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2015 DIGILAW 650 (ORI)

Suman Chatterjee v. Lina Roy Tappadar

2015-11-23

S.PUJAHARI

body2015
ORDER : S. Pujahari, J. 1. This criminal revision is directed against the judgment of conviction and order of sentence dated 20.7.2011 passed by the learned J.M.F.C., Rourkela in I.C.C. Case No. 247 of 2009 convicting the present petitioner for commission of offence under Section 138 of Negotiable Instrument Act (for short hereinafter referred to as "the N.I. Act") which has been upheld by the appellate court with the modification in sentence vide judgment dated 2.5.2012 passed by the learned Additional Sessions Judge, Rourkela in Criminal Appeal No. 26 of 2011. 2. It appears that in this revision the earlier counsel appearing on behalf of the petitioner took repeated adjournments for hearing of the revision which has since been admitted. But subsequently, Mr. P.K. Mishra, learned counsel and associates entered appearance for the petitioner and filed Vakalatnama with the consent of the previous counsel appearing for the petitioner, made the submission to take the matter to any other date as he was appearing recently. Considering their submission, the case was adjourned to 28.7.2015. Thereafter, though the case was take up on 31.07.2015, but none appeared for the petitioner on that day. The learned counsel for the opposite party was present. Considering the fact that this is a revision against the conviction and the revision has already been admitted and as such it cannot be dismissed for non prosecution and the counsel for the petitioner who has recently made appearance also not kept the commitment given in this case. I have perused the record and heard the counsel for the opposite party for disposal of this revision and disposed of the revision on merit vide the order passed as follows: 3. The prosecution case, in short, is that the opposite party-complainant and the petitioner had acquaintances with each other. The petitioner being an LIC and Postal agent persuaded the opposite party-complainant to invest a sum of Rs. 1,80,000/- either in LIC or Postal Schemes, Accordingly, the opposite party-complainant gave a sum of Rs. 1,80,000/- to the petitioner for investment of the same in any of the LIC schemes or in the Monthly Income Scheme (MIS) of the Postal department, but the petitioner did neither. He also did no refund the said amount despite demands. On 25.10.2008, the petitioner in order to discharge his liability issued a cheque bearing No. 436448 dated 25.10.2008 (Ext. 1,80,000/- to the petitioner for investment of the same in any of the LIC schemes or in the Monthly Income Scheme (MIS) of the Postal department, but the petitioner did neither. He also did no refund the said amount despite demands. On 25.10.2008, the petitioner in order to discharge his liability issued a cheque bearing No. 436448 dated 25.10.2008 (Ext. I) drawn on HDFC Bank, Bisra Road, Rourkela and on 4.2.2009 the opposite party-complainant deposited the said Cheque in her Bank i.e. Bank of India for encashment, but as per cheque return memo (Ext. 3), the HDFC bank informed her bankers that the account had been closed and subsequently, her banker returned the cheque to her. Thereafter, the opposite party complainant issued a notice dated 25.2.2009 (Ext. 4) to the petitioner asking him to make payment of the aforesaid amount, but in vain. Therefore, finding no other way, the complainant-opposite party filed a complaint in the court of learned S.D.J.M., Panposh at Rourkela to proceed against the petitioner under Section 138 of N.I. Act. The petitioner faced his trial and the trial court in seisin over the matter recorded the judgment and order as stated earlier. The appeal against the same also failed. Hence, this revision. 4. I have perused the judgment and order of the trial court as well as the appellate court, so also the evidence on record. It appears from the evidence on record that the drawal of the cheque was not disputed by the present petitioner. It appears that in the trial court the opposite party had adduced evidence disclosing the fact that the petitioner has drawn the aforesaid cheque in his favour for discharge of his liability i.e. money received by him to deposit in LIC and postal scheme giving impression that he is an agent in this regard, but the petitioner deposited the money in neither had being insisted the aforesaid cheque was issued to discharge the aforesaid liability by the petitioner. In the cross-examination made the aforesaid evidence has not been disturbed or demolished in any manner. The petitioner did not dispute the same during the course of hearing in the trial court. No rebuttal evidence was also adduced by him in the trial court. He only disputed that since the notice was not made sufficient on him, the prosecution was incompetent against him. The petitioner did not dispute the same during the course of hearing in the trial court. No rebuttal evidence was also adduced by him in the trial court. He only disputed that since the notice was not made sufficient on him, the prosecution was incompetent against him. The trial court, relying on such evidence on record and also the presumption available under Section 139 of N.I. Act held the cheque was issued for due discharge of debt and liability. So also replying on the presumption under Section 27 of the General Clauses Act, as the notice issued by Registered Post with A.D. in proper