Madhya Pradesh High Court
Channi Randhawa Dead Through The Leagl … vs M/S Goel And Goel A Partnership Firm on 9 July, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:30577
1 CRR-5991-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
CRIMINAL REVISION No. 5991 of 2024
CHANNI RANDHAWA DEAD THROUGH THE LEAGL
REPRESENTATIVES KU. SIMRAN RANDHAWA AND OTHERS
Versus
M/S GOEL AND GOEL A PARTNERSHIP FIRM
Appearance:
Shri R.S. Jaiswal - Senior Advocate assisted by Shri Rajmani Sharma - Advocate for
the applicants.
Shri Ajay Gupta - Senior Advocate assisted by Shri Suyash Shrivastava - Advocate
for the respondent.
Reserved on :18.06.2025
Pronounced on :09.07.2025
ORDER
With the consent of the parties, this Criminal Revision is finally heard.
2. This revision under Section 397 read with Section 401 of the Code
of Criminal Procedure/ under Section 438 read with Section 442 of the
Bhartiya Nagrik Suraksha Sanhita, 2023 has been preferred by the legal
representatives of the original accused/applicant against the judgment of
conviction and order of sentence dated 13.09.2024 passed by 2nd Additional
Sessions Judge, Itarsi, District Narmadapuram in Criminal Appeal
No.15/2019 arising out of judgment dated 28.03.2019 passed by the Judicial
Magistrate First Class, Itarsi (M.P.) in SCNIA No.300968/2013 affirming the
judgment of conviction and order of sentence passed by the trial court
whereby the applicant has been convicted under Section 138 of Negotiable
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TRIPATHI
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Instruments Act and sentenced to undergo R.I. for one year with
compensation amount of Rs.5,00,00,000/-
3. In nutshell, the complainant case before the trial Court was that M/s.
Goel “and” Goel partner Suresh Goel has filed a complaint stating that the
original respondent Channi Randhawa had borrowed Rs.2,24,17,500/-.
Respondent in October, 2012, he returned only Rs.80 lakh. On 03.06.2012,
the accused/applicant executed a contract to sell plot No.91 Industrial Area
Kheda Itarsi and bottling plant and machinery along with the license
Rs.3,20,00,000/- including previous borrowed money accused received
Rs.1,44,17,500/-.
4. Accused has further received Rs.1,50,00,000/-. Thus and only
Rs.25,82,500/- was to be paid within six months . After that, the applicant
has stated that the license could not be transferred except the licensee, no
other person can manufacture or bottle the liquor as per the terms of the
license. The contract dated 03.06.2012 was cancelled on 05.09.2012. Memo
of understanding was prepared and signed and he issued two cheques of
Rs.1,44,17,500/- and assured that within six months, rest of the amount shall
be paid. Both the cheques bounced and he was requested to make the
payment.
5. On 08.12.2012, there was a meeting between the applicant and the
accused person in the presence of Sunil, Jagdish Prasad Agrawal and Hemant
Singh R/o Chhindwara was also present. The accused requested not to initiate
the proceedings regarding dishonored cheques and issued a cheque
amounting to Rs.2,94,17,500/- No.014657 dated 15.07.2013 drawn in the
Signature Not Verified
Signed by: APARNA
TRIPATHI
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Bank of Allahabad, Branch Itarsi, and assured him that bank is sanctioning
him loan, he will repay the amount, he will repay the amount. A memo of
understanding was executed in the presence of witnesses and the witnesses
also signed the document when the cheque was presented on 15.07.2013, the
cheque was dishonored with the note that “the account has been closed”.
Notice was sent on 29.07.2013, cheque amount was demanded within 15
days. On 31.07.2013, the accused received the notice but replied and denied
that he has issued the cheque and also denied his liability and the payment
was not made, hence, the complainant filed the complaint on 29.08.2013.
Case was registered under Section 138 of the Negotiable Instruments Act.
6. During the pendency of the appeal, the accused died and appeal was
dismissed. As per the order of this Court a Legal Representatives, who are
applicant before this Court were permitted to continue the appeal and appeal
being dismissed, this revision has been preferred by the Legal
Representatives of the original accused Channi Randhawa.
