Md Kaisar Alam Vs The State Of Jharkhand And Anr.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Rev. No. 1212 of 2016

Md. Kaisar Alam @ Md. Kaisher Alam son of Md. Jamaluddin Resident of Churi Tola Kanke, P.O. and police station Kanke, District- Ranchi … … Petitioner

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Versus

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The State of Jharkhand

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Md. Khurshid Alam son of Late Haji Abdul Mannan Resident of Patra Toli, Kanke, P.O. and police station Kanke District Ranchi

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… … Opposite Parties

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Chandan Kumar, Advocate For the State : Ms. Priya Shrestha, Spl. PP For the O.P. No. 2 : Mr. Samir Kumar Lall, Advocate ---

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10 /27.08.2024 Heard the learned counsel for the parties.

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2. This criminal revision petition has been filed for the following

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reliefs:

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"That the instant revision application is directed against the Judgment and order of conviction dated 20.12.2014, passed by Sri Himanshu Shekhar Jha learned Judicial Commissioner VI, Ranchi in Cr. Appeal No.283 of 2012/Trial No. 52 of 2014, whereby and where under the appeal filed by the petitioner has been dismissed. The aforesaid Criminal appeal has been filed against Judgment of conviction and order of sentence dated 24.9.2012 passed by learned Judicial Magistrate, Ist Class, Ranchi in complaint case No. 1727 of 2010 T.R. No. 1048/2012 whereby and where under the petitioner has been found guilty for the offence punishable under section 138 of the Negotiable Instrument Act and has been sentenced to undergo simple imprisonment for three months and further directed to pay Rs. 2,00,000 to the complainant as a compensation under section 357 (3) of the Cr.P.C.."

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3. Learned counsel for the petitioner submits that though both the learned Courts have given concurrent findings while convicting the petitioner, but the legally payable debt was not proved by the complainant, inasmuch as, the agreement of sale with regard to the property was not produced and exhibited by the complainant. He submits that on this ground, the impugned judgments call for

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interference. He submits that it was for the complainant to prove that there was a legally payable debt.

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4. Learned counsel appearing on behalf of the opposite party no. 2, on the other hand, has submitted that both the learned Courts have given concurrent findings after appreciating the materials on record. He has further submitted that once a cheque is issued, there is a presumption in favour of the complainant and the said presumption was not dispelled by the accused even on the touchstone of preponderance of probability. He submits that mere non-filing of the agreement of sale is not sufficient. The entire transaction was duly mentioned and narrated by the complainant in his evidence.

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5. After hearing the learned counsel for the parties, this Court finds that it was the specific case of the complainant before the learned Court that the complainant had given advance money of Rs. 1,80,000/- to the accused for purchase of land, but the accused failed to execute the sale-deed. The complainant demanded his money back and then the accused had issued two cheques i.e. cheque dated 17.07.2010 for Rs. 80,000/- and another cheque dated 24.07.2010 amounting to Rs. 1,00,000/-; both drawn on State Bank of India. Upon presentation of the said cheques, the same were dishonoured due to reason “insufficient fund”. The cheque return memos dated 17.07.2010 and 24.07.2010 were received by the complainant on 19.07.2010 and 26.07.2010 respectively. Subsequently, on request of the accused the complainant again presented the cheques, but the same were again returned with a note "insufficient fund" vide return memos dated 19.08.2010 which were received by the complainant on 20.08.2010. Thereafter, the complainant sent legal notice dated 25.08.2010 to the accused through speed post. In spite of that, when the accused did not make payment of the cheque amount, the complaint case was filed.

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6. The records reveal that in support of the complaint case, the complainant examined altogether 3 witnesses. The complainant was examined as CW-1. The cheques were exhibited as Exhibit- 1 and 1/1. The cheque return memos were exhibited as Exhibit-2 and 2/1.

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Subsequent cheque return memos were marked as Exhibit- 2/2 and 2/3. Legal notice dated 25.08.2010 was marked as Exhibit-3 and postal receipt through which the legal notice was sent was marked as Exhibit-4.

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7. The complainant supported his case in his evidence and he was duly cross-examined. In his cross-examination, he has stated that he had not filed the agreement of sale, but the agreement of sale was duly prepared for the land situated in Khata No. 291 Plot No. 1193 measuring 500 sq. ft. The other two witnesses i.e. CW – 2 and CW- 3 had fully supported the case of the complainant and during crossexamination, they deposed that the complainant had paid the money in advance. The defence did not lead any evidence.

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8. The learned Trial Court considered the materials on record and was of the view that the complainant has complied with all the necessary time limits which are required for prosecution under section 138 of Negotiable Instruments Act and held that the basic ingredients for offence under section 138 of Negotiable Instruments Act were proved beyond all reasonable doubt and convicted the accused.

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9. So far as the appellate Court is concerned, the learned appellate Court also considered the materials on record and upheld the conviction of the petitioner.

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10. This Court is of the considered view that merely because the agreement of sale was not exhibited, the same was not fatal to the case of the complainant in view of the legal presumption with regard to issuance of cheque. The records reveal that the petitioner being the accused did not take any step to dispel the legal presumption even on the touchstone of preponderance of probability either through the cross examination of the witnesses or through leading any defence evidence. The issuance of cheque and its bouncing stood duly proved and the other ingredients for constituting offence under section 138 of Negotiable Instruments Act were also proved. The argument of the petitioner that it was for the complainant to prove the legally payable debt in order to convict the petitioner is devoid of any merits in view

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of the legal presumption drawn in favour of the complainant in terms of section 139 of Negotiable Instruments Act.

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11. This Court finds that both the learned Courts have considered the materials on record and have convicted the petitioner. The learned counsel for the petitioner has not been able to make out any ground to interfere with the impugned judgment of conviction of the petitioner under section 138 of Negotiable Instruments Act. The scope of interference in revisional jurisdiction is very limited. The impugned judgements are well reasoned based on materials on record. There being no illegality, perversity or material irregularity in the impugned orders of conviction, this Court finds no reasons to interfere with the impugned judgements. Accordingly, this criminal revision petition is hereby dismissed.

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12. Pending interlocutory application, if any, is closed.

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13. Let a copy of this order be communicated to the court concerned through ‘FAX’.

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14. Let the records received from the learned Court be sent back to the Court concerned forthwith.

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(Anubha Rawat Choudhary, J.)

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Pankaj

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Md Kaisar Alam v. The State Of Jharkhand And Anr.

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Md Kaisar Alam v. The State Of Jharkhand And Anr.

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