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2011 DIGILAW 568 (BOM)

Mallesh Chandraia Yengulwar v. B. N. Chide

2011-05-05

A.P.BHANGALE

body2011
JUDGMENT :- By this appeal, the appellant (original camplainant) challenged order in Camplaint Case No. SCC 4002/2005, which was decided by learned JMFC, Rajura, acquitting the accused Bhauraa Nanaji Chide of offence punishable under Section 138 of Negatiable Instruments Act. The appellant have challenged validity and legality of the impugned judgment and order an the ground that, the findings recorded by learned JMFC were contrary to the evidence an record. The learned JMFC failed to, notice that, the fact regarding knowledge of the complainant regarding dishonour of the cheque in question was specifically mentioned in the demand notice and the same was never disputed by the accused. It is contended that, the complainant had duly proved legally enforceable liability. According to the complainant, the cheque bearing No. 0086015, dated 26/11/2004, in the sum of Rs. 34,000/- drawn upon the Bank of India, Rajura, was presented to USO Bank, Ballarpur an 19/ 04/2005. The Bank by intimatian memo dated 18/05/2005 infarmed the fact of dishonour of cheque an account of insufficient funds in the account of accused. Thus, the cheque in question was returned to the complainant along with intimation of dishonour an 23/05/2005.Since the cheque was returned due to. dishonour thereof, the complainant issued notice of demand dated 2l/06/2005 to the accused demanding payment of the amount of cheque within 15 days. The notice was received by the accused on 22/06/2005, but despite sufficient time granted for the accused to make payment, the accused failed to pay, and therefore, the complainant had no other option but to lodge complaint under Section 138 of the Negotiable Instruments Act. 2. At trial, the learned Trial Magistrate, Rajura, had accepted evidence of the complainant on affidavit dated 28/07/2006, on the basis of which and after further examination-in-chief on 25/08/2006, the accused was required to cross-examine the complainant on 07/12/2007. The accused had also entered in the witness box in support of his defence and was cross-examined. Thus, after the evidence was recorded, learned Trial Magistrate by the impugned judgment and order dated 08/04/2008, acquitted the accused of the offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned advocate for the complainant submitted that the complainant had succeeded to establish the fact, that accused had issued a cheque bearing no. 0086015, dated 26/11/2004, in the sum of Rs. 3. The learned advocate for the complainant submitted that the complainant had succeeded to establish the fact, that accused had issued a cheque bearing no. 0086015, dated 26/11/2004, in the sum of Rs. 34,000/- which was drawn from the Bank of India, Rajura Branch in favour of the complainant towards discharge of Legally enforceable debt of liability. It is submitted that, the complainant also established the fact that, a cheque was presented to his banker i.e. UCO Bank, Ballarpur, for encashment within prescribed validity period and the fact that cheque was returned dishonoured for reason “funds insufficient” in the account of accused. However, learned Trial Magistrate held that, the complainant did not prove the fact that. complainant had issued a notice to the accused demanding the cheque amount within prescribed period from the date of receipt of the intimation memo regarding dishonour of cheque and thereby held that offence punishable under Section 138 of the Negotiable Instruments Act was not made out against the respondent-accused. 4. It is grievance of the appellant (complainant) that, in the evidence before the Court the complainant had specifically stated in his affidavit that the dishonoured cheque was returned to the complainant on 23/05/2005 with remark" insufficient funds" in the account of accused and UCO Bank, Ballarpur, had returned the intimation memo from the Bank of India along with dishonoured cheque, and this specific evidence in the affidavit of the complainant was not challenged by the accused despite the fact that the cheque (Exh.24), cheque return memo of UCO Bank (Exh.25), return memo of Bank of India (Exh. 26) were produced before the learned Trial Magistrate along with copy of notice (Exh. 27), postal receipt (Exh. 28) and postal acknowledgment (Exh.29) bearing signature of the accused. It is submitted that in the cross-examination on behalf of the accused, there was no challenge to the evidence of the complainant that he had received the intimation memo in respect of the dishonour of the cheque on 23/05/2005 as stated in the affidavit. The accused had also entered in the witness box to depose in the case but did not challenge the specific statement made in the evidence of the complainant that he had received intimation memo regarding dishonour of the cheque on 23/05/2005. 5. According to the learned advocate for the respondentaccused is Supporting the impugned judgment and order. The accused had also entered in the witness box to depose in the case but did not challenge the specific statement made in the evidence of the complainant that he had received intimation memo regarding dishonour of the cheque on 23/05/2005. 5. According to the learned advocate for the respondentaccused is Supporting the impugned judgment and order. It is argued that the defence of the accused was of total denial, and therefore, the complainant ought to have established the fact of dishonour as also receiving the intimation memo in respect of the dishonour of the cheque on 23/05/005 as stated by the complainant by independent evidence of the banker. It is therefore submitted that, the learned Trial Magistrate was right to record an order of acquittal because of non production of the evidence of the banker or documentary evidence to indicate that the complainant had received the intimation as to why cheque was dishonoured on 23/05/2005 as stated and the learned Trial Magistrate held that there was no explanation from the complainant as to why bank will keep letter dated 18/05/2005 (Exh. 25) with the bank itself for a period of 5 days and as to why the complainant did not adduce evidence of bank officials from the UCO Bank to the effect that cheque along with intimation memo was returned to the