7. Learned Senior counsel Shri R.S. Jaiswal on his oral and written
argument has submitted that as per Section 142(1)(a) the written complaint
may be filed by the payee or as the case may be, by the holder in due course,
of the cheque and in this case, the cheque was not issued to M/s. Goel “and”
Goel whereas the cheque was issued to Goel “N” Goel, thus the applicant
firm is not payee or holder in due course and to support this argument,
learned counsel for the applicant has relied in the case of Anil Das Bairagi
Vs. Smt. Nidhi Jain judgment dated 20.08.2019 and Kishore Goyal Vs. Hanif
Patel reported in 2010 SCC online MP 607 in which it has been held that
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“since, the complaint had been filed by a person in whose favour no cheque
was issued by the petitioner, therefore, in the opinion of this Court no
cognizance could have been taken against the petitioner for an offence
alleged to have been committed by the petitioner keeping in view sub-
section (1) of Section 142 of the N.I. Act.”
8. Learned counsel for the applicant has further submitted that
complainant Suresh Goel (PW-1) was from very beginning knowing that the
account has been closed when he got the cheques on 19.02.2012 and this fact
has been further supported by Branch Manager, Ajay Singh (PW-3) who has
affirmed that the account was closed on 19.09.2012, thus, on the date
15.07.2012, there was no account which was maintained and then no offence
could have been registered against the accused and the complaint is not
maintainable and liable to be dismissed as held in the case of M/s. Best
Buildwell Private Limited Vs. M/s. R.D. Sales in which the Delhi High
Court has held that “under Section 138 of N.I. Act, an offence is committed
when a cheque is drawn from an account maintained by the drawer and it is
returned unpaid due to insufficient funds. Even though the cheque return
memo may mention its reason for dishonor as “insufficient funds””.
9. Learned counsel for the applicant has further argued that as per the
provision of Bankers Book Evidence Act, 1891, the documents annexed in
support of the complaint could not have been read in evidence as they were
the computer print out entries of the account and that was barred under
Section 4 of the Bankers Books Evidence Act, 1891 as it does not have the
certificate required under Section 2A (a)(b)(c) and he has relied on the
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judgment of the this Court in the case of Subhash Kumar Sojatia Vs. Devilal
Dhakad passed on 31.08.2023 and he has also relied on the judgment in the
case of Omprakash Vs. CBI and others (2017) SCC Online Delhi 10249.
10. Learned Senior Advocate for the applicant has further argued that
Ex.P/24, P/25 and P/26 are not admissible in evidence as these documents
pertain to transaction of the immovable property and these documents were
compulsorily registrable under Section 17(b)(c) of the Registration Act
including M.P. State Amendment, 2010 and could not be used for collateral
purpose also. He has further submitted that the documents are not properly
stamped as required under Stamp Act. He has relied on the judgment of K.B.
Saha and sons Private Limited Vs. Development Consultant Ltd., (2008) 5
CTC 260 particularly para No.34 of the judgment, the judgment of the this
Court in the case of Omprakash Vs. Ganesh Shankar Mehta passed on
01.08.2019 and Bajaj Auto Limited Vs. Behari Lal Kohli AIR 1989 SC 1806
in these cases it has been clearly held that if the document is inadmissible for
non-registration, all its terms are inadmissible including the one dealing with
landlord’s permission to his tenant to sub-let.
11. Learned Senior Advocate for the applicant has further submitted
that the applicant was not given the proper opportunity for the cross-
examination of expert and other witnesses and in these circumstances, when
the applicant was not given the proper opportunity to defend himself, he
could not have been convicted in the absence of a fair trial and on that point
he has also relied on the judgment in the case of Natasha Singh Vs. CBI
2013 AIR SCW 3554 and in the case of Sanjeeva Rao Vs. State of A.P., AIR
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TRIPATHI
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2012 SC 2242 and also Hoffman Andreas Vs. Inspector of Customs Amritsar
(2000) 10 SCC 430. T. Nagappa Vs. Y.R. Murlidhar AIR 2008 SC 2010 and
the judgment of this Court in the case of Chiman Singh Sultan Singh & Ors.
Vs. State of Madhya Pradesh AIR 1960 MP 394.
12. He has also submitted that applicant was not given opportunity to
defend his case by examining the handwriting expert and examination of the
ink of writing in the cheque and the documents and thus, he had not got the
proper opportunity to put his case before the Court and on that, he has relied
on the judgment in the case of State of Maharashtra Vs. Damu Gopinath
Shinde, AIR 2000 SC 1691 , Keshav Dutt vs. State of Haryana 2010 AIR
ONLINE 2010 SC 345 and the judgment in the case of T. Nagappa Vs. Y.R.
