The present petition has been filed against the judgment dated 02.04.2012 passed by the learned Principal Sessions Judge, Singhbhum East, Jamshedpur in Criminal Appeal No. 61 of 2010 by which the said appeal preferred by the petitioner-appellant has been dismissed affirming the judgment of conviction and modifying the order of sentence dated 03.02.2010 by reducing it to the period of one month passed by the learned Judicial Magistrate, 1st Class, Jamshedpur in C-1 Case No. 603 of 2008 (T.R. No. 709 of 2010), whereby the petitioner was found guilty under Section 138 of the Negotiable Instruments Act (in short "the N.I. Act") and sentenced to undergo simple imprisonment for six months and to pay compensation of Rs.35,000/- to the complainant-opposite party no.2.
2. The factual background of the case, as stated in the complaint filed by the complainant-opposite party no. 2, is that on 01.08.2007 the accused-petitioner approached the opposite party no. 2 for a friendly loan of Rs. 30,000/- as both were known to each other since long. The opposite party no. 2 gave him Rs.30,000/- in cash and the petitioner, issued cheque of I.D.B.I., Bank, Jamshedpur of Rs. 30,000/- dated 01.08.2007 in his favour for returning the loan amount and requested him to deposit the same after four months. The opposite party no.2 presented the said cheque in Bank of Baroda on 21.01.2008 which got bounced on account of insufficient fund in the account of petitioner and the said cheque was returned to Bank of Baroda by the IDBI Bank, Jamshedpur vide cheque return memo dated 22.01.2008. The further case of the opposite party no.2 is that he sent a legal notice to the petitioner on 16.02.2008 demanding the cheque amount and the said legal notice was received by his father. However, even after receipt of the said notice, the petitioner neither sent reply nor paid the cheque amount to the opposite party no.2 and thus the complaint was filed.
3. In the instant case, complainant-opposite party no.2 himself examined in support of his case whereas three defence witnesses including the petitioner were examined on behalf of the petitioner i.e., D.W. 1 Kamal Kumar Singh (the petitioner himself), D.W. 2 Anil Kumar Yadav and D.W. 3 Babu Lal Yadav.
4. The learned counsel for the petitioner submits that the courts below have failed to consider the fact that the essential ingredients to constitute the offence under section 138 of the N.I. Act are lacking in the instant case. It is further submitted that the opposite party no.2 has failed to establish the fact that the petitioner had received legal notice with regard to dishonour of the cheque as also the demand of the cheque amount. As such, institution of the case much less order taking cognizance itself is bad and illegal in the eye of law. The courts below have also not appreciated exhibit-A which is a written information given by public information officer of Bank of Baroda in respect of cheque of Rs.10,000/- issued by the opposite party no.2 and credited in the account of the petitioner. It is also submitted that the petitioner had taken friendly loan of Rs. 10,000/- from the opposite party no.2 through cheque of Bank of Baroda and the said amount was credited in the account of the petitioner. The opposite party no. 2 has made out a concocted story with regard to issuance of cheque of Rs.30,000/- by the petitioner due to previous grudge and enmity. The opposite party no.2 has not produced any single independent witness in support of his case and the documents have also not been duly proved by the persons who were competent to prove the same.
5. Heard the learned counsel for the parties and perused the materials available on record. The contention of the learned counsel for the petitioner is that the petitioner had taken friendly loan of Rs. 10,000/- from the opposite party no.2 through cheque as would be evident from Exhibit-A. So far as the cheque of Rs. 30,000/- is concerned, the same was given to the opposite party no. 2 in security of the said loan amount. However even after return of the loan amount, the cheque given to the opposite party no. 2 in lieu of security was not returned to him and the same was misused by the opposite party no.2 for lodging the present case.
6. The aforesaid contention was also raised before the Judicial Magistrate, 1st Class Jamshedpur, however the same was not accepted by the said court observing that the petitioner had filled the amount and date in the alleged cheque in his pen and signature and he did not make any complaint either before the police or the court that the opposite party no.2 dishonestly obtained the said cheque. It has further been observed that bouncing of cheque, and service of the demand notice within limitation period have also not been challenged and the opposite party no.2 has been able to prove the necessary ingredient of Sections 138 and 142 of N.I. Act by oral as well as documentary evidence. Thus a presumption under 139 of N.I. Act arose in favour of the complainant-opposite party no.2 and accused-petitioner failed to rebut the same by any cogent as well as acceptable evidence.
