Gopeshwar Singh Alias Gopi Vs the State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Rev. No. 1534 of 2019

Gopeshwar Singh @ Gopi aged about 45 years son of Shri Bhim Mahto, resident of village Beyang, P.O. Bariatu, P.S. Gola, DistrictRamgarh … … Petitioner

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Versus

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The State of Jharkhand

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Chandrawati Devi W/o Ramdhani Prasad, resident of C/o Arvind Kumar, Green Park, Sarai Tand, New Area Morabadi, P.O. Morabadi, P.S. Bariatu, 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. Laxman Kumar, Advocate For the Opp. Party No. 2 : Mr. A. K. Sahani, Advocate For the State : None ---

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07 /18.09.2024 Learned counsel for the petitioner and opposite party no. 2 are

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present.

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2. Nobody appears on behalf of the opposite party- State.

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3. This criminal revision petition has been filed for the following reliefs:

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“That in the instant Revision petition petitioner prays for appropriate order /orders, direction/ direction to set aside the Judgment dated 27-08-2019 passed in Criminal Appeal No. 231 of 2018 by the Learned Court of Sri Naveen Kumar, Judicial Commissioner, Ranchi whereby and whereunder Learned Court of Sri Naveen Kumar, Judicial Commissioner, Ranchi has been pleased to dismissed the Criminal Appeal No.231 of 2018 filed by the Petitioner and has been pleased to modify the order of conviction and order of sentence and compensation dated 16-07-2018 passed in Complaint Case No. 3177 of 2014 against the Petitioner by the Learned Court of Kumari Nitika, J.M. 1^st Class, Ranchi for the offence u/s 138 N.I. Act and has been pleased to imposed sentence of fine of Rs. 5,50000/- only by way of compensation to be paid by the accused /appellant to the Complainant/Respondent No.2. Since the Appellant is on bail, he is given nine months time from the date of Judgment to make the payment of fine of Rs.5,50000/only by way of compensation in order to give it to the complainant /respondent NO.2 by way of compensation and in case of default of said fine the accused /appellant shall undergo

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imprisonment for a period of two years and also to pay compensation of Rs. 5,50000/- only u/s 357(3) Cr.P.C.”

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4. Learned counsel for the petitioner, while assailing the impugned order, has submitted that the cheque was not issued by the petitioner, inasmuch as, the amount in the cheque was not duly filled by the petitioner. He has further submitted that the complainant has failed to prove the debt and therefore, one of the pre-conditions for convicting the petitioner under section 138 of Negotiable Instruments Act was not satisfied. He submits that on account of the aforesaid facts and circumstances, the impugned judgments are perverse and they call for interference.

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5. Learned counsel for the opposite party no. 2, on the other hand, has opposed the prayer and has submitted that before the learned Court the petitioner had taken a defence that the cheque was for an amount of Rs. 50,000/- and the cheque was misused by making it Rs.5,00,000/- . He has also submitted that the matter was sent for mediation by the learned appellate Court and the parties had settled the dispute for an amount of Rs. 5,50,000/-. Considering the aforesaid circumstances, the learned appellate Court had modified the sentence and had directed the petitioner to pay Rs. 5,50,000/- to the opposite party no. 2. He submits that time extended for making payment was to the extent of 9 months from the date of judgment of the learned Appellate Court. He has also submitted that he would have no objection if one month’s further time is granted to the petitioner to comply with the order of the learned appellate Court, but so far as the judgments passed by the learned Courts are concerned, there is no perversity calling for any interference in the revisional jurisdiction.

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6. The learned counsel for the opposite party no. 2 has further submitted that there are concurrent findings by both the learned Courts that there is no manipulation in the cheque. He has also submitted that there is presumption in connection with the issuance of cheque and there was no need for the complainant to prove the debt.

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Findings of this Court

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7. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the complainant had filed the case stating that there was friendly relationship between the husband of the complainant and the accused and the complainant had given friendly loan of Rs. 5 lakhs in cash to the accused on 28.02.2014 for construction of house of the accused. The accused had assured the complainant that he would return the amount within a period of six months. After six months, the accused did not return the amount and ultimately, he issued cheque of Rs. 5 lakhs vide cheque dated 30.08.2014. Upon presentation of the cheque on 01^st September 2014, the said cheque bounced on account of insufficiency of fund. The complainant sent legal notice on 21^st October 2014 and ultimately when the amount was not paid, the complaint case was filed.