Murlidhar 2008 SC 2010, Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam
(Mrs.) (2007) 2 SCC 258.
13. Learned senior Advocate for the applicant has also submitted that
the applicant failed to prove that he lent the amount in question and in that he
has relied on the judgment of the Apex Court in the case of John. K.
Abraham Vs. Simon C. Abraham and Ors. in CC No.607/2022.
14. Learned Senior Advocate for the applicant has further argued that
the respondent failed to demonstrate that he has capacity to pay the loan as
such a huge amount and if he failed to demonstrate that the presumption
under Section 139 of the N.I. Act is rebutted and as held in different
judgments that if accused raises a plausible defense, such as questioning the
complainant’s financial capacity, especially in cash transactions, the
presumption under Section 139 shall be rebutted and to substantiate this
Signature Not Verified
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TRIPATHI
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argument, he has relied on the judgment in the case of Basalingappa Vs.
Mudibasappa (2019) 5 SCC 418, Bharat Barrel & Drum Manufacturing
Company Vs. Amin Chand Pyarelal, K. Subramani Vs. K. Damodar Naidu
(2015) 1 SCC 99 and judgment of this Court passed in Jagdish Vs. Jitendra
on 25.04.2024 and also on the judgment of S. Murugan Vs. M.K.
Karunagaran and also relied on the judgment of Apex Court in the case of
Aps Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers on
14.02.2020.
15. Lastly, learned senior Advocate for the applicant has submitted
that the trial Court has awarded Rs.5crore as a compensation. Ordinary the
compensation as provided under Section 357(5) of the Cr.P.C., the
compensation amount should be lesser than amount which can be granted by
a Civil Court upon appreciation of the evidence brought before the over the
losses which might have been reasonably suffered by the plaintiff, the
quantum of compensation may be determined by taking into account the
nature of the crime, the justness of the claim by the victim and ability of
accused to pay. On this point, he has relied on the judgment of the Apex
Court in the case of Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. and
Another on 10.04.2007 where it has been clearly held that “it is, therefore,
seen that consideration for payment of compensation is somewhat different
from payment of fine. It is, to the said extent, applied differently. As would
be noticed a little later, it is necessary to probe into the capacity of the
accused to pay the amount and the purpose for which it is directed to be
paid”. Further relying in para No.11 of the judgment in the case of Hari
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TRIPATHI
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Singh Vs. Sukhbir Singh & Ors. (1988) 4 SCC 551 has held that “the
payment by way of compensation must, however, be reasonable. What is
reasonable, may depend upon the facts and circumstances of each case. The
quantum of compensation may be determined by taking into account the
nature of crime, the justness of claim by the victim and ability of the accused
to pay. If there are more than one accused they may be asked to pay in equal
terms unless their capacity to pay varies considerably. The payment may also
vary depending upon the acts of each accused. Reasonable period for
payment of compensation, if necessary by installments, may also be given.
The Court may enforce the order by imposing a sentence in default” and also
relied on the judgment in the case of Sushil Ansal Vs. State Thr. CBI 2014
AIR SCW 2689 and Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd.
(2007) 6 SCC 528 and submitted that an amount awarded as compensation
was twice what ordinarily, could be granted by a Civil Court upon
appreciation of the evidence brought before it for losses which might have
reasonably been suffered by the plaintiff. Lastly submitted that the judgment
of the trial Court as well as Appellate Court suffers the illegality and
perversity that could not be held, hence, the applicant be acquitted and
sentence of the compensation amount be quashed.
16. On the other hand, learned counsel for the respondent has
submitted that the Goel “and” Goel and Goel “N” Goel is an artificial
difference created by the applicant, as the cheque was given to Goel “and”
Goel, some persons write it Goel “and” Goel and some write it Goel “N”
Goel. There were the transactions as proved by the Bank statement and
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TRIPATHI
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documents Ex.P/24, P/25 and P/26 and the cheque issued by the original
accused, notice (Ex.P/30) was issued to applicant and in reply to that notice
(Ex.P/32), he nowhere has stated that cheque was not issued to the
complainant firm or was issued to any other firm Goel “N” Goel. Regarding
the transaction, he has also submitted the documents Ex.P/33 and P/34 that
clearly demonstrate that the cheque was issued to complainant firm only.
