MANOHAR LAL Vs. ASGAR ALI

JUDGEMENT

(1.) Being aggrieved by the judgment dated 15.12.2008 passed by IV AS.1, Mandsaur in Cr. Appeal No. 308/2008 whereby the judgment dated 14.8.2008 passed by JMFC, Mandsaur in Cr.Case No. 1440/2007 whereby the petitioner was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act by sentencing him to undergo two years' imprisonment with fine of Rs. 10,000/- was maintained, the present petition has been filed.

(2.) Short facts of the case are that respondent No. I filed a complaint on 7.7.2007 under Section 138 of the Negotiable Instruments Act alleging that respondent No. I is resident of Sharjaha, Dubai. It was alleged that respondent No. I is having the properties at Mandsaur. It was alleged that respondent No. I is having a building situated opposite to Stale Bank of India near Modern Petrol Pump, Mhow Neemuch Road, Mandsaur. It was alleged that said property is joint family property. It was further alleged that petitioner No. 2 is a partnership firm of which petitioner No. I is active partner. It is submitted that basement of the aforesaid building has been let out by the respondent No. I to the petitioner No. I on rent a Rs. 25,000/- per month. It was alleged that rent is being paid by the petitioner Nos. 1 and 2 as partner of the petitioner firm through cheque. It was alleged that at the time of making payment, the TDS which is payable to Income Tax Department was deducted by the petitioners @ Rs. 3,850/- per month but in spite of deduction the said amount was not deposited by the petitioners with the Income Tax Department. It was alleged that petitioners were in arrears of rent w. e.f. 1.6.2003. It was alleged that on 5.4.2007, a cheque of Rs. 9,30,600/- was issued by the petitioners to the respondent No. I towards arrears of rent. It was alleged that upon presentation, the said cheque was dishonoured by the concerned Bank with a memo bearing remark 'stop payment'. It was alleged that notice of demand was sent on 26.8.2007 by Registered post as well as under Certificate of Posting but in spite of that the amount was not deposited. It was alleged that petitioner has committed the offence which is punishable under Section 138 of the Negotiable Instruments Act. It was prayed that after taking cognizance of the offence and also after framing of charge and recording of evidence the petitioners be convicted. After taking cognizance of the offence and also after framing of charge learned Court below convicted the petitioners, against which an Appeal was filed which was dismissed, hence this petition.

(3.) Learned Counsel for the petitioners argued at length and submit that petitioners have been convicted illegally while petitioners have 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 this Revision. It is submitted that the learned Courts below committed error in not considering the material omissions and contradictions appearing in the testimony of the prosecution witnesses. Learned Counsel further submits that the impugned order passed by the learned Court below is illegal as the cheque in dispute Ex.P/1 was lost cheque. It is submitted that a complaint was lodged by the petitioner No. I vide Ex.D/5 which was duly proved by the petitioner No. 1. It is submitted that Ex.D/5 is dated 17.3.2004 whereby concerned Bank was intimated for stop payment, while the cheque was submitted for collection on 5.4.2007. For this contention reliance is placed on a decision of Hon'ble Apex Court in the matter of Raj Kumar Khurana v. State of (NCT of Delhi), 2009 4 MPLJ 151, wherein Hon'ble Apex Court has held that refusal on the part of Bank to honour the cheque, with the remarks "said cheque reported lost by the drawer" would not bring the matter within the mischief of the provisions of Section 138 of the Act. Learned Counsel further submits that the petition itself is premature, which ought to have been dismissed, as the alleged cheque Ex.P/1 is dated 5.4.2007 was returned on 22.6.2007 and notice of demand was issued on 28.6.2007 which was returned on 30.6.2007, while the complaint was filed on 17.7.2007. For this contention reliance is placed on a decision in the matter of Mehraj-ud-Din Ganai v. Mir YousuJ, 2009 2 BankCas 684, wherein the complaint was premature, Jammu & Kashmir High Court has held that taking of cognizance is totally illegal. On the strength of aforesaid decisions, learned Counsel submits that the conviction and sentence be set aside.