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2018 DIGILAW 356 (GAU)

Ghanashyam Das v. Madhab Chandra Das

2018-02-26

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 1. This appeal, under Section 378 of the Cr.P.C., is preferred against the judgment and order, dated 12-08-2008, passed by learned Additional Sessions Judge (FTC) No. 2, Kamrup, Guwahati, in Criminal Appeal No. 63 of 2006, acquitting the accused-appellant. 2. None appears on behalf of accused-appellant on call. However, heard Mr. B Sarma, learned Additional Public Prosecutor, Assam. Since, this is an old pending case of the year 2009; this Court proposes to dispose of this appeal on merit, after examining the evidence on record as well as the impugned judgment and the judgment of the learned trial Court. 3. Accordingly, I have perused the evidence on record and the judgment passed by the learned trial court on 08.09.2006, in Complaint Case No. 2637C/2005, under Section 138 of the Negotiable Instrument Act (hereinafter referred to as the NI Act), convicting and sentencing the accused appellant to undergo simple imprisonment for 6 months and also directed to pay the cheque amount of Rs. 2,50,000/- and a sum of Rs. 50,000/-, as compensation, totaling Rs. 3,00,000/-, and in default to undergo simple imprisonment for another six months. 4. The case of the complainant/present respondent No. 1 before the learned trial Court, vide above complaint, is that the accused/respondent, in discharge of his legal liability towards the present petitioner, issued a cheque, being No.231458, dated 12.04.2005, for Rs. 2,50,000/-, drawn at Vijaya Bank, RG Barua Road, Guwahati. 5. The further case of the complainant is that he deposited the said cheque in his bank, Punjab National Bank, Zoo Road Branch for collection, but the drawer bank returned the cheque dishonoured on the ground of insufficient fund in the account of the accused/respondent. The present petitioner issued legal notice upon the present accused-respondent, on 20.04.2005, under registered post with A/D, which he refused to accept. Therefore, the complaint under Section 138 of the NI Act was filed against him. 6. After exhausting all the legal formalities, the learned trial Court explained the particulars of offence to the accused-respondent no. 2, under Section 138 of the N.I. Act and proceeded to hear the case. The complainant adduced the evidence of three witnesses and defence also adduced the evidence of three witnesses. 7. After closure of the prosecution evidence, the statement of the accused-respondent was recorded, under Section 313 of the Cr.P.C, wherein he denied the allegations made against him. 8. 2, under Section 138 of the N.I. Act and proceeded to hear the case. The complainant adduced the evidence of three witnesses and defence also adduced the evidence of three witnesses. 7. After closure of the prosecution evidence, the statement of the accused-respondent was recorded, under Section 313 of the Cr.P.C, wherein he denied the allegations made against him. 8. I have scanned the evidence on record as well as the impugned judgments as stated above. The complainant/present petitioner has claimed that the cheque was issued to him for Rs. 2,50,000/- by the accused-respondent, which he deposited in his bank for encashment and the same was dishonoured due to insufficient fund in the account of the accused-respondent. The signature on the cheque is admitted by accused-respondent to be his, in his own evidence in defence. The complaint was filed before the learned trial Court before expiry of the period of the notice. The notice was refused by the accused-respondent No. 2 on 23.04.2005, which is reflected in exhibit 5, that is the envelope of the notice. Thereafter he filed the case before the learned trial Court on 06.05.2005, and as such, before completion of 15 days period of such refusal to accept the notice. 9. That being so, evidently, the complaint was filed in the learned Trial Court before time. That apart, there is no whisper in the evidence of the complainant/petitioner that the alleged cheque was issued in his favour in discharge of any debt/liability. He simply stated that the cheque was issued in his favour. Section 138 of the NI Act provides for punishment for dishonor of any cheque, issued in discharge of any debt or other liability. In the absence of any evidence led by the complainant/present petitioner himself that there was any debt or liability, it cannot be said that the aforesaid principal ingredient of Section 138 of the NI Act is attracted. 10. Under Section 139 of the NI Act, a presumption is always in favour of the holder of the cheque. Here, in the instant case, the present complainant/petitioner is the holder of the cheque, is an admitted position, and, therefore, presumption is in his favour of the holder/present petitioner unless the contrary is proved. But, at the same time, legally enforceable debt or liability has to be established by the complainant petitioner. Here, in the instant case, the present complainant/petitioner is the holder of the cheque, is an admitted position, and, therefore, presumption is in his favour of the holder/present petitioner unless the contrary is proved. But, at the same time, legally enforceable debt or liability has to be established by the complainant petitioner. Here, in this case, he has admitted that there is no business transaction between both of them and to make the alleged debt or liability legally enforceable, it has to be established that there were some transactions between them, in respect of the cheque amount, which evidently not available of the record. Therefore, the presumption under. Section 139 of the Cr.P.C, in the absence of any legally enforceable debt or liability, cannot arise. 11. That being so, in the considered view of this Court, the judgment of learned appellant Court of Additional Sessions Judge (FTC) No. 2, Kamrup (Metro), Guwahati is based on materials on record and requires no interference. Therefore the appeal is dismissed. 12. Send that the LCR along with a copy of this judgment and order.