MADAN TIWARI Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Being aggrieved by the judgment dated 22.01.2010, passed by the 12th Additional Sessions Judge (FTC) Durg in Cr.A. No. 80/2007 whereby the judgment dated 29.05.2007 passed in Cr. Case No. 780/2007 has been affirmed by convicting the applicant under Section 138 of the Negotiable Instrument Act and sentencing him to undergo RI for two years and fine of Rs. 5,000/- with default stipulation.

(2.) Short facts of the case are that the respondent No.1 filed a complaint alleging that applicant, who is running an institution (Pleasant Health Welfare Foundation) at Dongargaon and has appointed the complainant and 21 other persons on agreement basis. It is further case that the complainant and other persons deposited some amount as per the agreement, with the institution. In the agreement it was mentioned that the amount so deposited would be refunded after completion of probation period of one year. It is the case of the complainant and other persons that after completion of probation period, they have not been regularized therefore, the complainant and others demanded for refund of the amount of Rs. 3,16,000/- from the applicant/institution. The applicant issued a cheque bearing No. 402428 dated 20.03.2004 for Rs. 3,16,000/- in favour of the complainant. When the cheque was deposited by the complainant in the bank, the bank dis honoured stating therein that payment of the cheque was not being made because of insufficient amount being in the account of the drawer. Thereafter, the opposite party-applicant was sent a legal notice dated 10/05/2004 and the complaint was presented in the Court against the opposite party-accused. Thereafter, complainant issued a legal notice and when the applicant did not respond to the same, complaint was filed against the applicant for the offence under Section 138 of the Negotiable Instrument Act. After framing the charges and recording of evidence, learned trial court allowed the complaint filed by the respondent No.1 holding that the applicant has committed offence punishable under Section 138 of the Negotiable Instrument Act and sentenced him to undergo RI for two years and fine of Rs. 5,000/- with default stipulation. Against this order, the applicant filed Cr.A. No. 80/2007 before the appellate authority whereby the judgment of conviction and order of sentence was affirmed. Hence, this present revision filed by the applicant.

(3.) Counsel for the petitioner argued that the learned court below committed an error in convicting the applicant for the offence under Section 138 of the Act. He submits that no loan was given to the petitioner by the respondent No.1/complainant and it is for the respondent No.1 to prove the burden that loan of Rs. 3,16,000/- was given to the applicant but there is nothing on record to show that any loan was given to the applicant by respondent No.1. The courts below have wrongly held that burden of prove lies upon the accused/applicant. The complaint was premature before the trial court and the complainant had no cause of action to file complainant on behalf of other 21 persons and it is clear from the complaint that the cheque has not been issued against any debt. The applicant had not issued the cheque in question and no handwriting expert has been examined by the complainant/ The complainant failed to establish this legal aspect of the case that the applicant was the Managing director of the Institution and authorized signator of the institution. The courts below have misinterpreted the provisions of Section 138 of the Negotiable Instruments Act as well a failed to appreciate the testimony of the witnesses.