PRATAP SINGH Vs. RAMRATAN

JUDGEMENT

(1.) BEING aggrieved by the judgment dated 22/09/08 passed by XI ASJ, Indore in Cr. A. No. 151/08 whereby the judgment dated 11/03/08 passed by JMFC, Indore in Criminal Case No. 1336/06 where by the petitioner was convicted for an offence punishable under Section 138 of Negotiable Instruments Act (which shall be referred hereinafter as an "Act") with imprisonment of one year and fine of Rs. 3,50,000/ -, was maintained, the present petition has been filed. Short facts of the case are that on 02/01/06 a complaint was filed by the respondent against the petitioner for an offence punishable under Section 138 of the Act, alleging that the petitioner was in need of money, hence loan of Rs. 2,55,000/ - was given by the respondent to the petitioner on 11/02/05, upon payment of interest @ 2% per month, for which a promissory note was executed by the petitioner in presence of witnesses. It was alleged that the petitioner was required to repay the amount up to 11/11/05, for which a cheque was issued by the petitioner for a sum of Rs. 3,00,900/ - with an understanding that upon presentation the cheque amount shall be paid to the respondent. It was alleged that the cheque was presented by the respondent to its banker State Bank of Indore, Branch Vaishnav Polytechnic Ground, Indore, which was returned on 17/11/05 with an endorsement to the effect "insufficient funds". It was alleged that the registered notice was issued on 19/11/05, which was returned on 22/11/05 with a remark that the addressee has gone out. It was alleged that notice was also sent under certificate of posting, which was duly served, but inspite of that the cheque amount was not paid, but the notice was replied on 11/01/06 whereby the transaction was denied. It was also alleged that he cheque was never being issued by the petitioner. It was alleged that by giving a false reply the petitioner has committed an offence which is punishable under Section 138 of the Act. It was prayed that after taking cognizance and also after the trial petitioner be convicted.

(2.) AFTER recording of evidence led by the respondent cognizance of the offence was taken. After securing the presence of the petitioner and also after framing of charge and recording of evidence petitioner was convicted, which was maintained in appeal, hence this petition. 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 further submits that sufficient evidence is on record to show that the alleged transaction never took place on 11.2.05, as stamp paper which has been used for execution of document is dated 09/04/ 09. It is submitted that the cheque was never dishonored by the bank on account of exceeds arrangements, but in fact the account itself was closed by the petitioner on 09/04/03, which goes to show that in fact no transaction took place on the date which is mentioned in the cheque. It is submitted that not only the account was closed by the petitioner, but the intimation was also given by the petitioner to the bank vide letter Ex.D/1 to the effect that the cheque has been lost. Learned counsel further submits that not only this petitioner also lodged the police complaint about the fact that the cheque has been lost and also filed a claim against the concerned Bank where the District Consumer Forum, Indore on account of negligence on the part of bank in issuance of memorandum to the respondent to the effect exceeds arrangement. Learned counsel placed reliance on a decision in the matter of Raj Kumar Khurana Vs. State of (NCT of Delhi), : (2009) 6 SCC 72 wherein Hon'ble Apex court held as under :

(3.) SUCH a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by a bank unpaid. Such non -payment may either be: