Bir Singh vs Mukesh Kumar

3. It is the case of the appellant-complainant, that the respondent-accused issued a cheque being Cheque No.034212 dated 4-3-2012 drawn on Axis Bank, Branch, Palwal in the name of the appellant towards repayment of a “friendly loan” of Rs.15 lakhs advanced by the appellant-complainant to the respondent- accused.

4. On 11-4-2012, the appellant-complainant deposited the said cheque in his bank, but the cheque was returned unpaid with the endorsement “Insufficient Fund”.

5. The appellant-complainant has alleged that, on the assurance of the respondent-accused, that there would be sufficient funds in his bank account to cover the amount of the cheque, the appellant-complainant again presented the cheque to his bank on 23-5-2012, but it was again returned unpaid with the remark “Insufficient Fund”.

6. On 15-6-2012, the appellant-complainant issued a legal notice to the respondent-accused through his lawyer, calling upon the respondent-accused to pay the cheque amount. The said notice, sent by registered post, was according to the appellant- complainant, duly served on the respondent-accused. The respondent-accused, however, did not reply to the notice. Nor did he pay the cheque amount to the appellant-complainant. 3

7. The appellant-complainant filed a Criminal Complaint against the respondent-accused, being Case No.106 of 2012 before the Judicial Magistrate 1st Class, Palwal, under Section 138 of the Negotiable Instruments Act.

11. By a judgment and order dated 9-2-2015, the Judicial Magistrate I Class, Palwal convicted the respondent-accused under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of one year and further directed him to pay compensation of Rs.15 lakhs to the appellant-complainant within one month from the date of the said Judgment and order. Being aggrieved, the respondent-accused filed a criminal appeal No.13/2015 dated 9-3-2015 in the court of Additional Sessions Judge, Palwal.

12. By a judgment and order dated 20-2-2016, the Appellate Court upheld the conviction of the respondent-accused under Section 138 of the Negotiable Instruments Act and confirmed the compensation of Rs.15 lakhs directed to be paid to the appellant- complainant. The sentence of imprisonment was however reduced to six months from one year.

13. The respondent-accused filed a Criminal Revision Petition being CRR No.849 of 2016 in the High Court challenging the Judgment and order of the Appellate Court. The appellant- complainant also filed a Criminal Revision Petition being CRR No.2017 of 2016 challenging the reduction of the sentence from one year to six months.

14. By a common final Judgment and order dated 21-11-2017 which is impugned before us, the High Court has reversed the concurrent factual findings of the Trial Court and the Appellate Court and acquitted the respondent of the charge under Section 6 138 of the Negotiable Instruments Act, observing, inter alia, that there was fiduciary relationship between the appellant- complainant, an Income Tax practitioner, and the respondent- accused who was his client.

17. The Trial Court, on analysis of the evidence adduced by the respective parties arrived at the factual finding that the respondent-accused had duly issued the cheque in question for Rs.15 lakhs in favour of the appellant-complainant, in discharge of a debt or liability, the cheque was presented to the bank for payment within the period of its validity, but the cheque had been returned unpaid for want of sufficient funds in the account of the respondent-accused in the bank on which the cheque was drawn. Statutory Notice of dishonour was duly issued to which there was no response from the respondent-accused.

18. The Appellate Court affirmed the aforesaid factual findings. The Trial Court and the Appellate Court arrived at the specific concurrent factual finding that the cheque had admittedly been signed by the respondent-accused. The Trial Court and the Appellate Court rejected the plea of the respondent-accused that the appellant-complainant had misused a blank signed cheque made over by the respondent-accused to the appellant- complainant for deposit of Income Tax, in view of the admission of the respondent-accused that taxes were paid in cash for which the appellant-complainant used to take payment from the respondent in cash.

44. The appeals are allowed. The judgment and order of the High Court is set aside. The conviction of the respondent under Section 138 of the Negotiable Instruments Act is confirmed. However, the respondent-accused is sentenced only to fine, which is enhanced to Rs.16 lakhs and shall be paid as compensation to the appellant- complainant. The fine shall be deposited in the Trial Court within eight weeks from the date, failing which the sentence of 18 imprisonment of one year as imposed by the Trial Court shall revive. There shall be no order as to costs.