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2017 DIGILAW 1297 (GAU)

Sukhari Rai v. Biraj Pranjal Gogoi

2017-09-15

RUMI KUMARI PHUKAN

body2017
JUDGMENT : 1. This revision has been preferred by the petitioner-accused Sri Sukhari Rai against the judgment and order dated 29.3.2008 passed by the learned Addl. Sessions Judge No. 2 (FTC), Tinsukia in Crl. Appeal No. 85(4)2007 where by the learned Judge affirmed the judgment and order dated 3.11.2007 passed by the learned Addl. Chief judicial Magistrate, Tinsukia where by the learned trial court has convicted the petitioner-accused under section 138 of the NI Act and sentenced to pay a fine of Rs. 75,000 and in default of payment of fine to undergo simple imprisonment for two months. 2. The material facts which have led to the making of the present revision application may be set out as follows- 3. That the opposite party/complainant Biraj Pranjal Gogoi filed a complaint before the learned Chief Judicial Magistrate, Tinsukia for prosecution of the present petitioner Sukhari Rai as accused under section 138 of the Negotiable Instrument Act R/W 420 IPC. His case is that his father and himself was the owner and occupier of a plot of land measuring 2 Bigha covered by Dag No. 58 of PP No. 8 situated at Pakharijan in Tinsukia district. They sold and delivered possession of the said land to Sukhari Rai at a consideration of Rs. 1,10,000 and the accused-petitioner Sukhari Rai paid the amount through three cheques bearing Nos. 218126, 218127 and 218128 all are dated 20.7.2006 drawn on Federal Bank, Tinsukia Branch. A separate un-registered agreement was also executed in this regard where in also mentioned that the cheques were belongs to the accused in respect of his A/C No. 9137 of the Federal Bank. Out of the aforesaid three cheques, cheque No. 21816 dated 20.7.2006 for Rs. 40,000 was duly en-cashed but the rest two cheques were dishonored which were presented on 23.10.2006 and 11.12.2006. There after the complainant issued a demand notice to the accused demanding payment of Rs. 70,000 within 15 days from the date of the receipt of the notice and the notice was duly served. But as the accused failed to make payment of the amount, as such the complainant has brought the aforesaid complaint case against the accused-petitioner. 4. Upon receiving the complaint the learned trial court has examined the complainant and issued the process against the accused. But as the accused failed to make payment of the amount, as such the complainant has brought the aforesaid complaint case against the accused-petitioner. 4. Upon receiving the complaint the learned trial court has examined the complainant and issued the process against the accused. On appearance of the accused, particulars of offence under section 138 of the Negotiable Instrument Act read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 5. During the trial, complainant side has examined two witnesses while the defense adduced none. Statement of the accused also recorded under section 313, Cr.PC and his plea is total denial and after completion of the trial the learned trial court has convicted the present petitioner-accused for the sentence as has been mentioned above. 6. Being aggrieved and dissatisfied with the order of sentence, the present revision has been preferred by the petitioner-accused on the grounds mentioned in the memo of revision. 7. I have heard argument of learned counsel for both sides. 8. During the course of hearing learned counsel for the petitioner Mr. P.J. Saikia has contended the cheques in question were self drawn cheques and not the bearer cheques. Neither the complainant was the payee nor the holder in due course and as such the provision of sections 118 and 139 of the NI Act is not applicable and there is no any legally enforceable debt. 9. It was next contended that the purported agreement was executed by the father of the complainant. The complainant is not the party to the alleged agreement nor he is power of attorney holder. 10. Again submitted that the fact as stated in the complaint and the content of the notice Ext. 10 is different. As per the notice the land was sold by the complainant and the cheques were issued to him. But as per the complaint the land was sold by the complainant and his father Phandhar Gogoi and as per the unregistered deed Ext. 1 Phanidhar Gogoi the father of the complainant agreed to sale the land in question to Biren Orang, Bijoy Orang and Ranjoi Orang and not to the accused-petitioner. Neither the accused not the complainant was the party to the deed. 11. Learned counsel for the opposite party Mr. 1 Phanidhar Gogoi the father of the complainant agreed to sale the land in question to Biren Orang, Bijoy Orang and Ranjoi Orang and not to the accused-petitioner. Neither the accused not the complainant was the party to the deed. 11. Learned counsel for the opposite party Mr. B.M. Choudhuary has contended that the learned court below rightly decided the question about the notice and debts and petitioner is also holder in due course and, hence, this revision is liable to be dismissed. 