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2004 DIGILAW 174 (ORI)

SUNIL KUMAR CHOUBEY v. PRAMOD CHANDRA PURI

2004-03-31

A.S.NAIDU

body2004
JUDGMENT : A.S. Naidu, J. - This is an application u/s 378(4) Code of Criminal Procedure seeing special leave to appeal against an order of acquittal dated 22.3.1999 passed in Criminal Appeal No. 115/90 of 1997-95 by the learned Add!. Sessions Judge, Rairangpur. 2. The dispute relates back to the year 1994. The present Petitioner filed a complaint petition before the learned S.D.J.M. Rainrangpur, inter alias, alleging that the accused-Opp. party' who is a businessman-cum-Contractor approached him requesting to advance a sum of Rs. 8,000/- on 25.1.1994 to enable to him to make payment to his labourers on the ground that he was not able to withdraw the amount from Mayurbhanj Central Co-operative Bank, Baripada Branch. The relationship between the complainant and the accused being good, in good faith, the complainant advanced the said amount to the accused in cash and the accused issued a cheque on Mayurbhanj Central Co-operative Bank bearing No. 27352 dated 25.1.1994 in the name of the complainant for an amount of 8,0001-. The complainant on 12.4.94 presented the said cheque for encashment, but the same was bounced as the balance in the account of the accused was not sufficient. After receiving the intimation regarding dishonour of the cheque, the complainant on 27.4.94 served a legal notice through Regd. Post demanding Rs. 8,000/- Though the notice was received by the accused on 5.5.94 he did not repay the amount within the prescribed period. Thereafter, the complainant was constrained to file a complaint against the accused for commission of an offence u/s 138 of the N.\. Act. The said complaint was registered as ICC No. 50 of 1994. 3. The defence of the accused was one of complete denial. It was pleaded that he had never taken Rs. 8,000/- in cash from the complainant and that he had given a cheque of Rs. 8,000/- to the complainant for depositing in Cheat Fund game. 4. The complainant examined two witnesses out of whom P.W. 1 was the Branch Manager and P.W. 2 was the complainant himself. The accused did not examine any witness. 5. The Trial Court believing the prosecution case, held the accused guilty of the offence u/s 138 of the Negotiable Instruments Act, convicted him there under and sentenced him to undergo S.I. for a period of six months and pay fine of Rs. 500/- in default, to undergo further S.I. for one month. The accused did not examine any witness. 5. The Trial Court believing the prosecution case, held the accused guilty of the offence u/s 138 of the Negotiable Instruments Act, convicted him there under and sentenced him to undergo S.I. for a period of six months and pay fine of Rs. 500/- in default, to undergo further S.I. for one month. Against the said orders of conviction and sentence, the accused-Opp. Party preferred an appeal therefore the learned Add!. Sessions Judge, Rairangpur. The main contention raised in the appeal was that the complaint petition was not maintainable. According to the complaint and in consonance with the evidence of P.W.2, the complainant paid a sum of Rs. 8,000/- to the accused on 25.1.94. on the said date, the cheque, Ext.-4 alleged to have been handed over to the complainant. The cheque was presented three months after i.e. on 12.1.94 and it bounced. It was returned to the complainant by the Bank on 12.4.94. It was alleged that the complainant issued a notice to the accused and the accused did not pay the amount within 15 days. But then, in cross examination, PW.2 has stated that he presented the cheque for the first time on 3:2.94 and the same was returned back to him on 10.2.94. He issued a notice on 19.3.94 as would be evident from Ext-B. It appears that the complainant did not file any complaint against the accused within the time limit, but again presented the cheque in Bank for encashment. 6. Analysing the conduct of the complainant and the provisions of the Negotiable Instruments Act, the Appellant Court arrived at a 'conclusion that the complainant had failed to file the complaint within 15 days from the date on which the cheque was dishonoured and that the cheque was presented for the second time after 15 days of dishonour and as such, the complaint petition was not maintainable. On the basis of aforesaid analysis, the order of conviction and sentence passed by the Court below was set aside. 7. Mr. Das, Learned Counsel for the Petitioner forcefully submitted that under the provisions of the N.!. Act, there is no bar to present the cheque for the second time or as a matter of fact, as many times as he desires during the period of its validity. Learned Counsel for the opp. 7. Mr. Das, Learned Counsel for the Petitioner forcefully submitted that under the provisions of the N.!. Act, there is no bar to present the cheque for the second time or as a matter of fact, as many times as he desires during the period of its validity. Learned Counsel for the opp. party, however, strongly repudiated the said submission and stated that the complaint may present the cheque as many times as he desires, but the cause of action for filing the complaint u/s 138 of the Negotiable Instruments Act commences from the date when the cheque bounced on its first presentation when notice was issued and was received by the accused. 8. A reading of Section 138 of the N.!. Act reveals that following ingredients are to be satisfied to prosecute the drawer for an offence under the said section: (A) A cheque to be drawn for payment of an amount for discharge of a debt/liability; (B) The cheque has to be presented during the period of its validity; (C) The cheque must be bounced or dishonoured due to want of funds in the account; (D) The payee must have made a demand for payment of money by giving notice in writing to the drawer within 15 days; and (E) The drawer must have failed to make payment within 15 days of receipt of notice. 9. A composite reading of Section 138 and 142 of the N.!. Act clearly reveals that cause of action arises only once, that too on bouncing of the cheque. The payee may acquire a fresh right of presentation of the cheque on its dishonour, but then no fresh cause of action arises. The SC in the case of Sadanandan Bhadran Vs. Madhavan Sunil Kumar has held that once a notice under Clause (b) of Section 138 of the N.I. Act is issued by the payee and received by the drawer, the payee forfeits his right to again present the cheque, as cause of action accrues when there is failure to pay the amount within the prescribed period and the period of limitations starts to run and the same cannot be stopped on any account. The period for filing the complaint has to be reckoned from the date immediate falling the day on which the period of 15 days from the date of receipt of the notice by the drawer expires. 10. The period for filing the complaint has to be reckoned from the date immediate falling the day on which the period of 15 days from the date of receipt of the notice by the drawer expires. 10. In view of the aforesaid clear position of law. I have no hesitation to hold that the appellate Court has not committed any error of law. It is well settled that the High Court should be slow in reversing the order of acquittal and unless there are good or strong grounds the order of acquittal should not be interfered with. The High Court should not set at naught the order of acquittal unless it is satisfied that the view taken by the Court below while acquitting the accused is extremely perverse and is not reasonably justifiable on the evidence on record. Examining the present case in the touchstone of the aforesaid principle, I am satisfied that the Appellate Court has not acted illegally or with material irregularity and the order of acquittal does not suffer from vice of either non-consideration of facts or erroneous consideration of facts and/or law and the same is also not preverse. I am, therefore, not inclined to grant any leave to appeal against the order of acquittal. The Criminal Misc. Case is, accordingly, dismissed. Final Result : Dismissed