DWARKA SONI Vs. STATE OF M P

JUDGEMENT

(1.) The applicant/ accused has preferred this revision being aggrieved by the judgment dated 24.1.2008 passed by 13th Additional Session Judge, Jabalpur in Cr. Appeal No. 557/07, affirming the judgment dated 17.11.2007 passed by Special Judicial Magistrate 1st Class, Jabalpur in Criminal (Complaint) Case No. 27358/06, filed by the respondent No. 2, convicting the applicant under Section 138 of Negotiable Instruments Act (In short "the Act") with fine of Rs. 1,45,000/- in default of depositing the fine amount for three months simple imprisonment with a direction that out of the fine amount Rs. 1,35,000/- be given as compensation to the respondent No. 2. The facts giving rise to this revision in short are that respondent No. 2 herein filed a private complaint against the applicant in the trial Court contending that the applicant being his good friend was in need of some money for education and employment of his son in some foreign country in this regard on making demand by the applicant from him he gave a loan of Rs. 2,00,000/-from him. Besides this Rs. 1,00,000/- was also taken by the applicant from him on the of death of his wife to carry out her last rite. In consideration of such sum applicant gave him three different cheques of his account to repay the same. Out of them one cheque bearing No. 052001 dated 30.12.2004 for Rs. 1,00,000/- was deposited by the respondent No. 2 with his Banker on 10.1.2005 for it's collection, the same was returned by the Banker as dishonored with a memo having the endorsement of insufficient fund in the account of the applicant. Thereafter inspite service of demand notice on the applicant neither the consideration of such cheque nor any reply of the same was given by the applicant, on which within the prescribed period provided under the Act the impugned complaint was filed, in which by adopting the procedure prescribed under Section 200 and 202 of Cr.P.C. the cognizance of the aforesaid offence of Section 138 of the Act was taken by the trial Court against the applicant, on his appearance the trial was held. On appreciation of evidence the applicant was convicted and sentenced as stated above. On filing the appeal the same was dismissed, on which the applicant has come to this Court with this revision.

(2.) Shri Sanjay Sanyal, learned appearing counsel of the applicant after taking me through the record of the Courts below including the impugned judgment argued that the alleged transaction being a loan transaction the remedy to recover the sum of disputed cheque by way of Civil suit was available to the respondent No. 2 and therefore the Courts below did not have jurisdiction to entertain the impugned complaint to convict the applicant. In continuation he said that the over writing part of the disputed cheque and apparent difference of the applicant signature on the disputed cheque with his specimen signature kept in the record of his banker was also not considered by the Courts below with proper approach. It is also argued that disputed cheque along with some others was missed from the custody of the applicant for which he also lodged the FIR and the same was produced and proved. In such premises also the Courts below ought to have held that the alleged cheque was never issued by the applicant with his signature for any valid consideration. In this connection he also argued that the applicant is always used to sign the cheque in English and not in Hindi language but such aspect was neither considered by the Courts below with proper approach nor sufficient opportunity to prove such fact was given to him by the trial Court, and prayed for allowing this revision.

(3.) On the other hand Shri Ajit Singh Jatav, learned counsel of the respondent No. 2 by justifying the findings of the impugned judgment holding conviction against the applicant said, the same being based on proper appreciation of evidence and in conformity with law does not require any interference at this stage for extending the benefit of acquittal to the applicant and prayed for dismissal of this revision.