Partly allowed

Lalita Devi v. the State of Jharkhand

Jharkhand HC11 Jul 2023Cr.Rev./123/2018

Case brief

AI extract

What is this about?

Revision application challenged N.I. Act conviction for cheque dishonour. Court upheld conviction but quashed compensation and treated custody period as sentence, dismissing bail bond liabilities.

What did the court decide?

Conviction upheld; custody period treated as sentence; no compensation or fine awarded; petitioner discharged from bail bond liabilities; revision application otherwise dismissed.

Lalita Devi Vs the State of Jharkhand — Cheque Dishonour | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 123 of 2018

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Lalita Devi ..… Petitioner

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Versus

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1.The State of Jharkhand 2.Prabhu Nath Singh ….. Opp. Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD

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For the Petitioner : Mr. Sanjay Prasad, Advocate Mr. Rajeev Lochan, Advocate

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For the State : Mr. Vishwanath Roy, A.P.P. For the O.P. No.2 : Mr. Anish Kumar Mishra, Advocate ---------

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Oral Order in Court 16/11.07.2023 This criminal revision application has been filed on behalf of the petitioner challenging the judgment dated 21.11.2017, passed by Shri Shiv Sharan Dubey, learned Sessions Judge, Seraikela in Criminal Appeal No.17/2017, by which the Criminal Appeal has been dismissed thereby affirming the judgment of conviction and order of sentence dated 24.4.2017 passed by Shri Onkar Nath Choudhary, learned C.J.M., Seraikella-Kharswan in connection with P.C Case No.123 of 2014/ T.R. No. 02/2017, by which the petitioner has been convicted for the offence under section 138 of the N.I. Act and sentenced to undergo R.I. for six months and to pay compensation of Rs.3,85,000/- (Rupees Three lac eighty five thousand) to the complainant/O.P. No.2.

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2. The case of the complainant-O.P. No.2, in brief, is that the accused-petitioner and her husband are neighbours of the complainant (O.P. No.2) and are known to each other. The accused-petitioner approached the complainant (O.P. No.2) and asked for friendly loan on the pretext of the marriage of her daughter in the month of June, 2013. The complainant (O.P. No. 2), who was in good terms with the accused-

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Petitioner gave Rs. 3,50,000/- as loan to the accusedPetitioner and accused-Petitioner issued a post dated cheque for payment of loan vide cheque No. 000581 dated 10.02.2014 drawn on I.D.B.I. Bank Gamharia Samarat Complex Branch. The complainant (O.P. No. 2) deposited the said cheque in his Bank i.e. UCO Bank, Gamrahia Branch on 11.02.2014 for encashment, but the cheque was dishonoured with reason “Payment stopped by drawer” vide bank Memo dated 14.02.2014. The complainant (O.P. No. 1) informed the accusedPetitioner regarding dishonor of the cheque to which the accused-Petitioner requested the complainant (O.P. No.1) to deposit it again in the last week of March 2014. Accordingly, the complainant (O.P. No. 1) deposited the said cheque again in the same branch on 26.03.2014, but again cheque was dishonoured and complainant (O.P. No. 2) was informed vide Bank Memo dated 27.03.2014 showing reason Ïnsufficiency of fund”. After that, on 24.04.2014 a legal notice to the accused (appellant) was issued by the complainant (O.P. No.2) through his Advocate by registered post with A.D. demanding payment of cheque amount i.e. Rs.3,50,000/- within 15 days, but no payment was made by the accused-Petitioner even after receiving the notice. Hence, the complainant (O.P.No.2) filed a complaint case on 24.05.2014 before the court of C.J.M., Seraikella being P.C. Case no. 123/14 and after enquiry, the court of learned C.J.M. found sufficient materials for the offences punishable under Section 138 of the N.I. Act.

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3. Mr. Sanjay Prasad, learned counsel, assisted by Shri Rajeev Lochan, learned counsel has submitted that the impugned judgments and order passed by the learned courts below are not sustainable in the eye of law as learned Courts below have not properly appreciated the evidence. It is submitted that it is an admitted case that the cheque was not filled up by the petitioner in her own handwriting, rather the signature of the petitioner was obtained by the Complainant-O.P. No. 2 in absence of her husband. It is submitted that even the complaint case has been filed on false and concocted ground as the daughter of the petitioner was already married in the year 2011 on 18.11.2011, whereas as per the averments made in the complaint case, the petitioner is allegedly said to have taken money from the Complainant-O.P. No. 2 in the month of June, 2013 on the pretext of marriage of her daughter. It is submitted that during her evidence, C.W.1, i.e. wife of the complainant has stated that she was not present at the time of payment of money. It is submitted that even the complainant, examined as CW 2, has admitted during his cross examination that the petitioner was not aware of English language and she knows only Hindi and she has not put any date on the cheque signed by her and therefore, the complainant had cheated the money from the petitioner and hence the petitioner may be acquitted and the impugned judgments may be set aside and this Criminal Revision Application may be allowed.

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4. On the other hand, learned A.P.P. has opposed by submitting that by the judgment of affirmation the appellant court has dismissed the appeal filed by the petitioner thereby affirming the judgment of conviction and order of sentence passed by the learned trial court. It is submitted that the petitioner has taken a loan of Rs.3,50,000/- from Complainant-O.P. No. 2 and the complainant-O.P. No.2 and his witnesses have supported the case of the complainant and hence this Criminal Revision Application may be dismissed.