17. Learned counsel for the respondent has further submitted that the
statement of complainant is supported by independent witnesses Hemant
Singh (PW-2), Pravesh Malvi (PW-4) and Ajay Singh (PW-3) and nothing
has been brought on record in their cross-examination by which it can be
inferred that the cheque was not issued to the complainant firm and they have
proved that the amount was borrowed by the original accused, for his
business, the accused has taken the false defence that he was working as a
Director in the company and the payment were made to him, as he was
working as Liaison Officer.
18. Learned counsel for the respondent has further stated that the
accused failed to demonstrate that Simran Industries on whose letter head
agreement were made, firm was being operated by the complainant in the
same address. In para No.14, accused has admitted that the disputed account
number shown in Ex.P/27 bears his account number and he has closed that
account and reopen the account in another branch of the same Bank.
19. He has further submitted that in para No.20 of his cross-
examination that the entries made in Ex.P/5 were received by him from the
Bank account and the amount of Rs.25,00,000/-, 40,00,000/- and 15,00,000/-
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TRIPATHI
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were repaid by him and the entries are proper in Ex.P/38. He has also
admitted that the entries mentioned in Ex.P/5, total amount of
Rs.2,24,17,500/- was received by him and the amount he repaid to the
complainant was Rs.80,00,000/- only.
20. He has also admitted that as per the entry, he has received
Rs.2,24,17,500/- between 08.04.2011 to September, 2011. He has also
admitted that he has submitted documents Ex.P/31, P/40, P/41 and P42 to the
Excise Officer.
21. Learned counsel for the applicant has submitted that most of the
facts of the complaint has been admitted by the original accused. Original
accused got the opportunity to examine, handwriting expert but he has not
examined that witness and thus, the trial and Appellate Court have properly
appreciated the evidence on record, no case of interference is made out.
22. Heard the parties and perused the record.
23. Brief facts during the development of trial are that when the
cognizance was challenged before the Court of Additional Sessions Judge,
Itarsi by Revision Petition No.125/2013 that was filed challenging the order
of cognizance, was dismissed, by order dated 20.12.2013. By order dated
15.01.2014, framing of the charge was challenged that was dismissed by the
revision petition No.35/2014 vide order dated 14.03.2014. A revision
petition being aggrieved with the order dated 13.05.2014 was filed before the
Additional Sessions Judge with the order passed by the trial Court by which
the application under Section 91 of Cr.P.C. of the accused was dismissed, as
per the order annexed with the record, revision petition No.67/2014 was
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TRIPATHI
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dismissed by order dated 20.06.2014 by Additional Sessions Judge, Itarsi.
Revision being aggrieved with the order passed under Section 45 of the
Evidence Act dated 22.08.2014 by the trial Court was challenged in revision
petition No.162/2014 dated 10.04.2015 that was dismissed and the petition
under Section 482 of Cr.P.C. was filed before this Court that was registered
as M.Cr.C. No.36984/2018 being aggrieved, with the order passed under
Section 311 of Cr.P.C. that was rejected by the trial Court, was dismissed by
this Court.
24. Furthermore, in subsequent stage, the trial Court had allowed the
petition under Section 45 of the Evidence Act, 1872 and ordered that the
cheque and the document signature in the memo of understanding (Ex.P/24)
and (Ex.P/25) were examined by the handwriting expert Neeraj Sharma and
report dated 26.03.2018 is annexed with the record in which it has been
mentioned that no definite opinion be given regarding the authorship of the
questioned documents.
25. On the point of relation between the parties, from the cross-
examination of the complainant and respondent, it is clear that both the
persons were knowing each other and were also related somewhat by their
business and it is also admitted that the original accused was having the
business of mineral water and that witness did till 1998-2002 as stated in
para No.2 of the cross-examination.
26. The accused has taken the defence that he was working in the
complainant’s company as the Liaison Manager, but this amount of
Rs.2,24,17,500/- was given him as a liaisoning fee could not be believed.
