Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 73 (JHR)

Gauranga Dutta v. State of Jharkhand

2012-01-12

H.C.MISHRA

body2012
Judgment H.C. Mishra, J:-Heard learned counsels for both the sides and perused the record. 2. This appeal is directed against the Judgment of acquittal dated 24.4.2009 passed by Shri Kumar Kamal, learned Additional Sessions Judge, Fast Track Court-III, Dhanbad in Criminal Appeal No. 288 of 2008, whereby the learned Appellate Court below has set aside the Judgment of conviction and Order of sentence dated 1.9.2008 passed by the learned Trial Court in C.P. Case no. 414 of 2006/Trial No. 471 of 2008, convicting the respondent No. 2 accused for the offence under Section 138 of the Negotiable Instruments Act (herein after referred to as the ‘N.I. Act’). It was held by the learned Appellate Court below that the accused had succeeded in raising probable defence and the presumption under the N.I. Act was rebutted by the accused. Accordingly, the respondent accused was acquitted of the accusation by the learned Appellate Court below. 3. The complainant Gauranga Dutta had filed the complaint petition in the Court below against the accused Md. Kalam Azad stating that the complainant is the proprietor of shop no. 8, situated at Dutta Mansion, Hirapur, Dhanbad and the accused was inducted as a tenant at the monthly rental of Rs. 625/-per month, which was subsequently enhanced up to Rs. 781/-per month and it was agreed between the complainant and the accused that apart from the said rent, the accused shall pay for consumption of the electricity charges separately each month to the J.S.E.B. as per the bill raised. It is alleged by the complainant that during October 2004 and October 2005, the accused consumed 578 units of energy amounting to Rs. 10,729/-and when the complainant learnt that the accused had not bothered to deposit the amount, he requested the accused to clear the bills of the J.S.E.B. The accused induced the complainant dishonestly and fraudulently and took a sum of Rs. 10,000/-from the complainant and issued a post dated cheque for Rs. 10,000/-dated 31.12.2005 drawn upon the Bank of India, Hirapur S.S.I. Branch in favour of the complainant. The said cheque was depositted in the Bank, but was returned unpaid with an endorsement “Insufficient amount” vide return memo issued by the Bank on 6.1.2006. 10,000/-from the complainant and issued a post dated cheque for Rs. 10,000/-dated 31.12.2005 drawn upon the Bank of India, Hirapur S.S.I. Branch in favour of the complainant. The said cheque was depositted in the Bank, but was returned unpaid with an endorsement “Insufficient amount” vide return memo issued by the Bank on 6.1.2006. A legal notice of demand was sent to the accused on 31.1.2006 for making payment of the amount within fifteen days, but when the said notice was returned unserved, the complaint case was filed. It is alleged in the complaint petition that returning of the notice was managed by the accused himself through the postal peon, though the accused was having a large number of family members residing there at the same address, which the complainant undertook to prove during the trial. 4. From perusal of the record, it appears that the complainant has examined three witnesses in this case. C.W.1 Arbind Kumar Singh, has supported the case of the complainant. However, from the evidence of this witness, it is clear that he has stated that cheque was given by the accused to the complainant on 4.11.2005 and he has admitted in his cross-examination also that the cheque was given on 4.11.2005. 5. C.W.2, Sunil Kumar Kujur, is the Manager in Allahabad Bank, who has proved pay in slip of the cheque, which was deposited by the complainant, which was marked as Ext.1. He has also proved the seal on the back of the cheque, which was marked as Ext. 2. He has proved the return memo of the cheque, which was marked as Ext. 3 and the information given to the complainant pursuant thereto, marked as Ext. 3/1. 6. C.W.3 is the complainant himself, who has supported his case and has also proved the cheque, which was marked as Ext.4. The legal notice was marked as Ext.5, the envelop was marked as Ext. 5/1 and the acknowledgment due was marked as Ext. 5/2. From the cross-examination of the complainant on behalf of the defence, it is apparent that he has admitted that cheque was given to the complainant on 4.11.2005 at about 10.00 to 11.00 am. He has also admitted that the complainant accused had filed a case against him being C.P. Case no. 494 of 2006 which is a false case relating to pagri amount. 7. He has also admitted that the complainant accused had filed a case against him being C.P. Case no. 494 of 2006 which is a false case relating to pagri amount. 7. The defence of the accused is that there was no electricity due, rather, the cheque was given by the accused to the complainant for maintenance, but the complainant had also not returned back the amount of Rs. 1,20,000/-which was given by the accused to the complainant as pagri, while taking the complainant’s shop on rent, for which another case is also pending. The accused had examined himself as D.W.1 and has supported his case in his evidence. The accused has proved the passbook of his account as Ext. A, which shows that the account itself was opened on 8.11.2005. The cheque book has been proved as Ext. B, which shows that the cheque book was issued to the accused on 10.11.2005. It appears that cheque no. 0104431, which is the subject matter of this case, belonged to the said cheque book itself. 8. Learned counsel for the complainant appellant has submitted that the complainant had been able to prove the case in the Court below by producing the cheque and proving the fact that the same was deposited in the Bank by him well within time and when the cheque was dishonored, a legal notice of demand was sent to the accused and subsequently, when the money was not returned back, the complaint petition was filed. Learned counsel has accordingly, submitted that there is a presumption against the accused under Sections 118 and 139 of the N.I. Act, which the accused has not been able to rebut and accordingly, the learned Trail Court below rightly convicted and sentenced the accused. It has also been submitted that the Judgment passed by the learned Appellate Court below is absolutely illegal, inasmuch as, the only ground on which the accused has been acquitted, is that on the date of hading over the cheque i.e. 4.11.2005, even the account was not opened by the accused and on the said ground only, the learned Appellate Court below has held that there is a great probability of non-existence of the consideration and has set aside the Judgment passed by the learned trial Court. Learned counsel has accordingly, submitted that it is a fit case in which the Judgment of learned Appellate Court below be set aside and the Judgment of conviction and Order of sentence passed by the learned Trial Court be upheld. 