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5. Leaned counsel for O.P.No. 2, after adopting the submission of the A.P.P., has further submitted that petitioner has not denied her signature on the cheque. It is submitted that the petitioner has got three daughters and one son and money was taken for performance of the marriage of her daughter in the year 2013. It is submitted that C.W.1 is the wife of O.P. No. 2, who has fully supported the case of handing over of the money. It is submitted that C.W.2 is the complainant himself, who has also supported the case. It is submitted that defence witness, i.e. D.W.1 has merely stated that the marriage of the daughter of the petitioner was performed on 18.11.2011 itself and there is no evidence that the petitioner took the loan in the year 2013 for performance of the said marriage. It is submitted that on the basis of aforesaid fact, the impugned judgment may be upheld and this Criminal Revision Application may be dismissed.

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6. Perused the lower court record of this case and considered the submission of both the sides.

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7. It transpires that the O.P. No. 2 had filed complaint case bearing P.C. Case No. 123/2014 on 24.5.2014 stating therein that the petitioner had given Cheque No. 000581 dated 10.2.2014 of I.D.B.I Bank, Gamharia Samrat Complex Branch for returning the friendly loan of Rs. 3,50,000/- taken for the marriage of her daughter in the month of June, 2013. Thereafter, when O.P. No.2 presented the said cheque before the Bank on 11.2.2014, then it was dishonoured on 11.2.2014 due to the reason “payment stopped by drawer” vide Bank memo dated 14.2.2014. Thereafter, the cheque was again deposited on 26.3.2014 but it was again dishonoured on 27.3.2014 due to the reason “fund insufficient”. Thereafter, legal notice was sent on 24.4.2014 and complaint case was filed on 24.05.2014.

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8. It transpires that cognizance was taken on 15.12.2014 by the learned C.J.M., Saraikella under Section 138 of the N.I. Act. Thereafter, the petitioner appeared and she was granted bail on 23.02.2015. 9. Thereafter, substance of accusation was explained to the petitioner for committing the offence under Section 138 of the N.I. Act and to which she pleaded not guilty and claimed to be tried. 10. During trial the complainant has got examined two witnesses, who are as follows:

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(i) C.W.1 is the complainant himself,

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(ii)C.W.2 is Kiran Devi, i.e. the wife of the complainant.

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11. The complainant has got marked the following documents as Exhibits:-

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(i) Exhibit 1 is Cheque No. 000581 dated 10.2.2014,

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(ii) Exhibit 2 is return memo dated 27.3.2014,

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(iii) Exhibit 3 is the Legal Notice dated 24.4.2014,

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(iv) Exhibit 4 is the postal receipts of the legal notice dated 24.4.2014,

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(v) Exhibit 5 is the acknowledgement of the service of notice and

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(vi) Exhibit 6, 6/1 and 6/2 are the signatures of the complainant on three pages of the complaint petition.

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12. Thereafter, the petitioner was examined under Section 313 Cr.P.C. on 07.6.2016 and to which she denied all the circumstances put forth before her.

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13. The petitioner has got examined one witness, Ravi Kumar as D.W.1 and during his examination-inchief he stated that on 18.11.2011 marriage of Rani Kumari was solemnized in Sri Sri 108 Baba Tarkeshwar Nath Mahadev Mandir Samiti, Tarapur, Munger. 14. Exhibit A is the marriage certificate dated 18.11.2011 issued by Sri Sri 108 Baba Tarkeshwar Nath Mahadev Mandir Samiti, Tarapur, Munger. 15. It transpires from the deposition of Complainant-O.P. No.2 that he has fully supported his case and stated that the petitioner had issued cheque to him though she was alone and she was not aware of English language.

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16. It further transpires from the evidence of C.W.2 i.e. the wife of the complainant, in para 6 of her cross examination, that cheque was issued by the petitioner in which she has merely put her signature and had not filled the amount. It also transpires from the cross examination of C.W.1 that the petitioner has only put her signature on the cheque and had not mentioned any date and she has no knowledge of English language.

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17. The contention of the complainant appears to be contradictory in view of the complaint petition that the amount in question, i.e. Rs.3,50,000/-was obtained on account of marriage of the daughter of the petitioner as Ext. A, i.e. the certificate issued by the Mandir Samiti reveals that marriage of daughter of the petitioner, namely Rani Devi was performed on 18.11.2011,

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18. From perusal of record, it further transpires that after dismissal of the appeal the petitioner was in custody, i.e she surrendered on 22.2.2018 and she was released on bail vide order dated 08.5.2018 passed by the Co-ordinate Bench of this Court and she was also directed to deposit Rs. 50,000/-. Thereafter, she has deposited Rs. 50,000/- and furnished bail bonds on 31.5.2018 and thus, she has remained in custody for more than three months.

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19. From the facts of the case it would appear that the petitioner has not denied her signature, but O.P. No. 2 appears to have taken advantage of her illiteracy and the petitioner has also remained in custody for more than three months also.

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20. On the facts and in the circumstances of this case, the conviction of the petitioner u/s 138 of the N.I. Act is upheld. However, the sentence can be modified and hence the period undergone by the petitioner in custody shall be treated as period of sentence and further the petitioner is not required to pay any compensation or fine to the O.P. No. 2 and the petitioner is also discharged from the liabilities of her bail bond.

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21. This Criminal Revision Application is dismissed with the observation mentioned above.

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(Sanjay Prasad, J.)

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s.m.

Lalita Devi v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Lalita Devi v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

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