Indra Singh vs Udaichandra Shah

This criminal appeal has been preferred by the appellant under Section 378(4) of the Code of Criminal Procedure, being aggrieved by the judgment dated 24.03.2018 passed in Criminal Appeal No.108/2012, whereby the learned 1st Additional Sessions Judge acquitted the respondent of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 by reversing the judgment of conviction and sentence dated 31.07.2012 passed by the Judicial Magistrate First Class, Baidhan, District Singrauli in Criminal Case No.924/2009.

2 . According to the appellant, the respondent issued Cheque No.233055 dated 30.06.2009 for a sum of Rs.1,69,000/- drawn on Rewa-Sidhi Gramin Bank, Branch Nougai, in favour of the appellant. When the cheque was presented for encashment, it was dishonoured on 10.07.2009 on the ground of "insufficient funds". Thereafter, the appellant served a statutory demand notice upon the respondent. As the respondent failed to make payment of the cheque amount within the stipulated period, a complaint under Section 138 of the Negotiable Instruments Act, 1881 was filed before the Judicial Magistrate First Class, Baidhan, District Singrauli. By judgment dated 31.07.2012, the learned Judicial Magistrate First Class convicted the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo rigorous imprisonment for six months along with payment of compensation of Rs.2,00,000/-. In appeal, the learned 1st Additional Sessions Judge, Singrauli, by judgment dated 24.03.2018, allowed the appeal, set aside the judgment of conviction and sentence, and acquitted the respondent. Aggrieved thereby, the present appeal has been preferred.

3 . Learned counsel for the appellant submits that the impugned judgment of acquittal is contrary to the facts, the evidence available on record, and the settled principles of law. It is submitted that the learned first appellate Court has committed errors of law and fact in acquitting the respondent despite the consistent and reliable evidence adduced by the complainant. It is further submitted that the evidence of the complainant and his witnesses clearly establishes all the essential ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act. Learned counsel contends that the appellate Court has recorded perverse findings by discarding the complainant evidence on the basis of minor discrepancies, which are natural and do not affect the core of the complainant case. It is submitted that the learned appellate Court has failed to appreciate the evidence in its proper perspective and has erroneously reversed the well-reasoned judgment of conviction passed by the trial Court. Therefore, the impugned judgment deserves to be set aside and the judgment of conviction and sentence passed by the trial Court deserves to be restored.

Per contra, learned counsel for the respondent submits that the learned trial Court has committed an error in appreciating the evidence available on record and has failed to consider the material contradictions and inconsistencies appearing in the testimony of the complainant and his witnesses. It is submitted that the complainant failed to establish the existence of a legally enforceable debt or liability against the respondent and the essential ingredients of the offence under Section 138 of the Negotiable Instruments Act were not proved beyond reasonable doubt. Learned counsel further submits that the learned first appellate Court has rightly re-appreciated the entire evidence and, after considering the relevant material on record, recorded a finding of acquittal. The findings recorded by the appellate Court are based on proper appreciation of evidence and do not suffer from any illegality, perversity, or infirmity. Therefore, no interference is warranted with the impugned judgment of acquittal, and the appeal deserves to be dismissed.

Heard learned counsel for the parties and perused the record.

The appellate Court has properly appreciated the oral and documentary evidence and has rightly concluded that the complainant failed to establish the existence of a legally enforceable debt or liability, which is the sine qua non for attracting the provisions of Section 138 of the Negotiable Instruments Act.

Although the accused admitted his signature on the cheque, the statutory presumption under Section 139 of the Negotiable Instruments Act is rebuttable. In the present case, the accused succeeded in raising a probable defence by producing contemporaneous documents, namely Exhibit D/1 (W.P. No.8363 of 2009 filed by the complainant against the accused's daughter-in-law seeking her removal from the post of Gram Panchayat Secretary), Exhibit D/5 (complaint dated 22.05.2009), Exhibit D/6 (show-cause notice dated 15.06.2009) and Exhibit D/7 (reply dated 26.06.2009). These documents clearly establish that serious disputes were already pending between the complainant and the accused's daughter-in-law regarding her official position in the Gram Panchayat. It is quite strange that on one hand, the complainant grants a loan to the accused while on the other hand, he makes every effort to have the accused’s daughter-in-law removed from service. The defence that the cheque was obtained not towards repayment of any loan but to secure her continuance in service and prevent harassment, therefore, appears to be probable and cannot be brushed aside.

The defence taken and produced by the accused create a serious doubt regarding the complainant's case that the cheque was issued in discharge of a legally recoverable debt. Rather, the material on record indicates that the cheque was allegedly obtained in connection with an illegal and unethical demand concerning the official post of the accused's daughter-in-law. Such a transaction cannot be treated as a legally enforceable liability within the meaning of Section 138 of the Negotiable Instruments Act. Consequently, the statutory presumption under Section 139 stands successfully rebutted and the complainant has failed to prove the essential ingredients of the offence beyond reasonable doubt.

In view of the aforesaid, this Court finds that the judgment of acquittal passed by the learned First Additional Sessions Judge is based on proper appreciation of the evidence and does not suffer from any perversity or illegality warranting interference. The complainant has failed to prove that the cheque was issued towards discharge of a legally enforceable debt or liability. Accordingly, the criminal appeal is devoid of merit and is hereby dismissed.