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2018 DIGILAW 242 (ORI)

Jai Bajrang Traders v. Vishal Bansal

2018-03-12

S.K.SAHOO

body2018
JUDGMENT : S. K. Sahoo, J. Heard Mr. B.S. Dasparida, learned counsel for the petitioner. The petitioner M/s. Jai Bajrang Traders has filed this application under section 378(4) of Cr.P.C. for grant of leave to file appeal against the impugned judgment and order dated 26.03.2016 passed by learned J.M.F.C., Rourkela in I.C.C. Case No.587 of 2012/Trial No.505 of 2016 in acquitting the opposite party Vishal Bansal of the charge under section 138 of the Negotiable Instruments Act, 1881 (hereafter ‘N.I. Act’). The petitioner was the complainant in I.C.C. Case No.587 of 2012/Trial No.505 of 2016 in which the opp. party faced trial for commission of offence under section 138 of the N.I. Act. It is the prosecution case that the opp. party being a friend of the petitioner approached him for financial help of Rs.5,00,000/-(rupees five lakhs) only for a day on 13.09.2012 and accordingly the friendly loan was given to the opp. party by the petitioner due to friendship and for refund of the said amount, the opp. party stated to have issued and delivered a self/bearer cheque bearing No. 003601 dated 14.09.2012 drawn on ICICI Bank, Rourkela for an amount of Rs. 5,00,000/-(rupees five lakhs) to the complainant. The petitioner presented the cheque with his banker M/s. Indian Bank, Rourkela but the cheque bounced for the reason “payee name required” as intimated by the banker of the opp. party by its memo dated 17.09.2012. It is the case of the petitioner that there was insufficient fund in the account of the opp. party and the Manager of the ICICI Bank at the instance of the opp. party and in conspiracy gave the reason that the payee name is required as in a self/bearer cheque, the name of the payee is never required. The legal notice was sent by the petitioner by registered post with A.D. on 16.10.2012 which was received by the opp. party but he neither complied the demand nor gave any reply for which the complaint petition was filed. During course of trial, the complainant examined two witnesses. C.W.1 is the complainant himself and C.W. 2 is the Branch Manager of ICICI Bank. The complainant exhibited six documents. Ext.1 is the affidavit, Ext.2 is the cheque, Ext.3 is the cheque deposit slip, Ext.4 is the demand notice, Ext.5 is the postal notice and Ext.6 is the statement of the account. C.W.1 is the complainant himself and C.W. 2 is the Branch Manager of ICICI Bank. The complainant exhibited six documents. Ext.1 is the affidavit, Ext.2 is the cheque, Ext.3 is the cheque deposit slip, Ext.4 is the demand notice, Ext.5 is the postal notice and Ext.6 is the statement of the account. The defence plea was one of denial and it was further pleaded that since it was a self cheque, the offence under section 138 of the N.I. Act is not attracted. The learned trial Court formulated the following points for consideration:- (1) Whether the accused issued and delivered a self/bearer cheque bearing no.003601 dated 10.09.2012 drawn on ICICI Bank, Rourkela of Rs.5,00,000/-(rupees five lakhs) in favour of the complainant? (2) Whether the cheque when presented by the complainant through his banker M/s. Indian Bank, Rourkela bounced and returned for the reason “payee name is required” as intimated by the banker of the accused by its memo dated 17.09.2012? (3) Whether the complainant served a notice of demand u/s 138 of the N.I. Act on the accused through his advocate by registered post with A.D. on 16.10.2012 which he received but did not comply or reply? After assessing the evidence on record, the learned trial Court came to the conclusion that on the perusal of Ext.2, it seems that the cheque is a self drawn cheque in which self is written and in column of pay Rs.5,00,000/-(rupees five lakhs) has been mentioned. The signature of the opp. party–accused was on the end as well as on the back side of the cheque. It was further held that since it was a self drawn cheque and there is no endorsement anywhere in the body of the cheque for payment of the amount in favour of the complainant, therefore, the provisions under sections 13 and 14 of the N.I. Act as regards the bearer cheque and even the provisions under sections 15 and 16 of the N.I. Act as regards the endorsement are not applicable. It was further held that it was not a bearer cheque in favour of the complainant nor the Ext. 2 contains any endorsement under section 15 and 16 of the N.I. Act and therefore, it cannot be said that the opp. party had issued and delivered the said cheque in favour of the complainant in order to discharge his debt. It was further held that it was not a bearer cheque in favour of the complainant nor the Ext. 2 contains any endorsement under section 15 and 16 of the N.I. Act and therefore, it cannot be said that the opp. party had issued and delivered the said cheque in favour of the complainant in order to discharge his debt. The learned trial Court further held that on perusal of the evidence of C.Ws and Ext.3, it is established that the complainant presented the self cheque in the bank and the same was returned to him for payee name as required and it was intimated by the banker of the accused. So far as the service of the demand notice is concerned, the learned trial Court held that the complainant has failed to prove that the accused had received the notice or not and whether he had any notice which would bring to his knowledge that a cheque issued by him has been bounced and that he had a liability to pay the cheque amount to the complainant failing which legal proceedings shall be initiated against him. The learned trial Court took into account the statement of C.W.2, the Branch Manager who has stated that there was no endorsement on the cheque showing the name of the complainant and further held that it is well proved that Ext.2 is the self drawn cheque and it was not issued in favour of the complainant, neither endorsed in favour of the complainant and therefore, the provision of sections 118 and 139 of the N.I. Act are not applicable as the complainant is neither the payee nor a holder in due course and the dishonour of the self drawn cheque and written on the same for “payee name required” does not amount to penal offence under section 138 of the N.I. Act. In the case of Shri Ishar Alloys Steels Ltd. Vrs. Jayaswals NECO Ltd. reported in 2001 (1) Orissa Law Reviews 423, the Apex Court had observed : "6......It has always to be kept in mind that Section 138 of the Act creates an offence and the law relating to the penal provisions has to be interpreted strictly so that no one can ingeniously or insidiously or guilefully or strategically be prosecuted." In case of Dr. Jiten Barkakoti Vrs. Jiten Barkakoti Vrs. Subrata Patangia reported in 2005 Criminal Law Journal 3598, it was held that Ext. I is a self drawn cheque. It was not issued in favour of the complainant. It was also not endorsed in favour of the complainant. Hence, the provisions of Sections 118 and 139 of the Act are not applicable as the complainant is neither a payee nor a holder in due course and the dishonour of such self-drawn cheque does not amount to penal offence under Section 138 of the N. I. Act. In case of V. Rama Shetty Vrs. N. Sasidaran Nayar Major reported in 2007 (5) Recent Criminal Reports 208, it was held that Ex.P1 is a self cheque and not drawn in favour of other person. In that view, the provisions of Section 138 of N.I. Act will not attract for the dishonour of a self-drawn cheque. Law is well settled that if the view of acquittal could have been reasonably arrived at then the mere circumstance that the appellate Court would have taken a different view, would be no ground to interfere. Unless the findings of the trial Court are perverse or contrary to the materials on record, the High Court cannot in appeal substitute its findings, merely because another contrary opinion was possible on the basis of materials on record. The learned counsel for the petitioner failed to convince in what way the impugned judgment and order passed by the learned trial Court is illegal or there is any perversity in the same. After going through the impugned judgment and the grounds taken by the petitioner in the leave petition and on hearing the learned counsel for the petitioner, I am of the view that the learned trial Court has properly assessed the evidence on record and after going through the oral and as well as documentary evidence, correctly arrived at the conclusion that Ext.2 is a self drawn cheque and it was neither issued in favour of the complainant nor endorsed in favour of the complainant and therefore, the ingredients of the offence are not attracted. The view taken by the learned Magistrate is a reasonable and possible view. Therefore, I am not inclined to grant leave to the petitioner to prefer appeal against the impugned judgment and order of acquittal. Accordingly, the leave petition stands dismissed.