complainant on 23/05/2005. Hence it is submitted that, the conclusion recorded by the learned Trial Magistrate is correct. The learned advocate for the respondent-accused relied on the judgment reported in 2009(4) Civil LJ 1 : [2009 ALLMR(Cri) 2165 (S.C.)] Sivakumar Vs. Natarajan in Cr. Appeal No. 1077 of 2009, decided on 15th May, 2009 . It is submitted that, clause (b) of the Proviso to Section 138 of the Negotiable Instruments Act requires issuance of notice within thirty days of receipt of infOlmatiol1 of return of unpaid cheque by the Bank. In that case notice was issued on 31st day and not within 30 days. It was held that, conviction of the accused was not sustainable for offence punishable under Section 138 of the Negotiable Instruments Act. It appears in that case, the UCO Bank, Branch Trichi, had given intimation dated 27/11/2003 which was received by the complainant on 03/12/2003 in respect of which notice was issued for demanding the amount of Rs.l.00,000/-. It was held that, conviction of the accused was not sustainable for offence punishable under Section 138 of the Negotiable Instruments Act. It appears in that case, the UCO Bank, Branch Trichi, had given intimation dated 27/11/2003 which was received by the complainant on 03/12/2003 in respect of which notice was issued for demanding the amount of Rs.l.00,000/-. It was held that, Section 138 of the Negotiable Instruments Act warrants a strict construction. Undisputedly, in that case the notice was issued on the 31st day from the date of receipt of intimation from the bank hence the Apex Court had set aside the judgment in exercise of jurisdiction under Article 142 of the Constitution of India directing that since the civil liability of the appellant in that case stood-admitted the sum received by the respondent need not be refunded. 6. Learned counsel for the appellant relied on the judgment reported in Ajay Gupta Vs. State of Maharashtra and another 2004(2) Dishonour of Cheque Reporter Page 492 : [2004 ALLMR(Cri) 3214] (Criminal W.P. No. 384/2004) decided by Bombay High Court on 10106/2004. In this ruling, this Court had pointed out that the limitation of the 30 days would start from the date when the complainant is given intimation by his bank and not from the date on cheque return memo. Thus, according to the learned advocate for the complainant, although the return memo was dated 18/05/2005; it was received b' the complainant on 23/05/2005. It is specifically stated in evidence by way of affidavit by the complainant which remained unchallenged by the accused. That being so, the learned trial Magistrate ought to have held the point no. 4 for determination is proved in this case. After hearing the submission as also after perusal of the record and proceedings of the case and the rulings cited, it docs appear from the evidence on affidavit by the complainant Mallesh Chandraia Yengulwar that he had specifically stated to the effect that, the cheque in question was presented to the UCO Bank on 19/04/2005, which was returned to the complainant with intimation memo dated 18/05/2005; on 23/0512005. The complainant was cross-examined on behalf of the accused after production of documents and further in the examination-in-chief dated 28/06/2006. It appears that the case was adjourned for cross-examination from 12/07/2007. The complainant was cross-examined on behalf of the accused after production of documents and further in the examination-in-chief dated 28/06/2006. It appears that the case was adjourned for cross-examination from 12/07/2007. There was no specific challenge from the defence regarding the specific evidence of the complainant that he had received the intimation memo regarding dishonour of cheque on 23/05/2005. The accused had also entered into defence evidence by examining himself but he did not challenge this fact stated in the evidence of the complaint. 7. According to the learned advocate for the complainant, even assuming that the cheque intimation memo was received by the complainant on 23/05/2005, it was "Buddha Pournima Day", therefore, it was impossible for the complainant to receive intimation memo on 23/05/2005. This submission at this time of argument in this Court need to be considered. Therefore, in my opinion parties must be relegated to the Trial Court in order to give them opportunity to lead further evidence if any so as to bring documentary evidence on record in support of their contentions because complainant had stated that he had received intimation on 23/05/2005 by means of documentary evidence while the defence has to prove that on 23/05/2005 being Bouddha Pournima, bank had a holiday and that receipt of intimation was not possible on that day. In view of the submissions made in the interest of justice, the matter ought to be remanded back to the learned Judicial Magistrate, First Class, Rajura, with direction that, the parties be given opportunity to lead further evidence regarding the exact date of receipt of the intimation memo and dishonoured cheque in question so as to decide whether the complainant had in fact issued notice to the accused demanding the cheque amount within a period of 30 days from the date of receipt of intimation in respect of dishonoured cheque. Therefore, the appeal is partly allowed. The matter is remanded back to the learned Trial Magistrate with direction to give opportunity to the parties to lead further evidence if any, adduced by them in respect of point for determination no. 4 "is it proved by complainant that he issued notice to the accused making demand of cheque amount within prescribed period from the date of receipt of intimation of dishonour of cheque? 4 "is it proved by complainant that he issued notice to the accused making demand of cheque amount within prescribed period from the date of receipt of intimation of dishonour of cheque? " For reasons stated; the impugned judgment and order is set aside to the extent as indicated above with direction to learned trial Magistrate, First Class, Rajura to record further evidence of the parties on the point no. 4 and then to proceed further to decide the case in accordance with law. The impugned order of acquittal is set aside. The parties shall appear before the learned Judicial Magistrate, First Class, Rajura on 13/06/2011. Appeal is disposed of accordingly. Appeal partly allowed.