Shrinee Nair Vs Pramod Chaudhary

The instant criminal revision has been preferred against the judgment dated 21/09/2021 passed by the Second Additional Sessions Judge, Durg C.G. in criminal appeal No.82/2021 arising out of order dated 27/02/2021 passed by the JMFC, Durg in complaint case No.3303/2014, whereby the Sessions Court affirmed the order passed by the trial Court and maintained the conviction and sentence under Section 138 of N.I.

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Digitally signed by ASHUTOSH ASHUTOSH MISHRA MISHRA Date: 2025.11.04 11:36:15 +0530

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Act, 1881 and sentenced the applicant till rising of the Court and pay fine amount of Rs.6,20,000/- and in default of payment of fine amount directed to undergo 02 months S.I.

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The brief facts of the case are that the complainant and the accused were acquainted with each other and had cordial relations between them. The accused demanded Rs. 5,00,000/- from the complainant for domestic and other purposes. The complainant gave him Rs. 5,00,000/- in cash in February 2013. The accused had promised to return the said amount to the complainant by September 2013. By that time, the accused had not deposited the amount. When the money was not returned, the complainant demanded its return. The accused, in response, issued a cheque number 018594, dated 10/09/2013, for ₹5,00,000, issued by ICICI Bank, Nehru Nagar East Branch, to the complainant to discharge his liability. On 19/09/2013, the complainant presented said cheque with Axis Bank, Bhilai Branch, where the bank returned it on the same date due to insufficient funds in the accused's account. The complainant, through his lawyer, sent a notice to the accused via registered mail on 1/10/2013. Despite receiving the notice on 19/10/2013 and the notice was returned to the complainant with a "not claimed" notice. The complainant then filed a complaint before the trial court under Section 138 of the N.I. Act.

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On the basis of the complaint and documents, the trial court took cognizance against the accused and a notice was issued for his appearance. The accused appeared. Charges were framed against the accused under Section 138 of the N.I. Act were read and explained to

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him, he denied the crime and claimed trial. After appreciating the material available on record, the accused was convicted under Section 138 of the N.I. Act and sentenced till rising of the Court and was directed to deposit the fine amount of Rs.6,20,000/- failing which to further undergo SI for 02 months. Being aggrieved with the aforesaid judgment the revisioner preferred an appeal and the said appeal too dismissed. Hence this revision.

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Learned counsel for the applicant would contend that he complainant has not produced any document or independent witness in the case which proves that the complainant had lent the money to the accused. He would next contend that there is contradiction and omission in the statement given by the complainant in examination in chief and cross-examination because in the examination in chief, the complainant stated a cordial relationship with the accused, while in the cross-examination, he stated a formal acquaintance and that he did not even know where the accused lived. He would next contend that this clearly indicates that the complainant and the accused were not well-acquainted enough to give the accused five lakh rupees without an agreement or a promise. He would next contend that further there is contradiction in the statements of the complainant in the examination-in-chief and cross-examination regarding receiving the cheque from the accused. He would next contend that the complainant stated in paragraph 3 of the main examination that when he demanded the said amount from the accused and repeatedly demanded it, the accused handed over the disputed cheque to the complainant on 10/09/2013. However, in paragraph 9 of the

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complainant's cross-examination, he stated that he had kept the cheque (Exhibit P3) as security when he handed over the amount. He would next contend that the complainant has not established the source of the money to give money to the applicant. He would next contend that the complainant's ledger account bears the name Srinu, while the accused's name is Srini, therefore, this raises a doubt about the case. He would lastly submit that under these circumstances the impugned judgment and sentence be set aside and the accused be acquitted.

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Per contra, learned counsel for the respondent opposes the submission advanced by learned counsel for the revisioner and would contend that the judgment of conviction and order of sentence passed by the learned trial Court is well reasoned, based on proper appreciation of evidence and supported by law. He would next contend that the revisioner borrowed a sum of Rs.5,00,000/- and in discharge of that a cheque was issued and the said cheque was dishonoured for insufficiency of funds. He would next contend that the legal notice was duly issued which the revisioner refused to accept. He would lastly contend that the impugned judgment do not require any interference by this Court and the instant criminal revision deserves to be dismissed.

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I have heard learned counsel for the parties and perused the record.

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From a careful scrutiny of the evidence on record and the impugned judgment, it is evident that the complainant, examined as C.W.1 Promod Chaudhary, has supported the entire case of the prosecution. In his testimony, he categorically stated that he and the accused were known to each other and that the accused, on account of domestic and personal

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needs, had borrowed a sum of ₹5,00,000/- from him, promising to repay the same within a stipulated period. In discharge of the said liability, the accused issued a cheque bearing No. 018594 dated 10.09.2013 drawn on ICICI Bank, Nehru Nagar Branch, Bhilai, for an amount of ₹5,00,000/in favour of the complainant. The said cheque, when presented for encashment, was returned unpaid with the endorsement “insufficient funds”, as proved by Ex.P-4, the return memo issued by the bank. The complainant thereafter served a statutory notice dated 01.10.2013 (Ex.P1) through registered post, which was refused by the accused and returned with the postal remark “refused”, thereby satisfying the requirement of notice under Section 138(b) of the Negotiable Instruments Act.

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The defence of the accused that the cheque was issued only for ₹20,000/to one R.B. Singh or that it was blank when signed, is not supported by any documentary or oral evidence. On the contrary, the accused has admitted his signature on the cheque during examination under Section 313 Cr.P.C., and as such, the presumption under Sections 118 and 139 of the Negotiable Instruments Act squarely operates against him. In such circumstances, the burden lies on the accused to prove that the cheque was not issued towards a legally enforceable debt, which the appellant has failed to discharge. The complainant’s testimony is consistent, reliable, and corroborated by documentary evidence such as the cheque (Ex.P-3), return memo (Ex.P-4), postal receipts (Ex.P-2), and the bank statements (Ex.P-5 to Ex.P-7). This Court finds no contradiction or infirmity in the version of P.W.1 or in the reasoning adopted by the

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learned appellate Court and the trial Court. Accordingly, this Court is of the considered view that the complainant has successfully proved the issuance of the cheque, its dishonour, service of notice, and non-payment within the statutory period. The appellant has failed to rebut the presumption of liability by any credible evidence.

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In view of the foregoing discussion, this Court finds no ground to interfere with the well-reasoned judgment of conviction and sentence passed by the learned courts below. The revision being devoid of any merit, is hereby dismissed.

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SD/-

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(Arvind Kumar Verma) JUDGE

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ashu

Shrinee Nair v. Pramod Chaudhary

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Shrinee Nair v. Pramod Chaudhary

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