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2016 DIGILAW 165 (MAN)

G. Kakhagai Kabui v. Nongthombam Bobo Singh

2016-09-28

R.R.PRASAD

body2016
JUDGMENT & ORDER : This Revision Application is directed against the order dated 12.1.2016 passed by the learned Sessions Judge, Imphal West in Cril. Appeal No.19 of 2014/15 of 2015 whereby and whereunder learned Sessions Judge affirmed the judgment dated 31/12/13 and order of sentence dated 16/6/14 passed by the learned Chief Judicial Magistrate, Imphal West in Criminal Complaint Case No. 266/12 whereby and whereunder learned Chief Judicial Magistrate, Imphal while acquitting the appellant for the offence punishable u/s 420 of the IPC, convicted him for the offence punishable u/s 138 of the NI Act and passed the order to pay compensation of Rs.40/- lakhs (twice the amount covered under the two cheques) to the respondent. 2. The case of the complainant, as has been made out in the complaint petition, is that the complainant and the accused/appellant were known to each other since last 6(six) years as the complainant used to do contract work in the name of the appellant. The appellant borrowed a sum of Rs.40/- lakhs from the respondent on the promise that he will be returning it back after one year. In due course when the complainant demanded the money back, the appellant issued two self cheques (Ext.A/5 and Ext.A/6) of Rs.10/- lakh each. These cheques when were deposited got bounced. However, these two cheques are not the subject matter of prosecution. 3. According to the case of the complainant, the appellant, subsequently on demand, issued two cheques on 20.8.2012 each of Rs.10/- lakh in the name of the complainant. The complainant/respondent deposited the said cheque in the Imphal Urban Co-operative Bank Ltd. on 22.8.2012, but the said cheques were bounced due to insufficient fund. Thereafter, the complainant vide its letter dated 27.8.2012 informed the appellant about the said fact and again demanded money which was due to be paid. On 18.9.2012 the complainant again deposited the said cheque in his Account at Punjab National Bank. Again it got bounced back on account of the fact that the appellant’s account at Imphal Urban Co-operative Bank has been closed. Thereupon, a legal notice was sent to the accused on 22.9.2012 which was replied with by the accused appellant on 01.10.2012 and then the complaint was filed on 12.10.2012. 4. Again it got bounced back on account of the fact that the appellant’s account at Imphal Urban Co-operative Bank has been closed. Thereupon, a legal notice was sent to the accused on 22.9.2012 which was replied with by the accused appellant on 01.10.2012 and then the complaint was filed on 12.10.2012. 4. Upon cognizance being taken when the accused appeared, he was put on trial on the charge of committing offence u/s 420 of the IPC and also u/s 138 of the IPC. 5. During trial, 3 (three) witnesses were examined on behalf of the complainant/respondent who supported the case as had been made out in the complaint petition. During trial, those two cheques, which were self cheques, were adduced in evidence and were marked as Ext.5 and Ext.6 whereas 2(two) cheques which are the subject matter of the prosecution were marked as Ext.P/3 and P/4. The demand letter dated 27.8.2012 and legal notice dt 22.9.2012 were also marked as Ext.X/1 and Ext. P/1. The accused appellant, in course of the trial, took several defences whereby it was put forth that the complainant got the said cheques signed forcibly and that the letter of demand dated 27.8.2012 and legal notice dated 22.9.2012 have not been adduced in evidence in accordance with law and that the letter dated 27.8.2012 can never be taken to be the letter of demand rather demand letter, if any, can be taken to be the legal notice dated 22.9.2012 and thereby notice of demand in writing being not sent within 30 days of bouncing of cheque in terms of Section 138 (b) of the NI Act, any complaint lodged on such fact was not maintainable. 6. The trial court did not find any substance in any of the defences taken on behalf of the accused-appellant whereas the trial court, on the other hand, did find that the complainant has been able to establish the charge and thereby the trial court while acquitting the appellant u/s 420 of IPC, recorded the order of conviction u/s 138 of N.I. Act and passed the order to pay compensation of Rs.40/- lakhs (twice the amount covered under the two cheques). 7. 7. Being aggrieved with the order of conviction and sentence, the appellant preferred Criminal Appeal No.19/14/15/15 before the Sessions Judge, Imphal West wherein almost the same plea was taken by the appellant which did not find favour and accordingly the appeal was dismissed. 8. Being aggrieved with that order, this Revision application has been preferred. Ms. Romola, learned counsel appearing for the petitioner took the same plea which had been taken before the court below by raising the same issue that notice of demand was never sent within 30 days of it being dishonoured as has been prescribed u/s 138(b) of the NI Act and thereby court should not have taken cognizance of the offence as the complaint was barred by limitation. Further submission which was advanced is that complaint petition was not accompanied by the list of witnesses and that the cheques had never been given in discharge of any debt rather the complainant got it issued forcibly. 