CHANCHAL MISTRI Vs. ASHA BHATI

JUDGEMENT

(1.) BEING aggrieved by the judgment dated 21.1.2009 passed by Sessions Judge, Dewas in Cr.A. No. 236/08 whereby the judgment dated 28.11.2008 passed by JMFC, Dewas in Criminal Complaint No. 1285/08 whereby the petitioner was held guilty for an offence punishable under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as an "Act") for a period of two years SI, was modified by converting the jail sentence into fine of Rs. 5, 00,000/-, the present petition has been filed.

(2.) SHORT facts of the case are that the respondent filed a private complaint on 6.5.2008 against the petitioner under Section 138 of the Act alleging that the respondent entered into an agreement to purchase plot No. 93, situated at Junior Agroha Nagar, Dewas, which was owned by the petitioner vide agreement dated 1.1.2008 for a consideration of Rs. 7,21,000/-. It was alleged that in consideration of the agreement respondent paid a sum of Rs. 1, 60,000/- to the petitioner on 1.1.2008 and a sum of Rs. 2, 00,000/- on 28.2.2008. It was further alleged in the complaint that it was agreed between the parties that the balance amount of Rs. 3,61,000/- shall be paid by the respondent to the petitioner on or before 10.3.2008 at the time of execution of sale deed in favour of respondent. It was alleged that the respondent went to the petitioner on 10.3.2008 along with the balance amount of Rs. 3, 61,000/-. It was alleged that at that time petitioner informed that petitioner is cancelling the contract and returning the amount of Rs. 3,61,000/- vide cheque abated 27.3.2008 of Bank of India. It was alleged that upon receipt of the cheque the same was deposited by the respondent for collection, but the same was returned with an endorsement to the effect "insufficient funds". It was alleged that the notice was issued to. The petitioner wherein the demand was made it was further alleged that notice was sent to the petitioner, but the same was not received in spite of receipt of intimation. It was alleged that petitioner has committed an offence which is punishable under Section 138 of the Act. It was prayed that after taking cognizance petitioner be convicted.

(3.) LEARNED Counsel for the petitioner argued at length and submits that petitioner has convicted illegally while petitioner has 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 that material omissions and contradictions appearing in the testimony of the prosecution witnesses. Learned Counsel submits that the conviction be set aside.