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TRIPATHI
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Furthermore, regarding that the applicant was also running the firm called
Simran Industries and this fact has been admitted by the complainant that he
was also running the firm in name of the Simran Industries. But in the cross-
examination, the accused has admitted that Ex.P/24 to Ex.P/26, letter pad of
Simran Industries belongs to his Industry. Thus, this fact is admitted that
without content, that document Ex.P/24 to Ex.P/26 in which a different
agreements were executed were of the firm of the accused Channi
Randhawa.
27. On the point of admissibility of the document, as per Section 49 of
the Registration Act, the case law cited before this Court, it is clear that
Ex.P/24 is a memorandum of understanding and as by that, there is
agreement to transfer the immovable property i.e., plot no.99 Industrial Area
Kheda, Itarsi and the bottling plant on that along with the Excise license, was
made for Rs.3,20,00,000/- the amount of consideration is mentioned in that
case, the document being not registered cannot be used for the purpose of the
sale agreement regarding the immovable property. But as per the amended
Section 49 of the Registration Act, still it can be used to demonstrate that
money was paid whereas implication of the insufficiency of stamp is related,
once that document is exhibited then as per Section 36 of the Indian Stamp
Act and admitted in evidence, it could not be challenged later on, and in this
document there is admission that the original accused has received
Rs.1,44,17,500/- and received Rs.1,50,00,000/- on the date of agreement i.e.
03.06.2012 and will receive an amount of Rs.25,82,000/- within six months.
28. On the point of admissibility of the document in the judgment of
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Bapu S/o Ram Singh Vs. Bahadur Singh S/o Lal Singh Rajpoot 1995 SCC
Online MP 35 , this Court in the case of same facts when an agreement was
executed for purchase of the agricultural land and the agreement was not
honored the suit was filed for repayment of Rs.900/- that was paid to the
seller, the matter was raised that the document could not be used as a
collateral purpose this Court in para No.10 held as under:-
“The language of Section 49 of the Registration Act is clear. There
cannot be any other interpretation than indicated by plain language
of the section. In view of provisions of Section 49, such document
cannot be used for affecting any immovable property comprised
therein or for confer any power to adopt or cannot be received as
evidence of any transaction affecting such property or conferring
such power. In the present case the property was not transferred at
all. The right of cutting the grass was also not accepted by
respondent in favour of appellant. Therefore, the ratio of Kalika
Prasad Ojha v. Mt. Jhenjho Kuar, of Patna High Court will have to
be followed. Decisions of Rajasthan and Allahabad High Courts
are irrelevant to issue in question. Thus, I hold that in the present
matter, the said document which was not registered should have
been received by the Courts below on the point of payment of Rs.
900-00 and pecuniary liability on collateral point in that context,
though the said document was not registered as required by
Section 17 of the Registration Act.”
29. Thus, the document to Ex.P/24 to P/26 after the amendment can
also be used for the money transaction. Though the Bank statement
submitted by the applicant are not annexed with the certificate as required
under Section 2 of Bankers Book Evidence Act, 1891 but the original
accused has admitted that he has borrowed the money as stated in the
cheque.
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TRIPATHI
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30. Furthermore, in the memorandum of understanding Ex.P/25, the
same fact on the same reasons is admissible regarding the receipt of the
money that is not affecting the immovable property and it shall not be treated
evidence that agreement was made to purchase the plot or bottling plant but
to the receipt of the money, it can be used as evidence and in this it has been
clearly mentioned in that Rs.2,24,17,500/- were received by the original
accused person and to pay that amount, cheque No.014654 dated 12.09.2012
and cheque No.014655 dated 19.09.2012, each having amount of
Rs.1,44,17,500/-. Thus, total Rs.2,88,35,000/- were handed over to the
original complainant. It was also promised to pay rest of the amount
Rs.5,82,500/- within six months and as per the minutes of the meeting is
concerned, it was agreed that applicant is handing over the cheque
No.014657 dated 15.07.2013 to Allahabad Bank Branch Itarsi of
Rs.2,94,17,500/- and shall make payment of that amount and the cheque as
admitted is of the account maintained by respondent Channi Randhawa.