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8. At the stage of trial, two witnesses were examined from the side of the complainant. The original cheque, cheque return memo, the legal notice and the postal receipt were marked as exhibits and one money receipt was also marked as ‘X’ for identification.

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9. The complainant i.e. CW-1 was cross-examined and she denied the suggestion of the accused person that the cheque was issued only to the extent of Rs. 50,000/- and denied that the cheque was misused by her.

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10. CW-2 claims to have known both the parties and he is a witness with regard to the transaction of money between the parties. This witness has been cross-examined and he has stated that he cannot say where the transaction of money took place and for what purpose the money was paid to the accused. He has further stated in his crossexamination that total 5 cheques were issued by the accused to Ramdhari Prasad – husband of the complainant in the police station. He denied the suggestion that due to friendly relationship with the husband of the complainant, he had given false evidence.

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11. So far as defence witnesses are concerned, three witnesses were examined on behalf of defence. The accused was examined as DW-1. He had stated that he issued a cheque of Rs. 50,000/- and the husband

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of the complainant Ramdhari Prasad had made 50,000 as 5,00,000 and presented the cheque for payment. He has stated that he took Rs. 50,000/- from Ramdhari Prasad for land business and there was a liability of Rs. 50,000/- only towards the complainant.

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This witness has also been cross-examined. He identified the photocopy of the money receipt with revenue stamp dated 11.01.2010 marked as ‘X’ which contained his signature that he took Rs. 7,50,000/- from the husband of the complainant and he shall return the same after a year. However, he has stated that he was made to write the same under fear and coercion. He has further stated that he had issued various cheques for Rs. 15,50,000/-.

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12. DW- 2 has stated that the accused had taken an amount of Rs. 50,000/- from the husband of the complainant to purchase the land. In his cross-examination, he deposed that he did not know when and where the money transaction took place as no money transaction was done before him. He went to the police station where no written note was made as to money transaction. He stated that only one filled cheque was given to the husband of the complainant and the remaining cheques remained blank.

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13. D.W. 3 has also been examined. This witness has stated that the petitioner had taken only Rs. 50,000/- from the husband of the complainant for land business and his liability was only to the extent of Rs. 50,000/- and the complainant and her husband had forged the cheque and lodged a false case. He has further stated that in the year 2010, the accused took Rs. 7,50,000/- from the husband of the complainant which was returned back to the husband of the complainant before him at his house and on demanding to return back the money receipt, he did not return the same.

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14. The learned Court, after considering the evidences on record, has considered the materials and has also held that mere pleading not guilty and stating that the cheque was misused would not amount to rebutting the presumption under section 139 of Negotiable Instruments Act. The learned Court considered the evidences and recorded the following findings:

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“9. …………………………………….

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The foremost question which comes for determination for an offense u/s 138 of NI Act is whether there was any discharge of liability or a legal debt to be done by the accused in favor of the complainant for which the accused issued the cheque. By mere reading of Section 139 of NI Act it is clear that there is a presumption that the cheque was issued in favor of the holder of the cheque that the same was issued for the discharge of legal enforceable debt or liability unless the contrary is proved. Accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence on preponderance of probabilities to prove that cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, there is no need that the accused should disprove the non existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant.

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Therefore, mere pleading not guilty and stating that the cheque was misused, would not amount to rebutting the presumption raised u/s 139 of N.I Act. In the present case the accused has neither denied of the money transaction nor issuing the cheque but as per his version he had issued only Rs.50,000 cheque which has been misused by the complainant by making Rs.50,000 as Rs.5,00,000. On perusing the cheque in question which is marked as Exhibit 1, the cheque does not seem to be a manipulated one. The accused has himself stated in his evidence that he gave filed cheque to the complainant with his signature endorsed on it. He identified the photocopy of money receipt with revenue stamp dated 11.01.2010 marked as "X" wherein his signature is endorsed and the same is in his hand writing stating that he took Rs. 7,50,000/- from the husband of the complainant which he will return after a year as well as accepted the original of the same with the complainant and this was made him to write under fear and coercion. Secondly the accused did not take any step such as loging a complaint in the court or giving a report to the police with regard to the fact that the complainant alonwith her husband had forged the cheque and misused it by lodging a false complaint against him. Defence has not produced any cogent proof in support of the defence version that the cheque in question was misused which makes it improbable that the cheque in question was not issued towards the discharge of legal liability as alleged by the complainant but at the same time strengthens the foundation fabrics

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of the present complaint case. Therefore the accused failed to raise a cogent suspicious circumstances in the version of the complainant which raises a doubt on the foundation of the present complaint case. Nothing has been proved by the accused to show that the cheque in question was misused by the complainant and that he did not have the legally enforceable liability towards the complainant.

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On the other hand the complainant in order to establish the liability has produced the original cheque bearing no. 000010 dated 30.08.14 drawn on Bank of India, Ranchi of Rs.5,00,000 bearing the signature of the accused as Exhibit 1, Cheque Return memo dated 22.09.14 marked as Exhibit 2, Legal Notice dated 21.10.14 bearing his signature and of his advocate marked as Exhibit 3, Postal Receipt marked as Exhibit 4 and Photocopy of written money receipt dated 11.01.10 in the handwriting of the accused with his signature on it which he identified it marked as X. The complainant has further filed the present complaint within the limitation period of arising the cause of action.

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Reading of the evidence on record in its entirety, would show that the evidence on record is not supportive with the innocence of the accused and as such same is liable to be dismissed out rightly. This court is of the opinion that the defence set up is neither definitive nor consistent with innocence of the accused. It is the liability of the accused to bring positive evidence, in the wake of denying the liability by bringing evidence showing that accused has no liability towards complainant and in the present complaint the accused has failed. Having considered the entire evidence, complainant successfully proved all the essential requirements of section 138 of the NI Act. Hence, the accused person Gopeshwar Singh @ Gopi is guilty for the offense punishable under section 138 of NI Act and his respective bail bonds are hereby cancelled and he is taken into judicial custody…”

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15. So far as the learned Appellate Court is concerned, during the pendency of the appeal, the matter was referred for mediation and at the stage of mediation, the petitioner had agreed to pay Rs. 5,50,000/to the opposite party no. 2 in installment. The last installment of Rs. 1,50,000/- was to be paid by 05.08.2019. After the mediation, the matter was placed before the learned Court and the Court observed that the petitioner was on bail and gave 9 months’ time from the date of the appellate Court’s judgment to pay fine of Rs. 5,50,000/- and modified the sentence with a further rider that if the amount is not

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paid, the petitioner would undergo imprisonment for two years and also pay compensation of Rs. 5,50,000/-.

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16. This Court finds that the learned trial Court had appreciated all the materials on record and had come to a clear finding that the petitioner was guilty for offence under section 138 of Negotiable Instruments Act. The learned Court also considered the provisions of section 139 of Negotiable Instruments Act.

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17. This Court further finds that the petitioner had admitted his liability to the extent of Rs. 50,000/-, but the evidences on record including the evidence of the accused himself revealed that the petitioner had taken an amount of Rs.7,50,000/- from the complainant. This has come in the evidence of DW- 3.

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18. This Court finds that the petitioner did not succeed in rebutting the presumption under section 139 of Negotiable Instruments Act and further, at the appellate Stage, the petitioner did not argue the case on merits, rather the matter was sent for mediation. Subsequently, the learned appellate Court disposed of the matter in terms of the medication report by granting 9 months’ time to pay the amount with a default clause.

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19. Considering the totality of facts and circumstances of this case, this Court finds no illegality or perversity in the impugned judgments passed by the learned trial Court as well as the learned appellate Court.

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20. However, with consent of the learned counsel for the opposite party no. 2, the time as mentioned in the appellate Court’s judgment for payment of the fine amount of Rs. 5,50,000/- as compensation to the opposite party no.2 is extended till 21^st October 2024. The petitioner and the opposite party no. 2 shall appear before the learned Court on 21^st October 2024.

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21. If the petitioner does not deposit the amount, the judgment passed by the learned Appellate Court will take its effect and the learned Court shall proceed against the petitioner in accordance with law so that he serves the sentence/fine/compensation in terms of the appellate court’s judgement .

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22. This criminal revision petition is accordingly disposed of.

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

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24. Let a copy of this order be communicated to the court

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