Ansar Qureshi Son of Late Shri Shahbuddin Qureshi Vs Ritesh Patni Son of Shri S.C. Jain

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S.B. Criminal Appeal (Sb) No. 2006/2022

Ansar Qureshi Son Of Late Shri Shahbuddin Qureshi, Resident Of Pilot No. 320, 321, 322 Vasundhara Colony, Gopalpura, Bypass Jaipur

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----Appellant

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Versus

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1. Ritesh Patni Son Of Shri S.c. Jain, Resident Of B-5, Murtikala Colony, Opposite Hotel Tarun Gopalpura, Bypass Jaipur

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Rudraksh Land Developers And Associates, Through Its Proprietor / Authorised Signatory B-5, Murtikala Colony, Opposite Hotel Tarun Gopalpura, Bypass Jaipur

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----Respondents

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For Appellant(s)	: Mr. Ashvin Garg
For Respondent(s)	: Mr. Vijay Singh Yadav, PP
	None present for respondent Nos. 1 and 2

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order

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17/04/2025

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Instant appeal is preferred by appellant complainant aggrieved from judgment of acquittal dated 03.08.2022 in criminal case No.914/2015 passed by learned Metropolitan Magistrate (NI Act Cases) No.13, Jaipur Metro-II whereby respondents accused were acquitted from charge under Section 138 NI Act.

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Aggrieved from judgment of acquittal S.B. Criminal Leave to Appeal was preferred by appellant complainant and on 20.09.2022 a Co-ordinate Bench has allowed leave. After registration of criminal appeal, service upon respondents accused was effected by publication in Dainik Bhaskar (Daily Newspaper) Edition dated 10.08.2023. The respondents remained absent despite service of notice.

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Learned counsel for appellant while relying upon ground of appeal submitted that respondent who is proprietor/authorized signatory of Rudrakash Land Developers and Associates has issued two cheques of ₹15 lacs each and same were dishonoured. He further submitted that after dishonour of cheque a legal notice was sent and accused has not made any payment in pursuant to legal notice. He further submitted that respondent accused has entered into a compromise and same was also exhibited by him. He further submitted that learned trial court ignoring the evidence about business transaction and admission has acquitted the respondent accused. He referred tactics adopted by respondent accused in delaying the trial and submitted that the admission of respondent accused is sufficient to presume that the cheques were issued against a legal liability, which were dishonoured due to insufficient funds in account of respondents. At last he submitted that the judgement of trial court is not only perverse and illegal, but same was passed to help the respondent accused.

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Heard learned counsel for appellant and learned Public Prosecutor. Perused the record.

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The appellant complainant has filed a complaint under Section 138 NI Act after dishonour of two cheques of ₹15 lacs each, and subsequent non-payment by respondent after notice. On the basis of complaint and evidence, an order of cognizance was passed on 11.12.2015. After securing presence respondent accused appellant PW-1 examined himself to support the case of prosecution, who exhibited 11 documents in his support. The

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accused was examined under Section 313 Cr.P.C. and submitted that he will pay remaining amount. On 08.05.2018, the trial court has disposed of criminal case by holding respondent accused as guilty and awarded sentence of imprisonment of one year with fine of ₹34,90,000/- to respondent accused. Aggrieved from judgment of conviction, an appeal No.28/2018 (604/2018) was preferred and dissatisfied complainant has also preferred criminal appeal No. 30/2018 (714/2018). On 29.05.2019 both the appeals were allowed and judgment dated 08.05.2018 passed by learned Metropolitan Magistrate (NI Act Cases) No.20, Jaipur Metro was set aside and remanded back to the trial court for fresh consideration. The matter was reconsidered by trial court and by order dated 03.08.2022, an order of acquittal was recorded in favour of respondent accused. Hence leave to appeal then converted to appeal. 6. A perusal of evidence of DW-1 Ritesh Patni suggested that he has developed a township in name of ‘Avni Residency’ and appellant complainant has booked 3 plots but after making payment of ₹17,50,000/-, the complainant has not made remaining payment and on request of complainant, he cancelled bookings and issued two cheques to him for refund. DW-1 has further stated that he has paid ₹2,00,000/- by cheque, ₹5000/- as cash and for remaining ₹15 lacs issued one cheque. He also deposed that due to some over-writing in cheque, the complainant has asked for new cheque and without returning old cheque, he collected a new cheque and both of them were misused to file complainant. The admission of DW-1

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clearly shows that his signatures on Ex.P-1 and Ex.P-2 (cheques). The admission also indicated after over-writing on Ex.P-1, he further counter signed the cheque. The admission also suggested that on 10.01.2017 he has filed an application for compromise and on 21.03.2017 submitted a cheque of 5 lacs against compromise which was not encashed. DW-1 also suggested that he is not having any receipt of payment of ₹10 lacs to complainant.

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Having considered the evidence of PW-1 complainant and DW-1 Ritesh Patni, it is evident that accused has issued two cheques Ex.P1 and Ex.P2 against the liability owned by him. The proceedings indicated that appellant has moved an application as Ex.P-14 informing about the compromise. The admission of DW-1 also indicated that on 11.01.2017, he has moved an application for compromise.

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Herein this case, the trial court has considered judgment in case of Rangappa Vs. Sri Mohan AIR 2010 SC 1898, Beer Singh Vs. Mukesh (Criminal Appeal No.216263/2019 (SC) and Basalingappa vs Mudibasappa (Criminal Appeal No.636/2019 (SC)) along with Kaliram Vs. State of Rajasthan (1973) 2 SCC 808 and on the basis of these judgments observed that the accused is required to show his defence and on basis of defence the court could consider rebuttal of presumption under Sections 118 and 139 NI Act.

