2019 (1) TMI 1494 - HC - Indian Laws

Dishonor of Cheque - offence punishable under Section 138 of Negotiable Instruments Act - acquittal of accused - Held that - It is apparent on the face of the record that the learned Judge has recorded findings in consonance with the facts on record and has appreciated the documents as well as the evidence in accordance with law. It is also apparent on the face of record that it is not the respondent no.1, but it is the applicant/complainant, who has cheated the present respondent no.1. The fact that the cheque issued towards the LIC and the cheque presented by the applicant for encashment are one and the same. The cheque number of both cheques is 169764. It was fortunate that the accused/respondent no.1 had drawn a photocopy of the cheque prior to submitting the same for the purpose of drawing the LIC policy. The evidence on record speaks for itself. In fact the accused -respondent no. 1 had also warned the applicant/complainant that he would initiate prosecution against the complainant. However, since the applicant had initiated criminal proceedings against respondent no.1 under Section 138 of Negotiable Instruments Act, he had not taken any steps. The LIC of India or the accused -respondent no.1 would reserve their rights to initiate the criminal proceedings against the applicant for forgery and fabrication of documents. Since the respondent no.1 had to go through the trauma/ordeal of the criminal prosecution for a period of ten years, the application seeking leave to appeal is dismissed with costs - application dismisssed with costs.

Summary

Issues:
Application seeking leave to appeal challenging the judgment and order acquitting the respondent for the offence under Section 138 of Negotiable Instruments Act.

Analysis:
The case involved the applicant, an LIC Agent, and respondent no.1, who issued a cheque to the applicant for a Life Insurance policy but later claimed it was for personal medical expenses. The cheque was dishonored, leading to a legal dispute. The applicant alleged that the respondent misused a blank cheque issued for the insurance policy, leading to criminal proceedings under Section 138 of the Negotiable Instruments Act.

The applicant's evidence included details of multiple cash transactions and loans given to the respondent, totaling ?1,90,000, with a demand for ?2,40,000. The respondent countered by claiming the cheque was for the policy, subject to finalization after consulting family members. The respondent also accused the applicant of forgery and fabrication of documents, leading to an ordeal of a ten-year trial.

Witness testimonies, including that of Rameshkumar Jaiswar, who filed a complaint against the applicant, and Sonali Patwa, a LIC Manager, were presented. The court noted discrepancies in the applicant's evidence, including variations in loan amounts and ATM withdrawals in different locations on the same day. The court found in favor of the respondent, concluding that the applicant had cheated the respondent, misused the cheque, and fabricated documents.

The judgment highlighted the breach of trust by the applicant, affecting the relationship between LIC and its insured. The court criticized the applicant's malafide practices, leading to the demotion by LIC. The court dismissed the application seeking leave to appeal, ordering the applicant to pay costs to the respondent and allowing the respondent to seek withdrawal of the amount. The judgment emphasized the potential for criminal proceedings against the applicant for forgery and fabrication of documents, urging LIC to suspend agents engaged in such practices.