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Gauhati High Court · body

2010 DIGILAW 530 (GAU)

Prabin Deka v. Bhagirath Jaiswal

2010-08-02

B.D.AGARWAL

body2010
1. This appeal is directed against the judgment and order dated 7.6.2003 passed by the learned Judicial Magistrate, Golaghat in C.R.Case No.873 of 2002 ,whereby the learned Magistrate has dismissed the complaint filed by the complainant under Section 138 of the Negotiable Instrument Act, 1881. Hence this appeal is at the instance of the complainant.2. Heard Mr. J Singh, learned counsel for the appellant and Mr. S M Rahman, learned counsel for the respondent. I have also perused the impugned judgment as well as oral and documentary evidence tendered by the complainant in the trial court.3. The appellant’s case is that in the course of business transaction the accused/respondent had taken loan of Rs.1 lac on 18.2.2002 and with a view to return the loan money the accused issued cheque No.488888 on 20.4..2002. The said cheque was drawn on Punjab National Bank (in short PNB ), Golaghat Branch. It is the further case of the appellant that the cheque was deposited in his account at Vijaya Bank, Golaghat Branch on 22.4.2002 and on the very next day his bank intimated that the cheque was dishonoured. Hence, statutory notice was given to the accused and thereafter the complaint was filed. To prove the aforesaid case, the complainant examined four witnesses. P.W.1 is the complainant himself; P.W.2 is an employee of PNB, P.W.3 is the Branch Manager of Vijaya Bank, Golaghat Brnach and P.W.4 is the Assistant Post Master to prove the fact of delivery of registered letter to the accused. The accused did not examine any witness.4. The trial court framed the following points for determination :”1. Whether the cheque in question was issued by the accd?2. Whether the accd received Rs.1,00,000/- from the complainant ?3. Whether there is any cause of action for the complainant?4. Whether the complaint petition is maintainable.”5. While delivering the judgment the learned trial Magistrate held that the cheque in question was issued by the accused and the complainant did not receive the money. In other words, issues No. 1 and 2 were answered in favour of the complainant. However, issues No.3 and 4 were decided against the complainant holding that if the complainant had received the information of dishonour of the cheque on 22.7.2002, he could not have issued statutory notice under Section 138 of the N.I.Act on 3.5.2002. In other words, issues No. 1 and 2 were answered in favour of the complainant. However, issues No.3 and 4 were decided against the complainant holding that if the complainant had received the information of dishonour of the cheque on 22.7.2002, he could not have issued statutory notice under Section 138 of the N.I.Act on 3.5.2002. The Magistrate has further held that the complainant did not give the exact date on which he received the intimation from the bank about the dishonour of the cheque.6. Shri Rahman, learned counsel for the respondent has referred to clause(b) of Section 138 of the N.I.Act and submitted that it is necessary for a complainant to prove the date of receipt of the information from the bank regarding dishonour of the submissions of the learned counsel for the respondent.7. I agree with the submissions of the learned counsel for the respondent. However, in the case before me, the complainant had received the information about the dishonour of the cheque on two different dates and from two different sources. The first information was received from his own bank i.e. Vijoya Bank, Golaghat Branch on 24.3.2002 (Ext.2) and the 2nd information was received through memo dated 22.7.2002 issued from PN Bank (Ext.3). It is necessary to make it clear that the complainant’s account was in Bijoya Bank and the cheque was drawn at PNB. Besides this, Ext.2 was directly addressed by Vijoya Bank to the complainant Sri Prabin Deka, whereas Ext.3 was an internal correspondence between the PNB and Vijaya Bank. In other words, Ext.3 was addressed to the Vijaya Bank and not to the complainant. In this way Ext.3 was an additional information to the drawee of the cheque.8. Under clause-(b) to Section 138 of the N.I.Act, the payee is required to make a demand for the payment of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information (emphasis supplied) from the bank about dishonour of the cheque. In my considered view if a drawee of cheque receives two information, he has to act upon the first information and need not and cannot wait for subsequent information.9. In the case before me the cheque was produced and marked as Ext.1; Vijaya Bank intimation as Ext.2 and PNB Memo as Ext.3. In my considered view if a drawee of cheque receives two information, he has to act upon the first information and need not and cannot wait for subsequent information.9. In the case before me the cheque was produced and marked as Ext.1; Vijaya Bank intimation as Ext.2 and PNB Memo as Ext.3. Under Ext.2 the Vijaya Bank informed the complainant in unambiguous term that his cheque was returned uncleared from PNB and the cheque was also returned to the complainant. I have also noted earlier that in view of Ext.2 the subsequent internal information from PNB to Vijaya Bank under Ext.3 became redundant. However, the learned Magistrate has totally overlooked Ext.2 and the complaint has been dismissed solely on the basis of Ext.3. Hence, I find no difficulty to hold that the opinion and finding of the learned Magistrate on issues No. 3 and 4 are perverse and, thus, are hereby set aside.10. In the result, the impugned judgment is hereby set aside. The learned Judicial Magistrate, Golaghat is directed to re-hear the argument of the parties and pass a fresh judgment.11. Both the parties are directed to appear in the trial court on 27.9.2010 and receive further directions.12. The Registry is directed to return the LCR with a copy of this judgment to the court below forthwith._____________