LAWS(MPH)-2011-12-82

PRASHANT MUNDRA Vs. SATISH KUMAR RATHI

Decided On December 01, 2011
Prashant Mundra Appellant
V/S
Satish Kumar Rathi Respondents

JUDGEMENT

(1.) THE applicant/accused has preferred this revision being aggrieved by the judgment dated 25.3.2010 passed by VIIth Additional Sessions Judge (Fast Track Court) Ujjain, in Cr. Appeal No. 443/09, affirming the judgment dated 28.10.2009 passed by Judicial Magistrate First Class Tarana, in Criminal Case No. 49/07, convicting and sentencing the applicant for the offence under Section 138 of the Negotiable Instruments Act (In short 'the Act') for six months RI with a direction to pay the compensation Rs.1,15,000/ - under Section 357 (3) of Cr.P.C. (In short 'the Code') to the respondent/complainant.

(2.) THE facts giving rise to this revision in short are that the applicant herein after receiving the consideration of Rs. One lacs from the respondent/complainant, gave him a cheque of his account. The respondent in his turn within the validity period of such cheque deposited the same with his banker for it's collection, but the same was not encashed and returned to the respondent by his banker along with the memo dated 3.8.2007 having the endorsement that no sufficient fund is available in the account of the applicant. On which, a demand notice dated 4.8.2007, was sent by the respondent to the applicant through registered post. The same was returned back with the endorsement of various dates i.e. 6.8.2007, 7.8.2007, 8.8.2007 and 9.8.2007 that inspite intimations, the adressee was not available at the time of delivery of the same. Inspite such notice when the payment of the cheque was not made then, within the prescribed period from the deemed service of the aforesaid registered notice, the impugned private complaint was filed by the respondent against the applicant to prosecute him under Section 138 of the Act. As per procedure provided under Sections 200 and 202 of Cr.P.C., after recording the preliminary statements of the respondent and his witnesses, the cognizance of the aforesaid offence was taken. After appearance of the applicant, it being summoned case, the plea was recorded and the trial was held. After recording the evidence, on appreciation of the same, the applicant was held guilty for the aforesaid offence in which he was punished with sentence along with a direction to pay the compensation as stated above. On filing the appeal, by affirming the findings of the trial Court, the same was dismissed, on which the applicant has come to this Court with this revision.

(3.) SHRI Rohit Mangal, learned appearing counsel after taking me through the complaint along with the evidence led by the parties and exhibited papers from the record of the trial Court, so also the impugned judgments of the Courts below argued that the impugned complaint was entertained by the trial Court under the wrong premises while, in the lack of proper service of the demand notice as per provision of 138 (c) and 142(b) of the Act, no valid cause of action was available to the respondent to file the complaint against the applicant. In continuation, he said that after dishonouring the cheque, the demand notice Ex.P/3, as alleged was sent to the applicant through registered post, but it is apparent and undisputed fact that the same was not served on the applicant. Although as per record, it was returned back with the aforesaid endorsement that inspite intimation, the addressee was not available to receive the same. According to his submission, in the lack of personal service of such notice, it could not be deemed that the provision of Section 142(b) of the Act has been duly complied with. Secondly, he argued that as per provision of Section 139 of the Act, the burden to prove the alleged consideration was not required by the applicant, has been wrongly shifted on the shoulder of the applicant while, the respondent was initially duty bound to prove that such cheque was given to him in consideration of some legal transaction. In this regard, he also said that in the lack of any account Book or any other admissible documents, it could not be assumed that the valid transaction was passed. According to him, the said cheque was given in connection of some B.C.(On asking the counsel, what is the meaning of B.C. he said that he did not have any instructions from the applicant in this respect so, he is unable to make any statement in this regard). Thirdly, he argued that the signature of the applicant on the disputed cheque has not been duly proved by any admissible evidence and contrary to prescribed procedure by holding the signature of the applicant on the disputed cheque, he has been convicted and punished under the wrong premises. Lastly, in alternative he argued that in case this Court comes to a conclusion that there is sufficient evidence and circumstance to affirm the impugned conviction of the applicant then, in that circumstances, taking into consideration that the applicant being first offender did not have any criminal antecedents in past and has already suffered the jail sentence between 25.3.2010 i.e. the date of the impugned judgment of the Appellate Court till 31.3.2010, the date of his release in compliance of order of this Court dated 29.3.2010, suspending his remaining jail sentence and grant of bail, by adopting a lenient view , his awarded jail sentence be reduced from the period of six months to the aforesaid period suffered by him by maintaining the amount of compensation under the discretion of the Court. He also placed his reliance on a report case of the apex Court in the matter of Shakti Travel and Tours vs. State of Bihar and another, reported in (2002) 9 SCC 415 and in the matter of Krishna Janardhan Bhat vs. Dattatraya G. Hegde, reported in (2008) 4 SCC 54 and prayed to allow this revision accordingly.