Brijmohan Agrawal vs Ganda Rai Gupta

This appeal has been preferred against the judgment dated 28.2.2011 passed by the 4th Additional Sessions Judge, F.T.C., Raigarh in Criminal Appeal No.69 of 2010, whereby the Learned Additional Sessions Judge has acquitted the Respondent/accused of the charge under Section 138 of the Negotiable Instruments Act.

Facts of the case, in short, are that on 1.8.2008 the Respondent/accused obtained Rs.30,000 as loan from the Appellant/Complainant. The Respondent issued a cheque bearing No.057611 dated 8.8.2008 for the aforesaid amount in favour of the Appellant. The Appellant presented the said cheque for clearance in the bank on 12.8.2008, which was dishonoured due to insufficient fund in the bank account of the Respondent. On 26.8.2008, the Appellant sent a legal notice through his Advocate to the Respondent demanding his money of Rs.30,000. The Respondent failed to refund the said amount to the Appellant within the stipulated period. Thereafter, the Appellant preferred a complaint under Section 138 of the Negotiable Instruments Act before the Judicial Magistrate First Class, Raigarh. After recording evidence and hearing the parties, the Judicial Magistrate First Class, vide judgment dated 28.10.2010, convicted the Respondent for the offence under Section 138 of the Negotiable Instruments Act and sentenced him with rigorous imprisonment for 1 year and the Judicial Magistrate also granted a compensation of Rs.30,000 in favour of the Appellant under Section 357(3) of the Cr.P.C. Against the said judgment of conviction, an appeal was preferred by the Respondent before the Additional Sessions Judge, Raigarh. After hearing the parties, the Learned Additional Sessions Judge, vide the impugned judgment dated 28.2.2011, reversed the finding of conviction and sentence given by the Judicial Magistrate First Class and acquitted the Respondent of the charge under Section 138 of the Negotiable Instruments Act. Hence, this appeal by the Appellant/Complainant.

Learned Counsel appearing for the Appellant/Complainant submitted that the Appellate Court erred in interfering with the finding of fact that the Respondent had issued the alleged cheque in discharge of debt and further erred in ignoring the presumption raised against the Respondent under Section 139 of the Negotiable Instruments Act. From the evidence adduced by the Appellant, it is well established that the Respondent had obtained a loan of Rs.30,000 from the Appellant and for discharging his liability he gave the cheque in question which was dishonoured. The Respondent has admitted his signature on the cheque. To rebut the presumption under Section 139 of the Negotiable Instruments Act, the Respondent has not adduced any evidence. He has not examined himself or any other witness before the Trial Court. He has also not replied the legal notice issued to him by the Appellant. Thus, he has totally failed to rebut the presumption raised against him under Section 139 of the Negotiable Instruments Act. Therefore, the Additional Sessions Judge has erroneously acquitted the Respondent.

Learned Counsel appearing for the Respondent/accused supported the impugned judgment of acquittal passed by the Appellate Court.

I have heard Learned Counsel appearing for the parties and perused the records of the Courts below minutely.

Before the Trial Court, the Appellant examined himself as Complainant Witness No.1. In his Court statement, he deposed that on 1.8.2008, he borrowed cash of Rs.30,000 to the Respondent/accused. Thereafter, on 8.8.2008, the Respondent issued a cheque of Rs.30,000 (Ex.P1) in his favour for discharging his liability, which was dishonoured due to insufficient fund (Ex.P3). A legal notice in this regard was sent by the Appellant vide Ex.P6 to the Respondent on 26.8.2008, which was received by the Respondent vide Ex.P8 on 27.8.2008. The statement of the Appellant regarding borrowing amount of Rs.30,000 to the Respondent on 1.8.2008 is not duly rebutted by the Respondent during his cross-examination. The Respondent did not examine himself nor did he produce any evidence in his favour before the Trial Court. He also did not reply the legal notice which was given to him vide Ex.P6. The cheque (Ex.P1) contains his signature. Therefore, a legal presumption under Section 139 of the Negotiable Instruments Act is there against the Respondent. He totally failed to rebut the said presumption. Therefore, the finding of acquittal arrived at by the Learned Additional Sessions Judge is not in accordance with the evidence available on record. Therefore, the judgment of acquittal dated 28.2.2011 passed by the Learned Additional Sessions Judge is set aside. The judgment of conviction dated 28.10.2010 passed by the Learned Judicial Magistrate First Class is affirmed.

So far as sentence is concerned, considering the fact that the alleged transaction was of the year 2008 and the Respondent is facing the lis for the last 14 years, I am of the view that ends of justice would be served if, while upholding the conviction, he is sentenced with fine only. Therefore, it is ordered that the Respondent shall pay fine of Rs.50,000 within 3 months from today. In default of the payment, he shall be liable to suffer simple imprisonment for 3 months. On deposit of the said fine of Rs.50,000, the whole amount be paid to the Appellant/Complainant within 15 days from the deposit as compensation.

Accordingly, the instant appeal is allowed to the extent shown above.