Dismissed

Kusheshwar Prasad Alias Kusheshwar Thakur v. the State of Jharkhand

Jharkhand HC19 Apr 2024Cr.Rev./244/2019

Case brief

AI extract

What is this about?

Conviction under Section 138 NI Act for a dishonoured Rs. 3 lakh loan cheque was challenged in revision on the plea that five cheques issued to a third person were misused by the complainant. The High Court found the accused's own admissions demolished this defence and dismissed the revision, holding there is no scope for reappreciation of evidence in revisional jurisdiction.

What the court decided

AI extract

Kusheshwar Prasad Alias Kusheshwar Thakur Vs the State of… — Cheque Dishonour | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 244 of 2019

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Kusheshwar Prasad @ Kusheshwar Thakur, aged about 64 years, son of Late Hari Nandan Thakur, resident of Pahalwan Complex, S.P. Road, Ganesh Nagar, Bagbera, P.O. and P.S. Bagbera, Town Jamshedpur, District East Singhbhum … … Petitioner

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Versus

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State of Jharkhand

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Angad Rai son of Late Saryu Rai, resident of Bajrang Tekri Bagbera, D.B. Road Near Vishwakarma Mandir, P.O. Tata Nagar P.S. Bagbera Town Jamshedpur, District East Singhbhum

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… … Opp. Parties

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Anish Kumar Mishra, Advocate For the State : Mrs. Ruby Pandey, A.P.P. For the O.P. No. 2 : None

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07 /19.04.2024 Learned counsel for the petitioner and learned counsel for the

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State are present.

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2. Nobody appears on behalf of the opposite party No. 2 in spite of service of notice.

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3. This criminal revision has been filed for setting aside the judgment and order dated 28.01.2019 passed in Cr. Appeal No. 159 of 2018 by the court of learned Sessions Judge, East Singhbhum, Jamshedpur whereby the criminal appeal filed by the petitioner has been dismissed.

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4. The petitioner has been convicted and sentenced by learned Judicial Magistrate, 1^st Class, Jamshedpur in connection with C/1 Case No. 3631 of 2014 and has been held guilty for committing offence u/s 138 of Negotiable Instrument Act, 1881 and has been sentenced to undergo simple imprisonment for three months and pay a fine of Rs. 4,25,000/- as compensation.

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5. The learned counsel for the petitioner while assailing the impugned judgments passed by the learned Trial court as well as the appellate court has submitted that the sole point involved in the present case is that petitioner had issued five cheques to one Mundrika Yadav and those cheques have been misused by the complainant of

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the case and this aspect of the matter has not been properly considered. The learned counsel has referred to Annexure-2 and 3 to the memo of revision which were exhibit A and B before the learned trial court and submits that these two documents have not been properly considered by the Courts and therefore the impugned judgments are perverse and call for interference.

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6. He submits that exhibit A is informatory petition filed by the wife of the petitioner which was dated 13.09.2013 in the court of learned Chief Judicial Magistrate which was numbered as Informatory Petition No. 908 of 2013 wherein the wife of petitioner had expressed her apprehension that the cheques mentioned in the said informatory petition which includes the cheque involved in the present case might be misused.

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7. Learned counsel has also submitted that the legal notice dated 01.08.2013 issued on behalf of accused-petitioner to said Mundrika Prasad has also not been properly considered. As per the case of the complainant, the accused had a cordial and friendly relationship with the complainant. On 06.01.2014 the accused had taken friendly loan of Rs. 3 lacs and assured that he would return the same and the accused issued a post-dated cheque bearing No. 000037 of Rs. 3 lacs on 04.07.2014 drawn on Bank of India, Jugsalai Branch, Jamshedpur but the complainant did not deposit the cheque immediately at the request of the accused. However, he presented the same on 19.01.2014 for encashment but the cheque was dishonored due to insufficient fund in the account along with return memo dated 21.08.2014. The complainant sent legal notice through his lawyer on 15.09.2014 by registered post with A/D informing the fact about dishonor of cheque and demanded cash payment within 15 days from the date of the receipt of the notice but the accused gave a reply on 30.09.2014 that he did not know the complainant and did not return the aforesaid amount. The complaint case was filed and cognizance was taken u/s 138 of the Negotiable Instruments Act 1881 on 03.12.2014. The substance of accusation was explained and the accused pleaded not guilty and thereafter the trial proceeded.

