GANESH PRASAD NEMA Vs. PREM SONS POLYPIPE INDUSTRIES

JUDGEMENT

(1.) The applicant/accused has preferred this criminal revision under Sec. 397 r/w Sec. 401 of the Cr.P.C. being aggrieved by the judgment dated 11.6.2008 passed by the 11th Additional Sessions Judge, Jabalpur in Criminal Appeal No. 461/07 dismissing the appeal filed by the applicant and confirming the judgment dated 21.8.2007 passed by the Special Judicial Magistrate, First Class, Jabalpur in Criminal Case No. 23967/2006. The learned trial Judge has convicted the applicant under Sec. 138 of the Negotiable Instruments Act, 1881 (for short the 'Act') and sentenced thereunder to pay a fine of Rs. 60,000/ - in default of fine to undergo simple imprisonment for a term of six months and also ordered that the respondent/complainant be paid Rs. 55,000/ - (Rupees fifty -five thousands) out of the fine sentence by way of compensation under the provisions of Sec. 357 of the Cr.P.C. The essential facts for the just and proper adjudication of this revision are given below in short:

(2.) 1 The respondent filed a criminal complaint against the applicant for his prosecution under Sec. 138 of the Act and 420 of the IPC stating therein, inter alia, that the respondent is a registered partnership firm engaged in trading of business of pipes, fittings and sprinkler system and other equipments at Jabalpur. Dinesh P. Vora is the partner of the firm and Upendra Singh is authorized by the firm to file Court proceedings against the applicant. The applicant is the sole proprietor of M/s. Ganesh Traders. The applicant has business relations with the respondent. The applicant purchased goods from the respondent and in liquidation of the price of the goods the applicant issued two cheques bearing No. 74146 dated 24.4.1998 for Rs. 10,000/ - and cheque No. 74150 dated 24.4.1998 for Rs. 42,255/ -. The total amount of both the cheques (for short the cheques) is Rs. 52,255/ - and they are drawn by the applicant on the Sahakari Kendriya Bank Maryadit, Branch Katangi, Jabalpur. The respondent had sent the cheques for collection through its Banker, the Indian Bank, Branch Marhatal, Jabalpur. The drawer Bank returned the cheques unpaid on account of insufficiency of funds in the applicant's Bank account The drawee Bank sent this information to the respondent vide memo dated 9.6.1998. Thereafter, the respondent sent statutory notices dated 13.6.1998 in the name of applicant and his firm, which were received by it unserved on 9.6.1998 with the postal endorsements that the addressees refused to take them.

(3.) Per contra, the learned Counsel for the respondent has submitted that the applicant has admitted in his evidence that he had purchased goods from the respondent vide bills Exs. P -4 and P -5 on credit and for the payment of remaining amount of bills he has issued the cheques. In view of the above admission of the applicant in his evidence, it is amply proved that the applicant has not issued the cheques to the respondent by way of security of the transactions. Thus, the learned trial Judge and the learned appellate Judge have not committed any legal error by convicting the applicant under Sec. 138 of the Act. It is also submitted by him that the fine sentence as awarded by the learned trial Judge and confirmed by the learned appellate Judge is not excessive looking to the total amount of the cheques. Consequently, there is no need on the part of this Court to interfere with the impugned judgment.