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2018 DIGILAW 1133 (JHR)

Emrensiya Ekka v. State of Jharkhand

2018-05-16

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
ORDER : 1. Heard learned counsel for the petitioner and learned A.P.P. for the State. 2. This petition seeking special leave to appeal against the judgment of acquittal dated 27.11.2017 passed in Complaint Case No. 125/2016/T.R. No. 824/2017 by the learned Judicial Magistrate, 1st Class, Gumla whereunder the sole accused/opposite party No. 2 has been acquitted of the charges under Section 138 of the N.I. Act, is barred by a delay of 41 days. Petitioner has sought condonation of delay through I.A. No. 2638/2018. 3. Learned counsel for the petitioner submits that some time was consumed in obtaining the certified copy of the order and thereafter he approached the counsel in this Court to file the instant petition. Due to said reason there has been minor delay of 41 days in presenting the petition. Therefore, it may be condoned, otherwise the petitioner may suffer irreparably. 4. Learned A.P.P. has not opposed to the prayer for condonation of delay. 5. Having regard to the explanation furnished, delay in filing the petition is condoned. I.A. No. 2638/2018 stands disposed of. 6. We have considered the submissions of learned counsel for the petitioner and learned A.P.P. on the merits of the prayer relating to grant of special leave to appeal. As per the prosecution story borne on record, accused is stated to be a friend of the husband of the complainant and there was good relationship between both the parties. He was working as Government contractor and took money several times from the complainant and returned them after some time. The complainant retired on 30.6.2012 from the post of A.N.M. in Health Department. She had saved money out of her post-retiral benefits for education and marriage of her daughter. The accused on coming to know of the said facts, started visiting the house of the complainant for demanding money. In September 2013 he asked for some money from the complainant and assured her to return the amount with interest @ 18 % per annum. Rs. 5 lakh was given through cheque on 3.11.2013 bearing No. 289648 and again on 12.10.2014 she gave Rs. 4 lakh through cheque No. 289654 which were encashed by the accused. Complainant demanded her money after some time but on some pretext it was refused. She again pressed for return of the money due to settlement of marriage of her daughter, but the accused did not oblige. 4 lakh through cheque No. 289654 which were encashed by the accused. Complainant demanded her money after some time but on some pretext it was refused. She again pressed for return of the money due to settlement of marriage of her daughter, but the accused did not oblige. However, on being pressurized he issued a cheque bearing No. 043552 of Rs. 5,00,000/- on 12.4.2016 and issued another cheque bearing No. 043551 of Rs. 4,00,000/- on 13.4.2016. Both the cheques, on being presented before the Indian Overseas Bank, Gumla on 17.5.2016, were dishonoured due to insufficient fund. Marriage of the complainant's daughter was organized on 8.6.2016 as per the schedule and Rs. 6,00,000/- were spent. Complainant requested him to return the money which he denied. She sent a legal notice on 3.6.2016 which the accused replied on 29.6.2016, but till date he did not return the money, therefore, the complaint case lodged. 7. Finding prima-facie case after solemn affirmation and inquiry, accused was summoned to face trial. After charges were framed under Section 138, N.I. Act and explained to him, he denied and claimed to be tried. 8. The complainant produced three witnesses: CW-1 being the complainant herself, CW-2 Seema Ram Ekka and CW-3 Raymod Ekka. This complainant supported her case made out in the complaint and stated that both the cheques issued by the accused, stood dishonoured on being presented as per the information furnished by the bank on 19.5.2016. Thereafter, she issued legal notice but he did not return money. The writing and signature of the accused on both the cheques were marked as Exhibits-1 and 1/1. She identified the receipt and signature of bank employee which were exhibited as Exhibits-2 and 2/1. She also identified the two return memo's as Exhibits-3 and 3/1. She claimed to identify the accused. 9. CW-2 supported the case of the complainant about issuance of the cheques and its dishonour due to insufficient fund. CW-3 deposed that accused was regular visitor of her house and there was money transaction between the accused and his wife. His wife retired in 2012 from the post of A.N.M. and kept her retiral dues in Indian Overseas Bank. He also deposed about issuance of two cheques by the complainant which the accused failed to return due to insufficient fund. His wife retired in 2012 from the post of A.N.M. and kept her retiral dues in Indian Overseas Bank. He also deposed about issuance of two cheques by the complainant which the accused failed to return due to insufficient fund. He had deposed that legal notice was issued against the accused, but the accused did not return the said amount. The statement under Section 313, Cr. PC was recorded after the examination of the prosecution witnesses where he had denied the commission of the offence and claimed to be innocent and that he had been falsely implicated in the case. 10. DW-1 accused deposed that the complainant had given two cheques and during money transaction an agreement was prepared. He further deposed that he had returned Rs. 14,00,000/- in place of Rs. 9,00,000/-. The complainant is doing the business of money laundering. DW-2 Bal Mukund Mahto deposed that money transaction took place through cheque and agreement was prepared at the home of the complainant. He further deposed that complainant had given money to the accused on interest and agreement was written by the witness. 11. Learned trial Court analysed the material evidence on record on the issue as to whether the ingredients prescribed under Section 138 N.I. Act have been fulfilled or not. It came to the finding that one of the important ingredients of the offence as prescribed under Section 138(c) relating to giving of legal notice upon the accused had not been fulfilled by the complainant. After the dishonour of the cheques on 19.5.2016 complainant had filed complaint petition on 2.7.2016 but had not brought on record any document that she issued legal notice to the accused which is one of the mandatory conditions to fulfil ingredients of Section 138(c) of the N.I. Act. 12. In such circumstances, the complainant had failed to fulfil all the conditions of Section 138 of the N.I. Act and thereby failed to prove the case beyond shadow of all reasonable doubts. Therefore, the accused person was acquitted of the charge. 13. Learned counsel for the petitioner submits that statements were made in the complaint at paragraph 13 that legal notice was issued upon accused. Legal notice is at Annexure-2 and the reply of the accused is at Annexure-3. Therefore, the accused person was acquitted of the charge. 13. Learned counsel for the petitioner submits that statements were made in the complaint at paragraph 13 that legal notice was issued upon accused. Legal notice is at Annexure-2 and the reply of the accused is at Annexure-3. Learned counsel for the petitioner has however not been able to dispute the finding of the learned trial Court that the documentary evidence relating to giving of notice and any reply made thereto by the accused, had not been adduced as evidence during the trial. The ingredients under Section 138 of the N.I. Act thereby have not been fulfilled in all respects. In that light learned counsel for the petitioner has failed to dislodge the finding of the learned trial Court. 14. Learned A.P.P. has supported the impugned findings of the acquittal rendered by the learned trial Court. He submits that the offence is of technical nature. All the five ingredients of Section 138 of the N.I. Act need to be mandatorily satisfied for constituting the offence. If the complainant failed to adduce evidence in order to show that the legal notice was issued upon him after receipt of the return memo of the bank and the accused failed to make good the payment within 15 days thereof, then the cause of action for filing the complaint had not arisen under Section 142(b) of the N.I. Act. 15. Having regard to the aforesaid materials on record and discussions made, we find that the petitioner has not made out any good grounds for grant of special leave to appeal. Accordingly, the instant petition stands dismissed. Appeal dismissed.