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8. After conclusion of evidence the complainant was examined on 11.01.2016 and the statement was recorded. The accused claimed innocence and the defence was in total denial of the occurrence. The complainant had examined only one witness i.e. himself and following documents were exhibited.

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Ext. 1	Cheque No. 000037 of Rs. 3,00,000/- (with objection)
Ext. 2	Opposite slip dated 19.08.14 (without objection)
Ext. 3	Cheque return memo dt. 21.8.14 (without objection)
Ext. 4	Copy of legal notice dt. 15.09.14 (without objection)
Ext. 4/1	Postal receipt (without objection)
Ext. 5	Copy of reply notice dt. 30.09.14 (without objection)

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9. The complainant was duly cross examined and during his cross examination he has also admitted that he knew the accused since childhood.

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10. The accused examined two defence witness. D.W. 1 is the accused himself and D.W. 2 is his wife. At the stage of defence the accused denied the allegation and stated that the cheque involved in the present case and four other cheques were issued to another person namely Mundrika Yadav and deposed that the amount was taken for the marriage of his son and the cheque which he gave to Mundrika Yadav was given to his relative Angad Rai, the complainant, which has been misused and bounced. This witness has also been duly cross examined and in paragraph 23 of his cross examination this witness has stated that he had not taken money from anybody except the complainant. The other defence witness i.e. wife of the accused was also cross examined and in paragraph 13 she deposed that she and her husband knew the complainant very well.

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11. The learned trial court considered the materials on record and convicted the petitioner for offence u/s 138 of the Negotiable Instruments Act and observed that all the document produced by the complainant were exhibited without any objection. The learned trial court disbelieved the stand taken by the accused that the cheques

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issued in favour of Mundrika Yadav were misused by the complainant.

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12. The appellate court also considered the materials on record and dismissed the appeal. The appellate court also considered the presumption in terms of Section 118 read with Section 139 of the Negotiable Instruments Act and observed that the presumption can be rebutted on the principles of preponderance of probabilities by just infusing the element of doubt in the prosecution case but the complainant had come up with sufficient evidence which qualifies the requirement of Section 138 and basic ingredients were duly fulfilled and the court was only to consider the version of the defence.

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13. The learned court recorded that the defence had specific case that the accused had no acquaintance with the complainant. The learned court considered the reply notice which was Exhibit-5 which said that the complainant was a stranger but this aspect of the matter was completely given a go bye by admitting that the complainant was very well known. This admission was not only by the accused but also by his wife. The second part of the defence was that the cheques were blank cheques issued as security to one Mundrika Yadav. This aspect of the matter was also rejected by the learned appellate court by observing that the complainant in his complaint petition and also in his evidence had come up with the very categorical case that the cheque was filled up by the accused and handed over to him and in the complaint petition at para 3 it has also mentioned that the accused issued a post -dated cheque in favour of the complainant and there was no evidence on record to show that the cheque was not in the handwriting of the accused. No effort was taken by the accused to show that his signature and other content of the cheque was not in his handwriting. The learned appellate court rejected the aforesaid contention of the accused by citing reasons. The accused in his evidence has categorically stated that he had taken loan from the complainant which demolished the theory of the accused regarding non-existence of legally enforceable debt or other liability against the accused . The plea that he had instructed the bank to stop payment was

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also not proved by the defence as the cheque was dishonoured on account of insufficient fund and not on account of stop payment. The finding of the learned appellate court is quoted as under:-

