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2013 Supreme(MP) 977
MADHYA PRADESH HIGH COURT AT JABALBUR BENCH
N.K. Gupta, J.
Anirudh Saini - Appellant
Versus
Piyush Agrawal - Respondent
Criminal Revision Nos. 367 and 468-2011
Decided On : 14-05-2013
For the Appellant :Shri Anil Khare, Sr. Advocate, Shri Harjeet Singh Chhabra, Advocate in Cr. R. No. 367/2011 and Shri Sanjay Dwivedi, Advocate in Cr. R. No. 468/2011
For the Respondents:Shri Sanjay Dwivedi, Advocate in Cr.R. No. 367/2011, Shri Anil Khare, Sr. Advocate and Shri Harjeet Singh Chhabra, Advocate in Cr.R. No. 468/2011
The main legal point established in the judgment is the shift of burden of proof under Section 139 of the N.I. Act and the implications of the accused's conduct in modifying the cheque and stopping its payment.
Headnote:
N.I. Act - Cheque Issuance - Section 138 - [138 of the Negotiable Instruments Act] - The court discussed the issuance of a cheque, burden of proof, and the presumption of innocence under Section 139 of the N.I. Act. The court also considered the implications of modifying the date on the cheque and the accused's conduct in stopping the payment. The judgment referenced legal provisions and their interpretations to establish the accused's guilt and maintain the conviction and sentence.
Fact of the Case:
The accused was convicted for issuing a cheque under Section 138 of the Negotiable Instruments Act. The complainant alleged that the accused issued a cheque, stopped its payment, and failed to pay the due amount. The accused denied issuing the cheque and claimed it was stolen. The court analyzed the evidence and arguments presented by both parties.
Finding of the Court:
The court found that the accused failed to prove that the cheque was not issued to the complainant and that the burden of proof shifted to the accused. The court also noted the accused's conduct in modifying the date on the cheque and stopping its payment, leading to the establishment of the offence under Section 138 of the N.I. Act.
Issues: The key issues involved the issuance of the cheque, burden of proof, modification of the cheque, and the accused's conduct in stopping the payment.
Ratio Decidendi: The court held that the burden of proof shifted to the accused to rebut the presumption under Section 139 of the N.I. Act. The accused's conduct in modifying the cheque and stopping its payment indicated guilt, leading to the establishment of the offence under Section 138 of the N.I. Act.
Final Decision: The court maintained the conviction and sentence of the accused under Section 138 of the N.I. Act. The accused's appeal was dismissed, and the complainant's appeal resulted in a reduction of the jail sentence for the accused.
Judgment:
N.K. Gupta, J.
1. These two criminal revisions arose from the judgment dated 4.2.2011 passed by the Additional Judge to the First Additional Sessions Judge, Jabalpur in Criminal Appeal No. 317/2009, and therefore both these revisions are decided by the common order. Applicant Anirudh Saini (herein after he would be referred as "applicant/accused") was convicted for the offence under Section 138 of the Negotiable Instruments Acts (for brevity "N.I. Act") vide judgment dated 9.10.2009 passed by the JMFC Jabalpur (Shri Ajay Kumar Singh) in Complaint Case No. 28694/2006 whereby he was sentenced for two years' RI with fine of Rs. 1,000/- and compensation of Rs. 8 lakhs. In Criminal Appeal No. 317/2009 the learned First Additional Sessions Judge, Jabalpur vide judgment dated 4.2.2011 partly allowed the appeal by which the conviction was maintained, but the sentence of two years RI was altered, whereas the sentence of fine and compensation was maintained. Being aggrieved with both the judgments, the applicant/accused has filed the present criminal revision No. 367/2011.
2. On the other hand, the applicant Piyush Agrawal (herein after he would be referred as "complainant") has preferred criminal revision No. 468/2011 against the impugned judgment to set aside the impugned judgment and to maintain the sentence directed by the trial Court.
3. The complainant had preferred a complaint against the applicant/accused that the applicant/accused was involved in share marketing whereby he lost some amount, and therefore a cheque of Rs. 7,67,027/- was issued in favour of the complainant. When the cheque was submitted for its encashment, the complainant was informed that the cheque could not be encashed, because a direction of stop payment was given by the applicant/accused. Thereafter a notice of the demand was given to the applicant/accused, but he did not pay the amount of the cheque, and therefore a complaint was filed.
4. The applicant/accused has submitted a reply to the complaint that some utensils were purchased by the applicant/accused from the complainant, and therefore a payment of Rs. 1200/- was to be made to the complainant. Therefore, the applicant/accused detached the cheque from the cheque book, but it was lost during transit in Gorakhpur area on 27.10.2004. The applicant/accused came to know that the complainant has fraudulently submitted a cheque with the sum of Rs. 7,67,027/-, thereupon he directed the bank to stop the payment, as no sum was due towards the applicant/accused. The applicant/accused had also filed a complaint against the complainant for the offence under Section 420 of IPC. One such case was also lodged by Smt. Sobha Soni against the complainant for a cheque of Rs. 1 lakh, which was dishonoured.
5. Ultimately, the applicant/accused abjured his guilt. He took a specific plea in the defence that the complainant had mentioned the amount on the cheque in his own handwriting and no amount was due towards the applicant/accused. In defence Hoshiyar Keshav Chinoy (DW-1) was examined, whereas so many documents Ex. D-2 to Ex. D-10 were produced in support of the defence.
6. The learned JMFC, Jabalpur after considering the evidence adduced by the parties convicted and sentenced the applicant/accused as mentioned above, whereas in appeal the jail sentence was removed by the learned appellate Court.
7. I have heard the learned counsel for the parties at length.
8. The learned senior counsel for the applicant/accused has submitted that the cheque was not issued. It was stolen, and therefore its payment was stopped. The complainant has claimed that the cheque was given because of transaction done by the applicant/accused with the complainant. However, it is proved by the defence witness Hoshiyar Keshav Chinoy (DW-1) that the applicant/accused had direct transaction with the main broker and not with the sub-broker, and therefore no amount was due to be paid to the complainant. Therefore, no cheque was given to the complainant.
