Back
2009(2) Bankmann 231 (M.P.)
MADHYA PRADESH HIGH COURT
N.K. Mody, J.
Kanhaiya Lal –Petitioner
versus
Paramjeet Singh and Anr. –Respondents
Criminal Revision No.709 of 2008
Decided on 25-11-2008
Counsel for the Parties:
For the Petitioner:Mr. Tushar Bhedasgaonkar, Advocate.
For the Respondent No.1: None though served.
For the Respondent No. 2: Mr. Devendra Singh, Panel Lawyer.
IMPORTANT POINT
When the cheque is returned for want of “Tally of signatures,” an offence under Section 138, N.I.A. is not made out.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Three cheques worth Rs. 1,33,000/- dishonoured—Ground was not “insufficient funds” but was “signatures do not tally”—Section 142—Prosecution launched—Accused convicted and sentenced to 1 month’s imprisonment and fine of Rs. 60,000/- -—Out of Rs. 60,000/-, Rs. 55,000/- payable to complainant.
(ii) Criminal Procedure Code, 1973—Section 374—Appeal against conviction—Appellate Court dismissed appeal—Section 401—Revision petition against dismissal—Held: Section 138, N.I.A. is inapplicable to “untallied signatures”. Submission of the cheques after 4 months' delay was not explained. Facts of “forced signatures” and want of considered were proved legal liability is not established—Revision petition is allowed—Conviction is set aside. Petitioner stands acquitted. (Paras 4, 7, 8 and 10)
N.K. Mody, J.—This order shall also govern the disposal of Cr. R. Nos.710/08 and 711/08, as in all the three petitions petitioner is one and the same and in Cr. R. Nos.709/08 and 710/08 respondent is also one and the same, so far as respondent of Cr. R. No.711/08 is concerned, he is the son of the respondent of Cr. R. 709/08.
2. In all the three petitions judgment under challenge is dated 24.6.2008 passed by 1st ASJ, Mandsaur in Cr. A. No.186/08, whereby the judgment dated 5.5.2008 passed by JMFC, Mandsaur in Criminal Case No.1607/06 whereby the petitioner was convicted under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as an Act) with imprisonment of one month with fine of Rs. 60,000/-, the present petition has been filed.
3. Particulars of all the three cases are as under:
4. In all the three cases the complaint was that petitioner issued a cheque of Rs. 43,000/- and two cheques of Rs. 45,000/-, which were dishonoured upon presentation and the amount was not paid in spite of demand. It was prayed that petitioner be prosecuted under Section 138 of the Act. After taking cognizance and also after framing of charge and recording of evidence, it was found that the petitioner has committed an offence punishable under Section 138 of the Act and petitioner was convicted with an imprisonment of one month and fine of Rs. 60,000/-, out of which Rs. 55,000/- was payable to the respondent. In appeal the sentence awarded by the learned Trial Court was maintained, against which present revision petition has been filed.
5. In all the three cases factual details are as under—
6. Learned Counsel for the petitioner argued at length and submits that petitioner was convicted illegally while petitioner has not committed any offence. Learned counsel further submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in these revision petitions. It is submitted that the learned Courts below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses and the defence of petitioner. It is submitted that petitioner was in jail w.e.f. 24.6.2008. Bail was granted by this Court vide Order dated 17.7.2008 but petitioner could not be released, hence subsequent order was passed by this Court vide Order dated 31.7.2008, in compliance of which petitioner was released on 2.8.2008. It is submitted that petitioner has already completed the jail sentence of more than five weeks.
7. In the matter of Padma Ispat Trading Private Limited v. Pramod Agrawal1 wherein this Court has held that in a case where cheque returned by Bank with endorsement “signature does not tally” complaint is not maintainable on such ground, as the penal provision are attracted on the ground mentioned under Section 138 of the Act. In the matter of Vinod Tunna v. Zaher Siddiqui2 wherein cheque was dishonoured as drawer’s signature was incomplete, Hon’ble Apex Court held that provisions of Section 138, Negotiable Instruments Act not attracted and the criminal proceedings as initiated are quashed.
8. From perusal of the record it is evident that in two cases the non-applicant is Paramjeet aged 50 years and in one case the non-applicant is Tushan
S/o Paramjeet aged 21 years only. Tushan has admitted in his evidence that he is having no source of income. He has further admitted that he has given Rs. 45,000/- to the petitioner with the consent of his father. Paramjeet Singh has also come in witness-box and has stated that he is in hotel business and is also income tax payee. He has further admitted that the cheque amount in all the cases were given by him from time-to-time. He has further stated that the amount was withdrawn by him from the Bank for making the payment to the petitioner. The total amount in all the three cheques is Rs. 1,33,000/-. The best evidence which was available with the res
