GHANSHYAM SARRAF Vs. STATE OF M P

JUDGEMENT

(1.) Heard the learned counsel for the parties. The applicants have challenged the order dated 03.09.2015 passed by the Second Additional Sessions Judge, Shivpuri in Criminal Revision No.161/2012, whereby the revision filed by the applicants was dismissed and the order dated 20.12.2012 passed by the Judicial Magistrate First Class, Shivpuri in Criminal Case No.483/2006 was confirmed, in which a complaint was registered against the applicants of the offences punishable under Sections 420, 468 and 471 of IPC.

(2.) Facts of the case in short are that respondent no.2 -Badri Prasad has lodged a criminal complaint against the applicants and two other persons that fake documents were prepared in the name of respondent no.2 -Badri Prasad that he had purchased a tractor by taking loan from applicant no.1 and finance was given by applicant no.2 being office bearer of the concerned Finance Company; whereas the tractor was purchased by one Bhuralal Sen, father of the respondent no.2. Thereafter when the tractor was given to the concerned service centre of applicant no.2, it was not returned and it was sold to one Vijay Singh Rawat. The tractor was never surrendered by the respondent no.2 and by forgery, a false transaction was done by the applicants. Initially, the complaint was registered vide order dated 19.06.2006 by the Judicial Magistrate First Class, Shivpuri, but the Sessions Judge Shivpuri vide order dated 20.11.2006 in Criminal Revision No.177/2006 has remanded the case and directed to examine the RTO files etc. and thereafter to pass a consequential order. Thereafter, the trial Court vide order dated 20.12.2012 registered the complaint and the revisionary Court confirmed the order passed by the trial Court.

(3.) After considering the submission advanced by the parties and looking to the facts and circumstances of the case, it appears that the tractor was purchased by respondent no.2 on the basis of a loan taken from applicant no.2. He has issued various cheques of installments and when the cheque was dishonoured, Mahindra & Mahindra Finance Service Limited had moved a complaint under Section 138 of the Negotiable Instruments Act and vide judgment dated 15.06.2013 passed by the Judicial Magistrate First Class, Bhopal, the respondent no.2 -Badri Prasad Sen was convicted of the offence under Section 138 of the Negotiable Instruments Act and sentenced for one year's rigorous imprisonment with fine of Rs.1,40,000/ -. In Criminal Appeal No.636/2013, 10th Additional Sessions Judge, Bhopal vide judgment dated 28.10.2014 dismissed the appeal. Under these circumstances, it would be apparent that if the loan was not taken by the respondent no.2, then he was not required to issue any cheque and he could not be convicted for the offence under Section 138 of the Negotiable Instruments Act. The respondent no.2 has taken the same plea before the Magisterial Court as well as in appeal, in the case of Section 138 Negotiable Instruments Act, but that plea was not proved. Under these circumstances, prima -facie on the the basis of the various documents of loan and finance, on which the respondent no.2 has appended his signatures, it appears that no forgery or cheating was done by the applicants while grant of loan and providing the tractor to respondent no.2. Respondent no.2 has failed to prove that the tractor was purchased by his father; but contrary it appears that his father was a guarantor to the transaction which took place between respondent no.2 and the concerned Finance Company.