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Herein this case, we have considered the entire record, whch shows that there was a land transaction between

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appellant complainant and respondent accused. The admission of respondent accused clearly indicated that he has received advance from complainant against the sale of developed land and on request of appellant complainant, the transaction was cancelled by respondent. The appellant complainant has asked for refund of money and two cheques issued by respondent accused, filed for encashment but both of them dishonoured with report “funds insufficient”. These reports Ex.P3 and Ex.P-4 were placed on record. Thereafter a notice Ex.P5 was issued and same was received by respondent accused. Acknowledgment receipts Ex.P-8 and Ex.P9 are placed on record with other subsequent cheques Ex.P-12 and Ex.P-13. 10. Ex.D1 was filed by DW-1 to show that on 18.05.2015, ₹10 lacs was credited to Ansar Qureshi. Further Ex.D2 transactionsheet indicated that ₹2 lacs was credited on 25.11.2015 to Ansar Qureshi. The total amount returned to complainant is ₹12 lacs.

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11.The cross-examination of PW-1 Ansar Qureshi clearly indicated that a receipt of ₹17,50,000/- was issued to him. The admission also indicated that ₹10lacs and ₹2lacs were received by him and same is part of statement. The admission of PW-1 clearly indicated that ₹2,75,000/- were received in cash.

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Having considered the aforesaid amounts, it is evident that total ₹14,75,000/- were received by complainant against two cheques after the dispute between the parties. The trial court without considering the evidence of PW-1 and DW-1 has drawn an erroneous conclusion of acquittal. The evidence on

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record clearly suggest that out of legal liability of ₹30 lacs, ₹14,75,000/- was already received by the complainant. There is no proof of any cash payment by accused to complainant.

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The admission of DW-1 clearly indicated that he has not filed any statement relating to transaction between the parties. Moreover as a business entity, it was duty of respondent to file account statement or a copy of ledger maintained by his firm to show his bonafides but herein while considering the defence of DW-1 the trial court without understanding intricacies of the business transactions had drawn a conclusion that by filing defence evidence, the accused has rebutted the presumption.

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The facts suggest that, ₹15,25,000/- remained as unpaid against both cheques on date of judgment by trial court. The trial court has not even noticed that on earlier occasion previous Presiding Officer has passed a judgment of conviction on 08.05.2018 and same was remitted back to the appellate court due to technical reason. The direction was to mark documents filed by complainant and give opportunity to defence to accused. The first admission on 19.09.2017 in statement under Section 313 Cr.P.C. indicated that after notice he has paid payment of ₹12,75,000/-. The statement of (accused) also indicated that he is ready to pay remaining balance. How can a court ignore the statement of respondent accused made on earlier occasion, in same proceeding.

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The Court has to see, whether the documents required to be produced were infact produced or not. The respondent accused is a land developer and he received money for booking

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of plots. The appellant complainant has filed complaint on the basis of dishonour of two cheques Ex.P-1 and Ex.P-2 and admission of DW-1 clearly indicated that both the cheques were issued by him. The defence of DW-1 was not proved in the instant case. No notice was given to return the cheque to accused. Thus the respondent accused was not able to establish that he had paid money against both cheques rather he paid only ₹14,75,000/- as admitted by complainant and that too after cancellation of land deal.

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In view of discussion made hereinabove, it is apparent that the trial court has committed error while acquitting respondent accused on the ground that he has able to rebut presumption under Sections 118 and 139 NI Act. The legal position is that by evidence the accused can rebut the presumption but whether presumption has been rebutted or not is a question of fact and trial court is required to adjudicate the question but herein by analysis by trial court clearly indicated that it has not considered that the accused has changed his version during trial of the case therefore the judgment of trial court is perverse and illegal and contrary to material available on record.

¶50

The complainant appellant is able to prove his case for non-payment of ₹15,25,000/- therefore the appeal is liable to be allowed for dishonour of cheque(s).

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In view of discussion made hereinabove, the instant appeal preferred by complainant is hereby allowed and judgment dated 03.08.2022 in criminal case No.914/2015 is

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hereby set aside and respondent accused Ritesh Patni is declared guilty for committing offence under Section 138 of NI Act.

¶56

No one is present on behalf of respondent accused to consider matter on quantum of sentence, therefore we have considered submission of learned counsel for appellant and learned Public Prosecutor.

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After conviction under Section 138 NI Act, respondent accused Ritesh Patni is sentenced to undergo simple imprisonment of two years with fine of ₹30,50,000/-. In default of payment of fine, he will undergo further sentence of six months. Out of this fine amount,₹30,00,000/- be paid to appellant complainant as compensation and remaining ₹50,000/- to be kept in State fund as prosecution cost. Since respondent accused is not present before this Court to undergo sentence therefore trial court is directed to issue warrant of arrest to procure his attendance and in case accused remain as absconding then the trial court is directed to proceed in accordance with law.

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Misc. Application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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PREETI VALECHA /103

Ansar Qureshi Son of Late Shri Shahbuddin Qureshi v. Ritesh Patni Son of Shri S.C. Jain

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Ansar Qureshi Son of Late Shri Shahbuddin Qureshi v. Ritesh Patni Son of Shri S.C. Jain

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