2016 (10) TMI 368 - HC - Indian Laws

Guilty for committing offence under Section 138 Negotiable Instruments Act - Held that - There is controversy as to the date when it was so executed; the word Liya or Diya mentioned in it are also disputed. The complainant did not examine any attesting witness to corroborate his version. Admittedly, the revenue stamp was affixed on the receipt subsequently; there are certain alterations in receipt (Ex.CW-1/3). It further records that the cheques in question were given to the complainant as security ( Bator Amanat Diye ). The complainant alleged that these words were incorporated subsequently by DW-2 (Ramesh Chandra) in connivance of the respondent. This receipt records that ornaments worth ₹ 2.30 lacs and ₹ 1.70 lac were given. It is, however, unclear whether the gold ornaments were given by the complainant to the respondent or vice versa. In the complaint, the complainant did not disclose if ornaments worth ₹ 2.30 lacs and ₹ 1.70 lacs were given by him to the respondent. The respondent examined DW-2 (Ramesh Chandra) and DW-3 (Ashok Kumar) attesting witnesses to the receipt (Ex.CW-1/3). They have supported the respondent s version. It was specifically denied that the words in Ex.CW-1/3 were manipulated or fraudulently inserted. At no stage, the complainant lodged any complaint for fabrication of the receipt (Ex.CWCrl. 1/3) though it continued to be in his possession. Contents of the receipt can t be permitted to be denied under Sections 91 and 92 of the Indian Evidence Act. It is amply clear from the evidence referred above that at the time of issuance of the cheques there was no outstanding liability on the respondent s part. The complainant has not established if any jewellery purportedly pledged by the respondent with him was ever returned to him. The appellant cannot be permitted to enjoy the alleged pledged jewellery as well as to ask for cheque amount given as security / entrustment. In the light of above discussion, impugned judgment suffers from no illegality.

Summary

Issues:
Challenge to judgment setting aside conviction and sentence under Section 138 Negotiable Instruments Act.

Analysis:
The appellant challenged a judgment setting aside conviction and sentence under Section 138 of the Negotiable Instruments Act, delivered by the Addl. Sessions Judge in Crl.A.No.04/2011. The Trial Court had found the respondent guilty of the offense, but the orders were overturned on appeal. The appellant, dissatisfied with the decision, filed the current appeal before the High Court. The appellant examined himself as CW-1, while the respondent appeared as DW-1 and witnesses DW-2 and DW-3 were also examined. The complaint alleged that the respondent issued two post-dated cheques as consideration for gold ornaments worth &8377; 4 lacs, which were dishonored upon presentation. The respondent failed to make the payment despite a legal notice being served.

The complaint lacked specific details regarding the acquisition of the gold ornaments, their weight, valuation, and the date of handing over. During trial, discrepancies emerged in the appellant's version, including the value of the pledged ornaments and the lack of documentation for the payment made. The authenticity of the receipt (Ex.CW-1/3) was also disputed, with alterations and uncertainties regarding the details recorded. The respondent's witnesses supported his version and denied any manipulation or fraud in the receipt. The evidence indicated that there was no outstanding liability on the respondent's part at the time of issuing the cheques, and the return of the purportedly pledged jewelry was not established. The judgment concluded that the impugned decision had no legal flaws, and the appeal lacked merit, leading to its dismissal. The Trial Court record was directed to be sent back promptly with a copy of the order.