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Cites 2 docs
Section 138 in The Negotiable Instruments Act, 1881
Section 313 in The Code Of Criminal Procedure, 1973

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Madhya Pradesh High Court
Sheetal Gajbhiye vs Lahua on 6 March, 2013
                    Cr.R. No.645/2012
     Shri Pramod Thakre, counsel for the applicant.
     None for the respondent though notice of this

present revision application is served upon the respondent.

Heard on admission.

The applicant was convicted for offence punishable under Section 138 of the Negotiable Instrument Act vide judgment dated 23.2.2011 passed by the JMFC, Sausar, District Chhindwara in Criminal Case No.482/2008 with a fine of Rs.85,000/-. In Criminal Appeal No.93/2011 the learned Sessions Judge, Chhindwara dismissed the appeal vide judgment dated 24.11.2011. Being aggrieved with the aforesaid judgments the applicant has preferred the present revision.

The prosecution's case in short is that a loan of Rs.74,400/- was given by the complainant to the applicant including the material and cash. On demand the applicant gave a cheque to the complainant but when the cheque was submitted to the Central Bank of India, Sausar it was dishonored. Thereafter, a notice was issued and no payment was made by the applicant within the stipulated period and therefore, a complaint was filed.

The applicant abjured his guilt. He took a plea in his statement under Section 313 of Cr.P.C that he never gave such a cheque to the complainant. However, Sheetal Gajbhiye (DW1) was examined as a defence witness.

The learned JMFC after considering the evidence adduced by the parties convicted the applicant for offence punishable under Section 138 of the Negotiable Instruments Act but no specific sentence was granted but fine of Rs.85,000/- was imposed. The appeal filed by the applicant was dismissed.

After considering the submissions made by learned counsel for the applicant and looking to the evidence adduced by the parties before the trial Court, it is apparent that the applicant issued a cheque in the name of the respondent which was dishonored and after receiving a notice of demand the payment was not made within the stipulated period and therefore, offence is made out. The contention of the learned counsel for the applicant is not acceptable that the cheque was given for the security purposes. If reply of the notice Ex.P/5 is perused then it would be apparent that the advance cheque was given for supplying of the building material and therefore, if building material was not supplied then it was for the applicant to direct the concerned Bank for stoppage of the payment but the applicant did not take any step to do so and therefore, the defence taken in his notice Ex.P/5 appears to be incorrect. The applicant took a defence in her statement under Section 313 of Cr.P.C that she never gave a cheque to the respondent whereas the defence evidence was contrary to the defence taken by her and therefore, the version of the defence witness could not be believed. The trial Court has rightly convicted the applicant. There is no reason by which any interference can be done in the conviction directed against the applicant.

So far as the sentence is concerned the fine imposed by the trial Court is appropriate so that appropriate amount of compensation can be given to the respondent. Under such circumstances, there is no reason by which any interference can be made in both the judgments of the Court below by way of this revision.

Consequently, the revision filed by the applicant is hereby dismissed in motion stage.

(N.K. Gupta) Judge bina