31. On the point of transaction, the collateral document have to be
seen Ex.P/33, the document was issued by General Managar, District
Commerce and Industry Center, Hoshangabad to M/s. Simran Industries,
there is a mention that as per the Madhya Pradesh State, Industrial Land and
Industrial House Management Rule 2008 para No.19(a), if the reconstruction
of the firm or company of the original allottee, the share of the allottee
becomes less or the original allottee becomes separate from the industry, it
shall be deemed transfer and in such cases as per para No.19(b)(c), if the
plant and machinery was sold to the third person then agreement or the
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purchaser or buyer had to be executed agreement and the sanction of the
industry department had to be taken after that, the land could be transferred.
Thus, it was a letter written to the accused company.
32. Furthermore, on the business from the admission of the original
accused person that he had constructed the industrial unit on the land allotted
by the industrial department and got the license and was operating the
bottling plant of India made foreign liquor, this fact is proved by Ex.P/39 to
Ex.P/42.
33. Regarding the transaction written in Ex.P/24 to Ex.P/26, the other
witnesses Hemant Singh (PW-2), and Pravesh Malvi (PW-4) have supported
the complainant. From the statement of these witnesses, it has been clearly
stated that the document Ex.P/24 was executed by the original accused in
their presence.
34. On the cross-examination of Hemant Singh (PW-2), it has been
tried to show that he is interested witness as he is knowing Suresh Goel
(PW-1) since 1981, the same fact has been suggested to Pravesh Malvi (PW-
4).
35. Witness Ajay Singh (PW-3) who is a Bank Manager of Allahabad
Bank, Itarsi Branch has stated that an account number
2061023086 mentioned in the cheque as Ex.P/27 is the account of Channi
Randhawa and Ex.P/27 cheque was issued to Channi Randhawa to operate
his account and this cheque was presented before by the Goel “and” Goel for
the payment as the account was closed hence, the cheque was dishonored and
memo (Ex.P/28) and (Ex.P/29) were issued by his Bank. This witness has
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also clearly stated that Ex.P/27 A-A bears the signature of Channi
Randhawa.
36. This witness has further stated that Ex.P/19 to Ex.P/23, statement
was issued by their Branch. He has brought the statement of firm Goel “and”
Goel of account No.20610185148 from 01.04.2011 to 31.03.2012 and in
Ex.P/19 due to clerical mistake, it has been written Goel “N” Goel whereas
the original name is Goel “and” Goel. Ex.P/19 to Ex.P/23 statement belong to
the firm Goel “and” Goel of the said account and the account was opened in
the name of firm Goel “and” Goel.
37. In the cross-examination, this witness has admitted that in Ex.P/27
there is no entry that the cheque was submitted for the payment before their
Bank except the memo annexed with that and admitted that in Ex.P/37, he
has admitted after amendment “N” to “And” and statement Ex.P/19 to
Ex.P/23 was issued by their Branch and also admitted that Ex.P/19 to
Ex.P/23 does not bear the seal of the Bank and also not the signature of the
concerned official but has stated that it is a computer generated document.
38. Regarding the Goel “N” Goel and Goel “and” Goel, the
controversy is concerned, in reply to notice, Ex.P/32 the original accused has
never stated that the cheque was issued to any other Goel “N” Goel and the
cheque was used by the Goel “and” Goel and in opposite to that, he has
bluntly denied that any cheque was issued in favour of the applicant.
39. From the cross-examination, the original accused has clearly
admitted that he has received an amount of Rs.2,24,17,500/- and also
admitted that previously he has returned only total Rs.80,00,000/- then
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nothing remains to be discussed. Furthermore, the firm ‘Goel “N” Goel’ or
‘Goel “and” Goel’, the partners are the same persons as Ex.P/36.
40. The accused has also admitted that the term loan was granted in his
favour of Rs.1.65 crore and the amount term loan or cash credit limit 2crore
was sanctioned by the Bank and the payment was made in September,
October, 2012 that also justify the transaction mentioned in Ex.P/26 that was
executed on 08.12.2012.
41. Furthermore, in the case under Section 138 of N.I. Act, 3 Judges
Bench of the Apex Court in the case of Rangappa Vs. Shri Mohan (2010) 11
SCC 441 held that the presumption under Section 139 includes the
presumption that their exists legally enforceable debt or liability, however,
this presumption is rebuttable in nature.
42. From the above, it is clear that the respondent has failed to prove
that there was no legal recoverable debt against the accused.