7. The appellate court also observed that the only dispute regarding the cheque is that as per case of the appellant-petitioner, it was given as a security whereas the case of the respondentopposite party no.2 is that the cheque was given to him in return of the friendly loan of Rs.30,000/-. The material on record brought by both sides indicates that the cheque bearing no. 726282 dated 01.08.2007 was issued by the petitioner in favour of the opposite party no.2 and vide Ext. 2, it was dishonoured due to insufficiency of fund. Legal notice was sent to the petitioner and when the amount was not paid, the present complaint was lodged. It has further been held that the evidence adduced by the petitioner does not find support of the documentary evidence and the petitioner has not succeeded to establish that only Rs. 10,000/- was taken as loan by him from the opposite party no.2.
8. In the case of Sheonandan Paswan Vs. State of Bihar & Ors, (1987) 1 SCC 288, the Hon'ble Apex Court has held as under:-
"88. There is no appeal provided by the Act against an order giving consent under Section 321. But the order is revisable under Section 397 of the Criminal Procedure Code. Section 397 gives the High Court or the Sessions Judge jurisdiction to consider the correctness, legality or propriety of any finding, sentence or order and as to the regularity of the proceedings of any inferior court. While considering the legality, propriety or the correctness of a finding or a conclusion, normally, the revising court does not dwell at length upon the facts and evidence of the case. The court in revision considers the materials only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
9. Though the learned counsel for the petitioner has contended before this court that the legal notice was not received by the petitioner, the said issue was not raised before the courts below. On the contrary, the concurrent finding of facts have been given by both the courts below that the notice was received by him and as such the said factual plea cannot be entertained at this stage. Moreover, the acknowledgement of the receipt of demand notice was duly marked as exhibit-6 without any objection of the petitioner, hence he cannot be allowed to challenge the same at the revisional stage.
10. Further contention of the learned counsel for the petitioner is that no independent witness was examined by the opposite party no.2 in support of his case and as such the courts below have wrongly passed the judgment of conviction and order of sentence against him. I do not find any substance in the said contention of the learned counsel for the petitioner. The opposite party no.2 was himself examined in this case who proved all the documentary evidences i.e the cheque, carbon copy of legal notice, acknowledgment and the cheque return memo given by the Bank showing insufficiency of fund in the account of the petitioner and thus the necessary requirement of 138 of the N.I. Act has been fulfilled against the petitioner. A case under section 138 of the N.I. Act generally uses to be based on the documentary evidence and if the necessary requirement attracting criminal culpability against any person under section 138 of the N.I Act is proved, there is no need to adduce any oral evidence to that effect. Though the petitioner has tried to contend that he had taken loan of Rs. 10,000/- which was already returned to the opposite party no. 2, yet the opposite party no.2 has specifically stated that apart from the said amount, the petitioner had also taken friendly loan of Rs. 30,000/- for which the present complaint was lodged which finds support from the evidences led by him.
11. In view of the aforesaid factual and legal position, I do not find any substance in the argument of the learned counsel for the petitioner that the impugned judgments have been passed by the trial court and appellate court in a mechanical manner, rather the same has been passed while elaborately discussing the
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evidences led by both the parties which consistently supported the case of the prosecution. 12. In view of the aforesaid discussions, I do not find any infirmity in the orders passed by the courts below so as to warrant any interference of this Court. Accordingly, the bail granted to the petitioner vide order dated 16.05.2012 passed by a Bench of this Court is cancelled. Since, the sentence of S.I. for six months awarded to the petitioner by the learned Trial Court has been reduced as one month by the appellate court and the petitioner has remained in judicial custody for about 20 days, he is directed to surrender before the court below to serve the remaining period of sentence in addition to making payment of compensation of Rs.35,000/- to the complainant-opposite party no.2 as awarded by the learned Trial Court. 13. The present revision petition is accordingly dismissed with aforesaid observation. 14. Let the original case record of C/1-603 of 2008 be remitted back to the concerned court below.