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2017 DIGILAW 460 (ALL)

RAMJI GAUTAM v. ABHAI PATEL

2017-02-08

HARSH KUMAR

body2017
JUDGMENT : Hon'ble Harsh Kumar, J. Heard learned counsel for the applicant-appellant on the application for grant of leave to file the appeal against impugned order of acquittal dated 26.11.2016 passed by Judicial Magistrate, Court No.1, Varanasi in Complaint Case No.951 of 2012 (Ram Ji Gautam Vs. Abhai Patel), under section 138 of Negotiable Instrument Act, P.S. Maduradeeh, District Varanasi, acquitting the accused-opposite party of the charges framed against him. Learned counsel for the applicant-appellant contended that learned Magistrate has acted wrongly in rejecting the complaint and acquitting the respondent from the charges of offence under Section 138 N.I. Act; that it was proved from the evidence on record that the respondent had borrowed a sum of Rs.2,50,000/- from the applicant-appellant with an assurance of returning the same within six months and when he did not return the amount so paid to him on 24.1.2010 within six months, on repeated requests he issued cheque no.47444 to the applicant on Allahabad Bank, Ravindrapuri Branch, Varanasi on 7.7.2011 and upon tendering by applicant-appellant to his banker on the same day, the banker returned the cheque with the endorsement of its being dishonoured for want of funds in the account concerned; that the applicant-appellant served a legal notice to the respondent through his counsel on 12.9.2011 and when the payment was not made he filed the complaint on 30.9.2011 in which process under Section 204 Cr.P.C. were issued against the respondent on 5.6.2012; that the appellant-complainant proved his case by producing himself as a witness while the respondent with malafide intentions even denied his signatures on the cheque; that the evidence of Hand Writing and Finger Print Expert Vikas Srivastava as D.W.-1 is not admissible in evidence; that the impugned order is liable to be set-aside and allowing the complaint the respondent is liable to be convicted and sentenced; that the appellant has every hope of success in appeal and the leave to file appeal may kindly be granted. Upon hearing learned counsel and perusal of record and before proceeding further, it will be appropriate to reproduce the provisions of Section 138 and 142 of N.I. Act as under:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account. Upon hearing learned counsel and perusal of record and before proceeding further, it will be appropriate to reproduce the provisions of Section 138 and 142 of N.I. Act as under:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to [two] years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 142. 142. Cognizance of offences.- [(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).-(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) Such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138]. (2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,-- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated." From the above provisions, it is clear that the cheque may be presented to the banker within a period of six months from the date on which it was drawn or within the period of validity whichever is earlier and in case of dishonour of cheque the payee has to make a demand of the said amount of money by giving a notice in writing to the drawer of cheque within 30 days of the receipt of information of dishonouring of cheque by him and the drawer of cheque if fails to make payment within 30 days of the receipt of notice the payee may file a complaint under Section 138 N.I. Act within one month thereafter, as per provisions of Section 142(b) of N.I. Act. From the facts narrated by the trial court in the impugned judgment as well as by the learned counsel for the applicant-appellant in his arguments, the cheque was dishonoured on 7.7.2011 and as per provisions of Section 138(b) the notice must have been given within 30 days i.e. within 6.8.2011. However, undisputedly the notice was sent after 50 days on 12.9.2011 much beyond the prescribed period of 30 days and so the trial court has rightly dismissed the complaint observing that notice has not been served in accordance with the provisions of Section 138 N.I. Act. It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified". In view of discussions made above, I have come to the conclusion that the learned counsel for the applicant-appellant has failed to show that the learned trial court has not considered any evidence on record or has misread any evidence on record or to show any legal infirmity, incorrectness or perversity in the finding given in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the acquittal order and substituting it with conviction order. The application u/s 378 (4) Cr.P.C. has no force and is liable to be dismissed. The application u/s 378 (4) Cr.P.C. for leave to file appeal is dismissed accordingly and the appeal also stands dismissed.