9. Learned counsel for the respondent accused, on the other hand, has submitted that there is no illegality in the impugned Judgment passed by the learned Appellate Court below, inasmuch as, the accused has been able to prove that the account itself was opened by him on 8.11.2005 and the cheque book was issued to him on 10.11.2005. Learned counsel has further submitted that C.W.1 has stated in his evidence that cheque was handed over on 4.11.2005 and even the complainant, who has examined as C.W.3 has admitted in his cross-examination that cheque was handed over to him on 4.11.2005. In this view of the matter, on the date on which the cheque was allegedly said to be handed over by the accused to the complainant, the cheque was not even available with the accused and there was no question of handing over the cheque to the complainant on the said date. This makes the case of the accused true that there was a dispute for returning of pagri amount between the parties and the said cheque was not given to the complainant for clearance of any electricity dues. Learned counsel has accordingly, submitted that there is no illegality in the impugned Judgment and the same cannot be interfered with. 10. Having heard learned counsels for both parties and upon going through the record, I find that though the complainant has stated in his complaint petition that a post dated cheque bearing date 31.12.2005 was given to him by the accused, but in the entire complaint petition, the date of giving cheque is not stated. Even in the examination-in-chief of the complainant, who has been examined as C.W.1, the date of giving the cheque is not stated by him. However, C.W.1 Arbind Kumar Singh has stated that the cheque was given to the complainant by the accused on 4.11.2005 and he has reiterated this fact in his cross-examination. Again the complainant as C.W.3 has also admitted in his cross-examination that the said cheque was given to him on 4.11.2005. The defence has brought on record Ext. However, C.W.1 Arbind Kumar Singh has stated that the cheque was given to the complainant by the accused on 4.11.2005 and he has reiterated this fact in his cross-examination. Again the complainant as C.W.3 has also admitted in his cross-examination that the said cheque was given to him on 4.11.2005. The defence has brought on record Ext. A, i.e., the Passbook, which shows that the account itself was opened on 8.11.2005 and the cheque book, Ext. B, shows that it was issued to him on 10.11.2005 and the cheque which is the subject matter of this case, belonged to the said cheque book itself . Thus, the accused has been able to prove that the cheque in question could not have been handed over to the complainant on 4.11.2005, the date on which, the complainant claims to have received the cheque. This date of handing over the cheque cannot be said to be only a mistake, as the same date has been given by C.W.1 Arbind Kumar Singh as also admitted by C.W.3, who is the complainant himself. This apart, though the complainant has stated in his complaint petition that legal notice was returned back unserved in connivance with the postal peon and he has undertaken in the complaint petition to prove this fact in course of trial, but it appears from the evidence on record that no evidence has been adduced by the complainant to show that there was any connivance between the postal peon and the accused, due to which the said notice was returned with endorsement ‘always absent’. The complainant has not produced any independent witness in this regard, though he has only stated in his evidence that notice was sent on the address where the family of the accused used to reside. No evidence has been adduced by the complainant to show that the said notice was returned in connivance with the accused. This clearly indicates that the statutory requirement of service of notice of demand upon the accused, as required under section 138 Proviso (b) of the N.I. Act was not fulfilled. 11. In this view of the matter, I am of the considered view that the accused has been able to rebut the presumption against him and the very existence of the consideration has been made very doubtful. 11. In this view of the matter, I am of the considered view that the accused has been able to rebut the presumption against him and the very existence of the consideration has been made very doubtful. In that view of the matter it was for the complainant to prove its case beyond all doubt, but the complainant has failed to do so. In this connection, the law is well settled by the Hon'ble Supreme Court of India in the case of Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Pyarelal, reported in (1993) 3 SCC 35, (para 12) wherein, it has been held as follows:- “ Upon consideration of various Judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The Court may not insist upon the defendant to disapprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. The Court may not insist upon the defendant to disapprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist”. (Emphasis supplied) The aforementioned decision has been approvingly cited by the Hon'ble Supreme Court of India in Rangappa Vrs. Sri Mohan, reported in 2010 (3) JCR 16 (SC). The law laid down as above, is fully applicable to the facts of this case. 12. In view of the aforementioned settled principles of law, I am of the considered view that in view of the fact that the accused discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful, the appellant complainant had failed to prove its case in the Court below beyond all reasonable doubts. This apart, as discussed above, even the statutory requirement of service of notice of demand upon the accused, as required under section 138 Proviso (b) of the N.I. Act was not fulfilled. 13. For the foregoing reasons, I find that the learned Appellate Court below has rightly come to the conclusion that there is a great probability of non-existence of the consideration in the present case and the accused had succeeded in raising probable defence and the presumption has been rebutted by the accused and has accordingly, set aside the Judgment of conviction and Order of sentence passed by the trial Court. I do not find any illegality in the impugned Judgment passed by the learned Appellate Court below and the same cannot be interfered with. 14. Consequently, I do not find any merit in this appeal, which is, accordingly, dismissed.