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2010 DIGILAW 67 (ORI)

MADAN MOHAN SAHU v. CENTRAL AGENCIES

2010-02-02

S.K.MISHRA

body2010
ORDER Petitioner assails the confirming judgment passed by the learned Addl. Sessions Judge, Panposh in Criminal Appeal No. 43 of 2005, wherein she confirmed the order of conviction and sentence passed by learned Sub-Divisional Judicial Magistrate, Panposh in 1 C.C. Case No. 16 of 2000 for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "Act" for brevity). Briefly stated, the facts of the case are as follows : The complainant M/s. Central Agencies is a firm engaged in execution of different contracts. It owns a JCB Machine bearing Regn. No. OR-14-A 9433. The petitioner entered into an agreement with the complainant to take the JCB Machine on hire for utilization of the same for execution of a contract work. For such hire, the Company was to pay a sum of Rs. 3,50,000/- to the complainant and for payment of the same, issued post dated cheques bearing No. 920456 dated 7-8-1999 for Rs. 1,80,000/- and second one bearing No. 921837 dated 18-10-1999 of Rs. 1,70,000/- in favour of the complainant firm drawn on the State Bank of India, Kalinga Nagar Branch, Jaipur. Accordingly, the complainant presented both the cheques in the Bank, which were dishonoured for the reason "insufficient funds". Then the complainant issued a notice to the accused demanding payment of the cheque amount. Although, the notice was received, the accused did not respond to the same and did not comply the demand to repay the amount due. Thereafter, the complainant preferred the complaint petition against the present petitioner in the Court of learned S.D.J.M., Panposh, who after due trial convicted the petitioner under Section 138 of the Act and sentenced him to undergo simple imprisonment for a period of one year and to pay a compensation of Rs. 3,50,000/-. The learned Magistrate also ordered that the said amount should be deposited by the accused forthwith, failing which the Court will resort to recover the same as fine as provided under Section 431 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code" for brevity). For default of payment of the compensation amount, the accused - appellant was sentenced to undergo simple imprisonment for a period of three months. The present petitioner challenged the conviction and sentence passed by the learned S.D.J.M. before the learned Addl. Sessions Judge, Rourkela and as per judgment dated 17-7-2007, the learned Addl. For default of payment of the compensation amount, the accused - appellant was sentenced to undergo simple imprisonment for a period of three months. The present petitioner challenged the conviction and sentence passed by the learned S.D.J.M. before the learned Addl. Sessions Judge, Rourkela and as per judgment dated 17-7-2007, the learned Addl. Sessions Judge dismissed the appeal holding that there is no infirmity or error in respect of the findings of the learned Court below. In course of hearing of the revision application, learned counsel for the petitioner submitted that since M/s. Anjay Construction is owned by one Renubala Sahoo, who is the sole Proprietor of the said firm, the Courts below without application of mind held the petitioner liable for dishonour of the cheques. The learned counsel also raised the points that for two cheques, one complaint case has been initiated and for that reason conviction should be set aside. Learned counsel for the opposite party, on the other hand, supported the findings recorded by the learned trial Court and the learned lower appellate Court. The scope in a revision against such confirming judgment is very limited. If the revisional Court does not find any perversity in the findings recorded by the learned trial Court as well as the learned appellate Court, it would stay its hand from interfering with the findings recorded. Having gone through the lower Court records, this Court comes to the conclusion that Mahendra Kumar Talwar, one of the partners of M/s. Central Agencies has been examined as P.W. 1 and the complainant has relied on Ext. 1, the original agreement executed between the complainant and the accused for contract work of M/s. Mukund Engineering Ltd., Angul. Exts. 2 and 3 are the dishonoured cheques, Ext. 4 is the intimation of the Bank, Ext. 5 is the copy of the Pleader's Notice, Ext. 6 is the A.D. card. Ext. 7 is the Deed of Partnership and Ext. 8 is an affidavit sworn to by the present petitioner. One Ajaya Kumar Talwar has also been examined as P.W. 2 from these evidence on record the learned trial Court and the learned appellate Court have come to the findings that the accused - appellant utilized the JCB Machine as per agreement and