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“ The mandate of law is not in dispute that defence is not required to rebut the presumption on the principle to prove the case beyond shadow of reasonable doubt rather the presumption contained U/s 118 read with Section 139 of the N.1. Act can be rebutted on the principle of preponderance of probabilities i.e. by just infusing an element of doubt in the prosecution case. So far the complainant is concerned he has to come up with sufficient evidence which qualifies the requirement to section 138 of the N.I. Act. A cheque is there. Cheque was presented within its period of validity. Cheque return memo is there and within one month the demand notice was sent. Reply to the demand notice was sent on behalf of the accused which is dated 30/09/2014 and the complaint was filed on 18/10/2014. Thus the complaint is also within the statutory period as required under the law. Therefore, now the court is only required to consider the defence version of the accused. The defence has specific case that he was completely having no acquaintance with the complainant. This as per his reply notice which is Ext. 5 says that the complainant is a stranger for the accused. This aspect of the defence was given a complaint go-bye by admitting that he knows the complainant very well. This admission is not only by the accused but also by his wife. The second part of the defence case is that the cheques were blank cheques issued as security to one Mudrika Yadav. The complainant in his complaint petition as also in his evidence has come up with a very categorical case that the cheque was filled up by the accused and handed over to him. This has come up at complaint petition at para 3 of the complaint petition wherein it is stated that accused issued a post dated account payee cheque in favour of the complainant and in his evidence the complainant has stated at para 3 categorically mentioning that in presence of the complainant the accused filled up the cheque and handed over the same to the complainant. There is no evidence on record to show that the cheque is not in writing of the accused. No efforts has been taken by the accused to show that apart his signature the other contents of the cheque is not in his hand writing, In the absence of any rebuttal to this evidence which was very specific at para 3 of the examinationin-chief of the complainant that cheque is in the hand writing of the accused. This court is compelled to conclude that second plea taken by the accused that the cheque was a blank cheque given to Mudrika Yadav wherein the name of the payee as well as the amount and date every thing was got to be wrongly filled up by Mudrika Yadav. This plea also fails which is the most important and substantial plea on behalf of the appellant. Coming on the question of liability. The accused in his evidence has categorically stated that he had taken loan from the complainant and none else. This demolishes the theory of the appellant of non-existence of a legally enforceable debt or other liability. Lastly the plea that he had instructed his banker to stop payment is also not proved by the defence as definitely the

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cheque has been dishonored for the reason of funds insufficient and not for the reason that payment was stopped by the drawer of the cheque.”

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14. This Court finds that the both the learned courts have passed well-reasoned order considering every aspect of the matter and all defence which has been taken by the petitioner have been rejected. The fact remains that the accused had himself admitted in his evidence that he had taken loan from the complainant and also the fact that the accused and the complainant were known to each other.

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15. This court finds that all the basic ingredients for offence u/s 138 of the Negotiable Instruments were fully satisfied and no reliable material was produced by the defence to dispel the presumption u/s 118 read with Section 139 of the Negotiable Instruments Act. This court also finds that the plea which has been sought to be raised by the petitioner by referring to the informatory petition and legal notice was not even referred to in the reply to the legal notice which was given by the petitioner to the complainant and was exhibited by the complainant without any objection as Exhibit-5. The plea of the accused that the complainant was not known to him was completely demolished by his own evidence and the existence of legally payable debt was also admitted in his cross examination.

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16. The law is well settled that there is no scope for reappreciation of evidence before the court and come to a different finding in revisional jurisdiction.

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17. In view of the aforesaid findings, this court finds no illegality or perversity in the judgments passed by the learned courts. Accordingly, this petition is hereby dismissed.

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18. The bail bond furnished by the petitioner stands cancelled.

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19. Let this order be communicated to the court concerned through FAX.

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(Anubha Rawat Choudhary, J.)

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Binit

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Kusheshwar Prasad Alias Kusheshwar Thakur v. the State of Jharkhand

Case brief

What is this about?

What the court decided

Kusheshwar Prasad Alias Kusheshwar Thakur v. the State of Jharkhand

Case brief

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