Dismissed¶34

Omprakash Jain v. Smt.jamuna Devi Thakur

Chhattisgarh HC8 Jan 2024ACQA/151/2012

Case brief

AI extract

What is this about?

High Court of Chhattisgarh, Bilaspur, ACQA No. 151 of 2012, decided 09/01/2024 by Deepak Kumar Tiwari, J. Keywords: Section 138 Negotiable Instruments Act; Section 139 presumption; blank cheque as security; pledged jewellery; money-lending licence not produced; ledger not produced; appeal against acquittal; possible view; double presumption; Jafarudheen Vs. State of Kerala (2022) 8 SCC 440 applied; Kalamani Tex v. P. Balasubramanian referred by appellant; appeal dismissed, acquittal upheld.

What did the court decide?

No interference with the acquittal; appeal dismissed. ¶34

Omprakash Jain Vs Smt.jamuna Devi Thakur — Cheque Dishonour | Chhattisgarh HC (2024)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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ACQA No. 151 of 2012

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Omprakash Jain S/o Nemichand Jain Aged About 38 Years R/ o New Market Dalli Rajhara, P.S. Dalli Rajhara, Distt. Durg C.G.

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---- Appellant

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Versus

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Smt. Jamuna Devi Thakur W/o S.P. Thakur Aged About 40 Years R/o Zone No 01, Road No 03, Plot No 1787 New Adarsh Nagar, Durg, Village Chhuria Dongri, P.S. Banjari, via Chhuria, Distt. Rajnandgaon, Chhattisgarh

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---- Respondent

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For Appellant : Shri Ali Afzaal Mirza, Advocate. For Respondent : Shri Shikhar Agnihotri on behalf of Shri Awadh Tripathi, Advocate.

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Hon'ble Shri Deepak Kumar Tiwari, J

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Order On Board

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09/01/2024 :

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This Appeal is directed against the judgment dated 25.6.2010 passed by the Judicial Magistrate 1^st Class, Durg whereby the respondent/accused has been acquitted of the charge under Section 138 of the Negotiable Instruments Act.

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Prosecution case is that the complainant is running the business of gold and silver jewellery and a general store. There is old relation with the husband of the respondent/accused being an old customer. The respondent/accused was also familiar to the complainant. The respondent/accused has

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taken a loan of Rs.3,50,000/- from the complainant and for its payment, she had given a cheque (Ex.-P/1) of Rs.3,50,000/- on 1.6.2004. When the complainant presented the said cheque for withdrawal before the concerned bank, the bank vide Ex.-P/2 informed him on 2.6.2004 about dishonour of the said cheque due to insufficient funds and the account has also been closed. Thereafter a legal notice was sent to the respondent/accused vide Ex.-P/8 on 8.6.2004. After receiving the said notice, vide Ex.-P/6 & P/7, when the respondent/accused has not made any payment, a complaint was filed on 2.7.2004.

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During trial, the respondent/accused abjured her guilt and claimed to be tried. After completion of the trial, the trial Court has acquitted the respondent/accused. Hence this Appeal.

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Learned counsel for the appellant would submit that the trial Court has not appreciated the evidence in proper perspective, as the respondent/accused in her cross-examination admits about signing of the cheque. When the blank cheque was voluntarily signed, statutory presumption under Section 139 of the Negotiable Instrument Act attracts. The respondent/ accused has failed to rebut the said statutory presumption. Reliance is placed on the judgment of the Hon’ble Supreme Court in the matter of M/s Kalamani Tex & Another Vs. P. Balasubramanian {Criminal Appeal No.123/2021, decided on 10.2.2021}.

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On the other hand, learned counsel for the respondent/ accused would submit that the trial Court has properly appreciated the evidence and the judgment is well merited. He would submit that the complainant has categorically admits that he is engaged in the business of lending money, therefore, the defence raised by the respondent that she pledged her jewellery to the complainant and in lieu of security, she had given a blank cheque which was misused by the complainant, probable. Therefore, the presumption is rebutted. The Appeal has no merit, which deserves to be dismissed.

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I have heard learned counsel for the parties at length and perused the record with utmost circumspection.

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Complainant (PW-2) Om Prakash Jain has categorically stated in his cross-examination, at para-3, that he also gives loan by pledging the jewellery articles and for such money lending business, he is also having money lending licence. But during trial, the said licence was not produced or proved. The complainant further admits that he had given loan to various persons, for which ledger has also been maintained. But no such ledger has been produced in the present case. The complainant further admits that whenever any jewellery is pledged, then after deduction of 30% of the cost of such jewellery, loan was advanced and the interest was charged at the rate of Rs.2/- per hundred. He admits that if any person pledges any jewellery article, entry is made in their register.

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The complainant further has stated that the money which was advanced to the respondent/accused was not relating to business and it was his personal money, therefore, he has not maintained any record of the said amount. He completely denies that any jewellery was pledged by the respondent/ accused.

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The respondent (DW-1) has categorically deposed that she has taken a loan of Rs.1 lakh after pledging her jewellery of about 12 Tola Gold. In first installment, the complainant has given Rs.20,000/- and thereafter the complainant has given Rs.80,000/-. At the time of payment of Rs.80,000/-, the complainant has also obtained a blank cheque. She has further stated that from time to time she has also paid interest. The respondent was informed that till 1.1.2003, balance of Rs.2,04,348/- and further interest of Rs.98,087/- was due and thus the outstanding dues of Rs.3,02,435/- was still to be paid, whereas no such amount was due towards the respondent. The complainant has not returned the blank cheque and misused the same.

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Sister of the respondent/accused (DW-2) has also deposed in the similar lines that her sister has obtained a loan after pledging the gold and in lieu of security, the complainant has obtained the blank cheque from her and the same was misused.

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Considering the nature of evidence and the fact that the complainant himself has admitted that he is doing the money lending business, but no such licence was produced or proved and further no ledger has been produced by the complainant, so presumption that the respondent/accused has not cleared the loan and the defence raised by the respondent is probable that by pledging her jewellery loan was advanced and in lieu of security, a blank cheque was obtained, further considering that in the present case, when the complainant is doing the business of money lending and no account has been produced, in the opinion of this Court, the trial Court has rightly acquitted the respondent/accused and the finding arrived at by the trial Court is possible one.

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In the matter of Jafarudheen Vs. State of Kerala, {(2022) 8 SCC 440} in respect of scope of appeal against acquittal, the following was observed at para 25 :

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“ 25 . While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be termed as a possi- ble one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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In view of the aforesaid principle and on the basis of discussion in the preceding paragraphs, this Court is of the view that the judgment rendered by the trial Court is well merited which does not call for any interference.

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In the result, the Appeal being bereft of any substance deserves to be and is hereby dismissed.

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Sd/(Deepak Kumar Tiwari) Judge

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Barve

Omprakash Jain v. Smt.jamuna Devi Thakur

Case brief

What is this about?

What did the court decide?

Omprakash Jain v. Smt.jamuna Devi Thakur

Case brief

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