address of the petitioner and not returned, held the same to have been made sufficient. As the petitioner did not pay the money in spite of such notice, the trial court held him guilty and sentenced him as stated earlier. In the appellate court, the learned counsel for the petitioner contended that the petitioner had issued the cheque in question not for discharge of any debt or liability but for a loan, as a collateral security. Taking into consideration the aforesaid evidence on record and also the presumption under Section 139 of N.I. Act in favour of the holder of a cheque that he receives the cheque for the discharge of whole or any part of the debt or liability though a rebuttal one at the instance of the drawer of the cheque that the cheque was not issued for discharge of any debt or liability, as the petitioner could not rebut that presumption, it was held by the appellate court that the same was drawn for discharge of liability as aforesaid and as the same was not honoured due to closure of the account after issuance of the same an offence under Section 138 N.I. Act was made out. So also from the materials on record, it appears that in the appellate court the petitioner had also advanced a contention that non-service of notice after dishonour of the cheque, the complaint was incompetent as the same is a sine-qua-non to launch prosecution under Section 138 of N.I. Act. So also from the materials on record, it appears that in the appellate court the petitioner had also advanced a contention that non-service of notice after dishonour of the cheque, the complaint was incompetent as the same is a sine-qua-non to launch prosecution under Section 138 of N.I. Act. Considering the fact that in the address of the petitioner, statutory notice was despatched by Registered Post and the same had not returned and the mandate of Section 27 General Clauses Act, it was presumed that notice have been made sufficient and as the petitioner had not paid the amount of the cheque within the statutory period, he was liable for 138 of N.I. Act. The appellate court thus concurred the finding of conviction of the trial court with certain modification in the default sentence as the default sentence was not in accordance with law. 5. The aforesaid finding of the trial court as well as the appellate court appears to have been backed by the evidence on record as well as the law in this regard. The Supreme Court of India in the case of Rangappa v. Mohan, reported in 2010 AIR SCW 2946 has held cheque was received by holder of cheque for the discharge of in whole or in part, of any debt or liability is a matter of presumption under Section 139 of N.I. Act though rebuttable one, overruling the earlier decision reported in AIR 2008 SC 1325 in the case of Krishna Janardhan Bhat v. Dattatraya G. Hedge that complainant is duty bound to prove that he received the cheque for discharge of legally enforceable debt or liability. The complainant otherwise has also proved the same by cogent evidence. Hence, no fault can be found with the finding that the petitioner drawn the cheque in favour of the opposite party for discharge of a legally enforceable debt or liability. 6. The complainant otherwise has also proved the same by cogent evidence. Hence, no fault can be found with the finding that the petitioner drawn the cheque in favour of the opposite party for discharge of a legally enforceable debt or liability. 6. The contention with regard to complaint being bad for want of proof on the sufficiently of statutory notice, a presumption under Section 27 of General Clauses Act being available in favour of the opposite party with regard to sufficiency of the service of the notice inasmuch as it has been proved that the opposite party had sent the notice by Registered Post in the address of the petitioner and the same did not return, the same has rightly been turned down by the trial court as well as the appellate court. 7. Other contention that was raised before the appellate court was as the petitioner had closed his account and the cheque bounced for the said reason ingredients of the offence charged was not made out. In the case of Goa Plast (Pvt.) Ltd. v. Chico Ursula D'Souza, reported in (2003) 3 SCC 232 wherein the Hon'ble Apex Court have held as follows: "Chapter XVII" containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object, of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transaction. The said provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation which serves the object of the statute. A post-dated cheque will lose its credibility, and acceptability if its payment can be stopped routinely. The purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138. A contrary view would render S. 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong." 8. In view of the aforesaid law laid down, the petitioner cannot escape the liability on the ground that since he had issued a post dated cheque, payment of which was countermanded by closure of account, the same does not attract the ingredients of the offence charged. 9. In view of the above, I see no illegality and infirmity in the judgment of conviction and order of sentence impugned in this case passed by the trial court which has been confirmed by the appellate court with certain modification of sentence and as such, this criminal revision is devoid of merit and accordingly stands dismissed. LCR along with copy of this order be returned forthwith.