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2012 DIGILAW 341 (ORI)

Govinda Charan Barik v. Suryakanta Barik

2012-08-08

S.PANDA

body2012
JUDGMENT S. PANDA, J. In this criminal revision, the petitioner has challenged the judgment dated 16.11.2010 passed by the learned Addl. Sessions Judge, Rourkela in Criminal Appeal No. 54 of 2009 confirming the order dated 22.6.2009 passed by the learned Judicial Magistrate First Class, Rourkela in ICC No. 139 of 2008/Trial No. 741 of 2008. 2. Opposite party as complainant filed ICC No. 139 of 2008 as the cheque issued by the petitioner in his favour was dishonoured by the Bank. After obtaining the said intimation from the Bank, opposite party issued statutory notice to the petitioner but the petitioner did not respond to the said notice for which the complaint case was filed. The Court below took cognizance of the offence under Section 138 of the N.I. Act. After receiving notice, the present petitioner appeared before the Court below and took a plea that he had never taken any loan from the opposite party. However, he admitted that he had issued the cheque for the purpose of security for a sum of Rs. 10,000/- which he had taken from the opposite party and requested him to return the cheque after the payment of the said amount. However, opposite party did not return the cheque on receiving the amount and filed a false case. In support of their respective pleas, the complainant and the petitioner adduced evidence. On analyzing the evidence, the Trial Court came to a finding that the complainant has proved that the accused had issued the cheque for payment of a debt. The cheque was dishonoured and the accused did not pay the amount to the complainant after receiving the statutory notice either during the stipulated period or subsequent thereto. Therefore, the complainant has proved the case beyond reasonable doubt and the accused is liable under Section 138 of the N.I. Act. On such finding, the Trial Court imposed the sentence on the accused to undergo simple imprisonment for a period of one year and to pay compensation of Rs. 2,00,000/- to the complainant and in default of payment of compensation, the accused shall undergo simple imprisonment for a further period of three months. Being aggrieved by the said judgment and sentence, the petitioner filed the Criminal Appeal No. 54 of 2009 before the learned Addl. Sessions Judge, Rourkela. 2,00,000/- to the complainant and in default of payment of compensation, the accused shall undergo simple imprisonment for a further period of three months. Being aggrieved by the said judgment and sentence, the petitioner filed the Criminal Appeal No. 54 of 2009 before the learned Addl. Sessions Judge, Rourkela. The appellate Court taking into consideration the plea raised by the present petitioner and after going through the materials available on record confirmed the finding of the Trial Court regarding issuance of cheque and non-payment of demanded amount as per the notice and held that the rebuttal evidence adduced from the side of the accused is not upto the mark and there is nothing substantial from the side of the accused to differ with the opinion of the Trial Court. 3. Learned counsel appearing for the petitioner submitted that there is no materials available on record that the complainant was an income tax assessee or he had sufficient money with him at the relevant time to hand over such huge amount to the petitioner. Since it is improbable on the part of the complainant to give such a huge amount, the Courts below should have dismissed the complaint petition instead of convicting the petitioner. He further submitted that since the cheques are being misutilised and the persons are being harassed in order to wrecking vengeance now-a-days and the complainant filed a frivolous case as it would reveal from a bare reading of the complaint petition, the Court below should not have convicted the petitioner. Accordingly, the same is liable to be interfered with. 4. Learned counsel for the opposite party submitted that since this being the concurrent finding of facts arrived at by the Courts below convicting the accused and imposing compensation in the absence of any question of law, the interference of the impugned orders are not warranted. 5. From the rival submissions of the parties and after perusing the LCR, it appears that the petitioner has admitted regarding issuance of cheque. He has also received the notice issued by the opposite party and within the statutory period, the petitioner did not pay the amount and had not taken any step to pay the payment during trial also. The petitioner was also not able to substantiate his stand regarding payment of Rs. He has also received the notice issued by the opposite party and within the statutory period, the petitioner did not pay the amount and had not taken any step to pay the payment during trial also. The petitioner was also not able to substantiate his stand regarding payment of Rs. 10,000/- by the complainant and the cheque was issued for the security of the said amount which was mis-utilised by the opposite party. Therefore, both the Courts below rightly came to a conclusion that the petitioner was guilty of committing an offence under Section 138 of the N.I. Act. Since that is the concurrent finding of facts and this being a revisional Court, this Court is not inclined to interfere with the impugned orders. 6. It appears from the order sheet of the revision that this Court on 3.2.2011 directed the petitioner to deposit a sum of Rs 1 lakhs before the Registrar (Judicial) of this Court in three installments. The 1st and 2nd installments of Rs. 35,000/- each shall be deposited by 28th February, 2011and 31st March, 2011 and 3rd installment of Rs. 30,000/- by 30th April, 2011 and in such event realization of the compensation amount shall remain stayed. However, the petitioner has not complied with the said direction of this Court till the date of hearing of the criminal revision. 7. Taking into consideration the fact that the opposite party had given Rs. 1 lakh for which the cheque was issued to pay the debt, this Court modifies the sentence of one year simple imprisonment to six months simple imprisonment. So far as imposition of compensation of Rs. 2 lakhs is concerned, this Court is of the view that the same is at a higher side and therefore, this Court reduces the said compensation from Rs. 2,00,000/- to Rs. 1.25,000 (Rupees one lakh twenty-five thousand) and in default of payment of the said compensation, the petitioner shall undergo simple imprisonment for a further period of three months. Accordingly, the criminal revision is allowed in part. Revision allowed in part.