Md Kaishar Alam Vs The State Of Jharkhand And Anr.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Rev. No. 1227 of 2016

Md. Kaishar 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. Bashir son of Late Md. Abdul Latif Resident of Kalal Toli, Kanke, P.O. G.P.O. police station Lower Bazar 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 : Mr. Jitendra Pandey, APP For the O.P. No. 2 : Mr. Rajesh Kumar, Advocate : Mr. Amit Kumar, Advocate : Mr. Manindra Kr. Sinha, 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 21.9.2015 passed by Sri Swarn Shanker Prasad learned Additional Judicial Commissioner VII, Ranchi in Cr. Appeal No.156 of 2012, 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 2.6.2012 passed by Sri Shekhar Kumar learned Judicial Magistrate, Ist Class, Ranchi in complaint case No. 1981 of 2007 T.R. No. 956 /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 one year and further directed to pay Rs.1,00,000 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 count, 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 and considering the facts and circumstances of this case, this Court finds that it was the specific case of the complainant that an agreement of sale of land was entered into with the accused and the complainant paid advance amount of Rs. 1,41,000/-. A further amount of Rs. 24,700/- was paid to the accused for the purposes of construction of the boundary wall on the land, but in spite of repeated requests, the accused did not register the land in favour of the complainant and upon request of the complainant, he returned the money by issuing cheque on 10.08.2007 for a sum of Rs. 80,000/- drawn on Bank of India. Upon presentation, the said cheque was dishonoured on account of insufficient fund vide cheque return memo dated 10.10.2007. The matter was informed to the accused who asked the complainant to wait for some time and ultimately, legal notice was sent. Upon failure of the accused in paying the amount, the complaint case was lodged. 6. In order to prove his case, the complainant examined two witnesses including himself as CW- 2. The cheque was marked as Exhibit- 1. The cheque return memo was marked as Exhibit- 2. The legal notice dated 25.10.2007 was marked as Exhibit – 3. The postal receipt was marked as Exhibit- 4 and the acknowledgement card was marked as Exhibit- 5 which was dated 29.10.2007.

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7. So far as defence is concerned, no evidence was adduced from the side of the defence.

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8. The witnesses were duly cross-examined. It was the specific case of the defence before the learned Trial Court that the complainant should have filed a suit for specific performance of contract and that it was not proved that the money was given by the complainant to the accused in terms of the agreement for sale and thus, debt or liability could not be proved by the complainant against the accused.

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9. The learned Court considered the materials on record and was of the view that the basic ingredients for constituting offence under section 138 of Negotiable Instruments Act, 1881 were duly proved. The learned Court also took into consideration the legal presumption in favour of the complainant in terms of section 139 of Negotiable Instruments Act and recorded that the accused has not been able to rebut the legal presumption and ultimately, convicted the accused/petitioner.

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10. The learned appellate Court also considered the materials on record and upheld the conviction of the petitioner.

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11. This Court finds that both the learned Courts have considered the materials on record and have upheld the conviction of the petitioner for offence punishable under section 138 of Negotiable Instruments Act and have passed orders for giving compensation to the extent of Rs. 1 lakh against dishonour of cheque amounting to Rs. 80,000/-.

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12. The argument of the petitioner that the complainant has not been able to prove legally payable debt is devoid of any merit in view of the fact that there is a legal presumption in terms of section 139 of Negotiable Instruments Act and it was for the accused to dispel the legal presumption even though on the touchstone of preponderance of probabilities. The accused having failed to discharge his initial onus, has been rightly convicted by the learned Courts.

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13. The impugned judgements are well reasoned and are based on appreciation of materials on record and does not suffer from any perversity, illegality or material irregularity calling for interference in revisional jurisdiction of this court . This Court is of the view that there is no scope for reappreciation of materials on record in revisional

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Pankaj

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jurisdiction in absence of any perversity or material irregularity. No ground for interference has been made out and accordingly, this criminal revision petition is hereby dismissed.

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

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

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

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(Anubha Rawat Choudhary, J.)

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

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

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Md Kaisar Alam Vs The State Of Jharkhand And Anr.