9. As against this Mr. Khagemba, learned counsel submits that all the points which have been raised on behalf of the petitioner has been dealt with effectively with legal sanction and found all the pleas being devoid of any merit. On the other hand, the court, after taking into account the evidence brought on record, found the complaint being lodged well within the time when the cheque which had been issued in discharge of debt got dishonoured and thereby order passed by the Court below never warrants to be interfered with. 10. Having heard learned counsel appearing for the parties, I do not find any merit in any of the submissions advanced on behalf of the appellant. The main point which was urged and had also been urged before the court below is that as per the case of the complainant, the cheques were dishonoured on 22.8.2012 information of which was given on 27.8.2012 but this information can never be said to be a letter of demand rather the letter of demand can be taken to be the legal notice issued on 22.9.2012 and thereby notice can never be said to have been given within 30 days of cheque being dishonoured as has been prescribed u/s 138(b) of the NI Act and hence the complaint was not maintainable. The said submission is devoid of any merit. The said submission is devoid of any merit. It be stated that it is the case of the complainant that the accused in discharge of debt had issued two cheques, Ext.p/3 and P/4 of Rs.10/- lakhs each on 20.8.2012 which on its deposit got dishonoured on 22.8.2012 and thereupon the complainant informed about it and demanded money vide its letter dated 27.8.2012 (Extx/1) sent by speed post copy of which has been annexed in this Revision Petition as Annexure-A/7. 11. From perusal of the said document, it appears the complainant categorically had put the demand in writing of making payment of the amount of Rs.40/- lakhs within 30 days of cheque being dishonoured. The accused has never denied in his 313 statement about receipt of the said notice. However, complainant has not come forward about the date when the notice was served. Even then it does not weaken the case of the complainant as u/s 27 of the General Clauses Act and also in terms of the provisions as contained in Section 114 of the Evidence Act, presumption would be there that the notice has been served within 30 days of its issuance. In other words, 26.9.2012 can be taken to be the date when the notice was served and thereby within 15 days i.e. by 10.10.2015 the accused-appellant was supposed to make payment. Since payment was not made, cause of action accrued to the complainant on 10.10.2012. In terms of the provision as contained in Section 142(b) of the N.I. Act the complaint was required to be made within 30 days i.e. upto 10.11.2012 but much before that the complaint was made on 12.10.2012 and thus the complaint was absolutely in time. Otherwise also taking the legal notice dated 22.9.2012 as demand notice instant complaint can be maintained. It be stated that in Sadanandan case reported in 1998(6) SCC 514 it had been held that while a cheque is presented afresh, the right to prosecute the drawer, if the cheque is dishonoured, is forfeited only because the previous dishonor had not resulted in immediate prosecution of the offender even when a notice under clause (b) of the proviso to section 138 had been served upon the drawer. That decision got overruled in a case of MSR Leathers Vs. That decision got overruled in a case of MSR Leathers Vs. S. Palaniappan & Others, (2013) (1)SCC 177 wherein it has been held that prosecution based upon second or successive dishonor of cheque is permissible so long it satisfies all the required stipulation in proviso to section 138 of N.I. Act even if earlier demand notice had been given. In the instant case it has been noticed that cheque got dishonoured second time on 18.9.2012. Thereupon legal notice was given on 22.9.2012 and when payment was not made the complaint was lodged on 12.10.2012 and as such prosecution can very much be maintained in view of the decision rendered in a case of MSR Leather (supra) 12. Going further in the matter, it be recorded that a plea has been taken that said cheque was never issued in discharge of any debt, rather the complainant forcibly got it issued but the accused has never proved this fact rather he has simply denied in his statement u/s 313 as stated above. Simple denial would not be sufficient to rebut presumption of cheque being issued in discharge of debt which presumption is drawn in terms of the Section 139 of the NI Act. So far as the submission relating to demand notice or the legal notice being not proved in accordance with law is concerned, I do not find any substance in it as the complainant has never denied about the issuance of the said demand notice or the legal notice, rather he, in his statement u/s 313, has simply denied the allegation made in the notice. 12.a So far the order of sentence is concerned, the learned trial court has imposed fine of Rs.40/- lakhs (twice the amount covered under the cheques) to be paid to the complainant as compensation in terms of the provision as contained in Section 357 of the Cr.PC. Those amount is to be paid in 10 installments on 10th of every month of the English calendar starting from September, 2014. Since that period got lapsed during pendency of appeal/revision, it would be desirable to direct the accused-appellant to start paying installment as has been ordered by the trial court from October, 2016. Those amount is to be paid in 10 installments on 10th of every month of the English calendar starting from September, 2014. Since that period got lapsed during pendency of appeal/revision, it would be desirable to direct the accused-appellant to start paying installment as has been ordered by the trial court from October, 2016. Thus, regard being had to the facts and circumstances of the case, I do not find any illegality in the judgment and order passed by the appellate court and hence Revision being devoid of any merit is hereby dismissed.