43. On the point that the cheque was taken out by the applicant as the
applicant and accused were sharing a common office, on this point as this
defence has been raised by the accused then liability was upon him to prove
this fact and when in cross-examination, he was asked, he has not mentioned
this fact in his reply Ex.P/32 of the notice as admitted in para No.30 of the
cross-examination and also failed to disclose the address where the applicant
and accused were working in a common office and his cheque books were
kept.
44. Thus, it is clear that the cheque was issued by the original accused
person for the payment of legal recoverable debt that was dishonored due to
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Bank account was closed and as per the judgment of NEPC Micon Limited
Vs. Magma Leasing Private Limited (1999) 4 SCC 253, the Apex Court have
clearly held “that the return of cheque by the Bank unpaid on the ground that
“account is closed” could mean that the cheque is returned as unpaid on the
ground that the amount of money standing to the credit of account is
insufficient to honor the cheque and the reason is that the cheque was
dishonored as amount of money standing to credit of that account was nil at
the relevant time apart from it being closed.”
45. Further held that “the closer of account would be an eventuality
after the entire amount in the account is withdrawn, it means that there was
no amount in the credit of that account on the relevant date when the cheque
was presented for honoring the same. The expression “the amount of money
…. is insufficient to honor the cheque” is species after issuing the cheque
drawn an account is maintained, if the drawer closes that account apart from
the fact that it may amount to another offence it would certainly be an
offence under Section 138″. Thus, it has no value that the complainant from
the very beginning was knowing that the account was closed or the cheque
was dishonored due to the reasons that the account was closed.
46. Thus, looking to the argument and case law cited by the parties, as
discussed above, if the Bank account statement is not taken into
consideration due to bar of Bankers Book Evidence Act, 1891 from the
statement of the accused and the document annexed with the transaction and
by the document, this fact has been brought on record that complainant was
doing business of food supply through railway canteen. He was having
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another firm Simran, his family incorporated a company for bottling plant of
liquor, purchased plot in Industrial Area. Thus, have financial capacity to
earn the amount of loan of original accused and the circumstances have
clearly made out that an accused was doing the business of bottling of India
made foreign liquor and in that he was in need of money and he received
time and again the money from the original complainant and he wanted to
sell the plant but due to some technical and legal reasons, it could not have
been done. He agreed to repay the money and on that the cheque was issued
and the cheque was dishonored as account being closed. Thus, the applicant
failed to prove that the cheque was wrongly taken by the original
complainant as he failed to demonstrate that the joint office was and the
applicant was having opportunity to take the cheque without the knowledge
of the applicant.
47. Furthermore, that the cheque was issued to ‘Goel “and” Goel’ as
there were discrepancy in the account of ‘Goel “and” Goel’ and ‘Goel “N”
Goel’ but the transaction cheque was originally issued to ‘Goel “and” Goel’
the partnership firm Suresh Kumar Goel (PW-1) and the document Ex.P/24
to Ex.P/26 as discussed above are admissible evidence to prove the
transaction of the money, applicant/accused failed to demonstrate that the
amount shown in the account statement was paid to him, as payment of
bottles in relation to the business of the complainant firm of restaurant and
food supply as the complainants witness was closed in the year, 1998-2002
and he also failed to demonstrate that as a Director in the company, he was
paid the amount shown in the statement as the liaisoning charges and in
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these circumstances, no case of interference is made out.
48. Also considered the amount of compensation, it is clear from the
above discussion that the cheque issued for the commercial purpose and the
amount is Rs.2,24,17,500/- if the minimum rate of interest of 9% is
calculated, the interest amount comes to Rs.2,42,10,900/- and the interest in
the commercial transaction is more than the Bank rates hence, the
compensation could not be treated as exorbitant. On the point that the
accused was not given proper opportunity to defend himself, from the record
of the trial Court, it is clear that the charge were framed on 15.01.2014 and
the trial was concluded on 20.03.2019. Applicant was given opportunity to
examine the document by handwriting expert, he was given the ample
opportunity to examine defence witnesses. From the record of the trial Court,
it does not appear that he has not got opportunity to defend himself, hence,
the case law cited by the applicant are not helpful to the applicant.
49. Looking to all these facts and circumstances, no interference is
made out, hence, conviction of the trial Court as well as Appellate Court is
upheld. Hence, order of the trial Court regarding the compensation is
maintained.
50. Revision being devoid of merits is dismissed.
(DEVNARAYAN MISHRA)
JUDGE
AT
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