Singh, Son of Brajesh Kumar Singh, resident of Amba Kothi, Ward No. 07, Post Latehar, Police Station Latehar, District Latehar --- … … Opp. Parties CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the State For the O.P. No. 2 12/23rd February 2024 --- --- : Mr. Samavesh Bhanj Deo, Advocate Ms. Piyushita Meha Tudu, Advocate : Ms. Vandana Bharti, Advocate : Mr. Rakesh Kumar, Advocate 1. 2. Heard the learned counsel for the parties. This petition has been filed challenging the judgment dated 27.05.2022 passed by the learned Additional Sessions Judge, Latehar in Criminal Appeal No. 44/2018, whereby the learned Additional Sessions Judge has upheld the judgment of conviction and order of sentence passed by the learned Sub- Divisional Judicial Magistrate, Latehar in Complaint Case No. 260/2017 corresponding to T.R. No. 290/2018. The petitioner has been held guilty for committing offence under Section 138 of the Negotiable Instruments Act (in short “N.I. Act”) and has been sentenced to undergo rigorous imprisonment for one year and six months and has been directed to pay the total cheque amount of Rs. 5,00,000/- and in default further undergo simple imprisonment for two months. Argument of the petitioner 3.
Legal Reasoning
The learned counsel for the petitioner, while challenging the judgment of conviction and order of sentence passed by the learned trial court as well as the appellate court’s order dismissing the appeal, has submitted that though concurrent findings have been recorded by the courts below but the findings are perverse and therefore they called for interference by this Court. 4. The learned counsel further submits that the complainant was not known to the petitioner and there was no occasion of any kind of relationship between 2 the complainant and the petitioner. The learned counsel has submitted that the petitioner had never taken any loan from the complainant, and from the son of the petitioner, namely, Sridhar Srivastava, the petitioner came to know that the complainant was working in M/s Ankur Seeds Private Limited, Ranchi and the complainant was known to his son. While explaining the issuance of the cheque, the learned counsel has submitted that in fact five cheques were given to the complainant by his son to be deposited in M/s Ankur Seeds Private Limited, Ranchi as security and the complainant dishonestly retained all the five cheques with him and one cheque was used in this case dishonestly to grab Rs. 5,00,000/-. The learned counsel has submitted that in the matter of bouncing of cheque though there is a presumption in favour of the complainant but such presumption was rebutted by the petitioner by giving due explanation and by denying any liability to pay any money to the complainant and therefore the onus shifted to the complainant. The learned counsel submits that the complaint cases under N.I.Act are to be examined on the principle of “preponderance of probabilities” and this aspect of the matter has not been properly considered by the both the courts below, therefore, the impugned order calls for interference. 5. The learned counsel for the petitioner has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2019) 18 SCC 106 (Rohitbhai Jivanlal Patel vs. State of Gujarat) and has referred to paragraph 15 thereof to submit that the onus was shifted to the complainant to establish that there was a debt payable by the petitioner to the complainant. The learned counsel has reiterated that there was no enforceable debt against which the cheque was to be issued and therefore in absence of enforceable debt, the conviction under Section 138 of the Negotiable Instruments Act cannot be sustained and the factum of the loan has not been proved by the complainant. Arguments of the O.P. No. 2 6. Learned counsel appearing on behalf of the opposite party No. 2, on the other hand, while opposing the prayer of the petitioner has submitted that both the courts have considered the materials on record and have passed well- reasoned order considering the principle of “preponderance of probabilities” and the impugned judgments do not call for any interference. 7. The learned counsel has also submitted that once the timeline in connection with issuance of cheque, its bouncing and filing of the complaint case stand established in terms of provision of Section 138 of the N.I. Act, the 3 presumption is attracted and the learned courts have rightly taken care of the legal presumption drawn in favour of the complainant. The learned counsel has also submitted that the complainant was not unknown to the petitioner, inasmuch as, even as per the petitioner his son was well-known to the complainant. He has also submitted that although many points have been argued with regard to the son of the petitioner not only before the learned trial court but also before the learned appellate court, but the son of the petitioner never deposed before the learned courts below for the reasons best known to the petitioner. Findings of this Court 8. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that as per the case of the complainant, the petitioner (accused) and the complainant were well-known to each other and for the purposes of business, the petitioner required money which he had taken from the complainant on several dates totaling amounting to Rs. 5,00,000/- stating that the same will be returned to the complainant within six months. 9. Upon lapse of six months, the amount was not returned in spite of repeated requests and ultimately on 15.07.2017, the petitioner gave a cheque of Rs. 5,00,000/- drawn on Punjab National Bank, Latehar Branch which was deposited on the same day in Allahabad Bank, Latehar Branch but returned unpaid by the banker with a slip on 17.07.2017 endorsing “insufficient fund”. A legal notice dated 04.08.2017 was sent to the petitioner for making payment, but in spite of service of notice, the appellant did not pay the money and sent a reply dated 14.08.2017 through advocate. The reply was exhibited as Exhibit-1 whose content has been mentioned in the trial court’s judgment, wherein the accused had questioned as to how the cheque reached the complainant and it was stated that so far as the amount of cheque, time and name is concerned, the same is required to be examined through a handwriting expert. The petitioner had denied any kind of business relationship with the complainant. 10. Upon filing of the complaint, altogether two witnesses were examined from the side of the complainant. Ext.-1 was the reply to the legal notice, Ext.- 2 was the cheque, Ext. 3 was the cheque return memo, Ext. 4 was the registry receipt, Ext. 5 was the legal notice issued by the complainant and Ext. 6 was the complaint letter. The petitioner had also laid evidence and had examined himself as witness No. 1 and had produced two exhibits; Ext. A was the 4 prescription of the Dr. Shekhar Sinha and Ext. B was a letter issued in the letter pad of Krishi Bihar in the name of Director, M/s Ankur Seeds Company. 11. The learned trial court considered the materials on record and has recorded that although the petitioner had stated that he had given the cheques to his son along with four other cheques to be deposited in Ankur Seeks Company, but the petitioner did not produce his son as witness. The petitioner had also not disclosed as to which all cheques were given to Ankur Seeds Company, no details was given and with regard to Ext. B. The learned trial Court has recorded that the exhibit-B did not have any letter number, date etc. and nor it indicated that Ext. B was issued by any competent authority; it did not have the signature and stamp indicating that it was issued by the competent authority; it also had many cuttings and accordingly refused to rely upon Ext. B. 12. The learned trial court after perusal of the evidences on record held that the evidences revealed that the petitioner had taken loan of Rs. 5,00,000/- from the complainant on different dates and the loan was not paid and ultimately the petitioner issued cheque of Rs. 5,00,000/- dated 15.07.2017 to return the money which had bounced on account of insufficient fund. Upon legal notice, the reply was given by the petitioner which shocked the complainant. The learned trial court also recorded that the petitioner had taken a specific stand that the son of the petitioner had known the complainant and they used to move together and also considered the plea of the petitioner that the petitioner himself did not know the complainant. The learned trial court recorded that the cheque was signed by the petitioner which has not been denied by the petitioner and that cheque only returned unpaid on account of insufficient fund. The learned trial Court has ultimately convicted the petitioner for offence punishable under Section 138 of the N.I. Act. 13. Before the learned appellate court, it was the case of the petitioner that the complainant had failed to establish mode, place, date wise amount of payment of loan to the petitioner. The petitioner was an extremely old man and he never took any money from the complainant and the complainant was a stranger to the petitioner. A reply to the legal notice was sent and that the petitioner was cheated as son of the petitioner , namely, Sridhar Srivastava trusted the complainant while handing over the cheques of security to be deposited in M/s Ankur Seeds Private Limited, Ranchi from where the petitioner and his son purchased in wholesale the agricultural items to carry on 5 business as their “Bihar Seeds Shop” situated in Latehar. It was the case of the petitioner before the learned appellate court that these aspects of the matter was not properly considered. 14. The learned appellate court considered the provisions of Sections 138, 139 and 118 of the N.I. Act and thereafter from paragraph 15 onwards considered each and every evidence of both the petitioner as well as the complainant. The learned appellate court has also considered the judgment passed by the Hon’ble Supreme Court reported in (1993) 3 SCC 35 (Bharat Barrel & Drum Manufacturing Company vs. Amin Chand Pyarelal) with regard to the presumption under Section 118 of the N.I. Act and also the judgment passed in the context of Section 118 and 139 of the N.I. Act in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr. reported in