assured to pay an outstanding dues amounting to Rs. 3,50,000/- against him. One Ajaya Kumar Talwar has also been examined as P.W. 2 from these evidence on record the learned trial Court and the learned appellate Court have come to the findings that the accused - appellant utilized the JCB Machine as per agreement and assured to pay an outstanding dues amounting to Rs. 3,50,000/- against him. Further, the accused had issued two cheques drawn on the State Bank of India, Kalinga Nagar Branch, Jaipur proved as Exts. 2 and 3, towards repayment of the dues outstanding against him. The accused took the plea that he had not issued the cheques in favour of the complainant, much less in discharge of the liability. Further, the plea of the accused - appellant is that the accused No. 1, M/s. Anjay Construction and its proprietor transacted with the other firms and he had no nexus with that firm. However, learned Courts below relying on Ext. 1 the agreement, held that the accused on 14-8-1998 entered into an agreement that the Central Agencies have hired the JCB Machine for execution of the work at Angul. The learned appellate Court also relied upon an affidavit sworn to by the present petitioner - Madan Mohan Sahoo, Ext. 8, wherein he admitted his liability of Rs. 3,50,000/- payable to the complainant. In that affidavit, he has admitted for issuance of two cheques and approached for compromise. These documents have been accepted as evidence and have been relied upon by the learned appellate Court as well as learned trial Court. The documentary evidence supports the testimony of P.Ws. 1 and 2. Thus, it is proved beyond all reasonable doubt that the accused issued the two cheques in question in favour of the complainant. Moreover, under Section 139 of the Act, a presumption arises in favour of the drawee on the holder of the cheque that he received the cheques for discharge of, in whole or in part, any debt or other liability. This presumption is a rebuttable presumption but a heavy burden lies on the accused to prove to the contrary. In this case, there is no evidence worth the name to rebut the presumption arising in favour of the complainant, who is the holder of the cheques. This presumption is a rebuttable presumption but a heavy burden lies on the accused to prove to the contrary. In this case, there is no evidence worth the name to rebut the presumption arising in favour of the complainant, who is the holder of the cheques. Though the accused No. 1 in the complaint case is a firm, learned appellate Court resorting to Section 141 of the Act held that the petitioner, who was in charge of and was responsible for the firm for conduct of the business of the Company as well as the Company shall be deemed guilty of the offence and shall also be liable to be proceeded against. Finding no cogent reasons for disturbing the concurrent findings of fact, this Court is of the opinion that the finding of fact relating to the liability of the petitioner cannot be disturbed. Hence, the first contention raised by the learned counsel for the petitioner is unacceptable. Coming to the second contention raised by the learned counsel for the petitioner, this Court takes note of the provision of sub-Section (1) of Section 219 of the Code, which provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offence, whether in respect of the same person or not, he may be charged with and tried at one trial, for any number of them not exceeding three. In this case, the cheques were issued on 7-8-1999 and 18-10-1999, therefore, both the offences can be tried in a single trial. It is not necessary to start two separate complaints for the two cases of dishonour of the cheques. The petitioner has been sentenced to undergo simple imprisonment for one year and to pay a compensation for Rs. 3,50,000/-. The maximum punishment prescribed under Section 138 of the Act is for a term, which may be extended to two years or with fine, which may extend to twice the amount of the cheques or with both. So keeping in view the peculiar circumstances of the case, this Court is of the opinion that a substantive sentence of three months simple imprisonment for the offence under section 138 of the Act and compensation of Rs. 3,50,000/- (Rupees three lakhs fifty thousand) shall be sufficient to meet the ends of justice. So keeping in view the peculiar circumstances of the case, this Court is of the opinion that a substantive sentence of three months simple imprisonment for the offence under section 138 of the Act and compensation of Rs. 3,50,000/- (Rupees three lakhs fifty thousand) shall be sufficient to meet the ends of justice. Accordingly, the revision is dismissed with modification of sentence as aforestated. Petition dismissed.