12. Let us appreciate all aspect of the matter and the evidence on record. 13. As provided by the section 139 of the NI Act unless contrary is proved the court shall presume that the holder of the cheque holds the same for the discharge, in whole or part, of the debt or other liability of the drawer. But the presumption is rebuttable. Apart from that presumption is also available under section 118(g) of the NI Act which says that until the contrary is proved, it shall be presumed that the holder of a negotiable instrument is a holder in due course. 14. Now, in this case, the question is whether the complainant is the holder of the cheques in question? 15. In this case the accused in his statement under section 313, Cr.PC simply denied about the issuance of the cheque in question in favour of the complaint. But no any evidence was adduced by the defense side. But the holder of a cheque becomes a holder in due course, only when he become the possessor there of for consideration without knowing the defect in the title of the person from whom he drive the title in due course. 16. In this case the complainant Biraj Pranjal Gogoi examined himself as PW 1. In his evidence stated that he along with his father sold 2 bigha of land covered by Dag No. 58 of PP No. 8 situated at Bhimpara under Tinsukia Mouza to Sri Biren Orang, Sri Bijoy Orang and Sri Ranjay Orang at a consideration of Rs. 1,10,000 and the accused person stood as a surety to make the payment. He has exhibited the purchase agreement as Ext. 1 which is basis of the issuance of the alleged cheques which shows the cheques in question were not issued to the complainant. 1,10,000 and the accused person stood as a surety to make the payment. He has exhibited the purchase agreement as Ext. 1 which is basis of the issuance of the alleged cheques which shows the cheques in question were not issued to the complainant. Though the complainant had possessed the cheques in questions and the same were dishonored due to in sufficient fund in the account of the accused and the bank had also issued a memo Ext. 9 in this regard to the complainant but the Ext. 1 negates that the same were issued to the complainant for consideration and in discharge of a legal liability. Ext. 1 reveals that the said agreement for sale was executed in between Phandhar Gogoi and Biren Orang, Bijoy Orang and Ranjoy Orang. The complainant (CW1) in his cross-examination also admitted that in Ext. 1 his signature in not there. So, the complainant was neither a party to the said sale agreement nor there is anything to show that he was the joint owner of the land mentioned in Ext. 1. Though the complainant in his complaint as well as in his evidence stated that he and his father sold the land in question for which the accused had issued the cheque in questions but the said fact is not supported by his documents Ext. 1 agreement for sale. As per the agreement complaint was not the party to the agreement. Again in his notice Ext. 10 stated that he sold the land in question to the accused which is also not supported by Ext. 1. He has stated two different story in his notice and in the complaint and in his evidence in affidavit. Again, as stated in the agreement Ext. 1 the same was executed in between Phanidhar Gogoi and Biren Orang, Bijoy Orang and Ranjoy Orang. So, nothing appears that the cheques in question were issued by the accused in favour of the complainant as a consideration for sale of land and in discharge of his existing debt and as such it can not be presumed that the complainant is the holder in due course in the eye of law. 17. As discussed above the cheques in questions were issued in favour of Phanidhar Gogoi who is the father of the complainant. 17. As discussed above the cheques in questions were issued in favour of Phanidhar Gogoi who is the father of the complainant. The complainant in his cross-examination also admitted that no any power of attorney was executed in his favour by his father to file this case. As the complainant was not authorized to file the case and without having any power of attorney he had filed the case for dishonor of cheques which were not issued in his favour by the accused for some consideration and in discharge of his existing liability, under such circumstances of the case and on this count alone the case is liable to be dismissed. 18. In the result the revision is allowed and the judgment of both the court set aside and the accused is set at liberty 19. Return the LCR along with a copy of this judgment to the court below.