Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1886 (JHR)

Sharwan Kumar Gupta v. State of Jharkhand

2019-11-20

DEEPAK ROSHAN

body2019
JUDGMENT : DEEPAK ROSHAN, J. 1. The instant application is directed against the judgment dated 12.02.2013, passed by the learned Additional Sessions Judge-IV, Palamau at Daltonganj, in Criminal Appeal No. 116 of 2012, whereby the appeal preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence dated 30.08.2012 passed by the learned CJM, Daltonganj in Complaint Case No. 536 of 2008 (T.R. No. 2574 of 2012) holding the petitioner guilty for the offence under Section 138 N.I. Act and sentencing him to undergo S.I. for 6 months with fine of Rs. 2,58,000/- has been affirmed. 2. The complainant’s case in brief is that the complainant and the petitioner are co-villagers and known to each other. The petitioner took loan of Rs. 2,58,000/- from the complainant on 05.01.2006 against his three decimals of land and house in village Satbarwa which he had mortgaged for a period of 2 years. The petitioner also promised to refund the aforesaid amount to the complainant within 2 years and if, he fails then he would execute a sale deed in respect of the aforesaid land to the complainant and for that written agreement was also executed between them. The further case of the complainant is that the accused did not refund Rs. 2,58,000/- to the complainant within the stipulated period nor executed the sale deed and, therefore, after the repeated persuation by the complainant, the petitioner issued 3 cheques of Vananchal Gramin Bank, Satbarwa Branch on 24.05.2008; two cheques for Rs. 95,000/- and one cheque Rs. 97,000/- in favour of the complainant, as against the loan amount alongwith compensation for holding money for 2½ years. It is the further case of the complainant that the petitioner assured the complainant that the said cheques would be cleared whenever they were presented in the Bank. On 24.05.2008, the complainant deposited the aforesaid cheques but they were dishonoured on account of insufficiency of fund in the account and the cheques were returned with memo. Thereafter, on 09.06.2008 the legal notice was received by the complainant but since the petitioner did not pay the amount, the complaint case was presented before the learned trial court. 3. On 24.05.2008, the complainant deposited the aforesaid cheques but they were dishonoured on account of insufficiency of fund in the account and the cheques were returned with memo. Thereafter, on 09.06.2008 the legal notice was received by the complainant but since the petitioner did not pay the amount, the complaint case was presented before the learned trial court. 3. On the basis of evidences, both oral and documentary, laid before him, the learned trial court came to the conclusion that the complainant has been able to prove the ingredients under Section 138 N.I. Act against the petitioner and found the petitioner guilty for the offence under Section 138 N.I. Act and sentenced him S.I. for 6 months with fine of Rs. 2,58,000/- to be paid by the petitioner to the complainant. It has also been ordered that if the petitioner fails to pay the fine he shall suffer further S.I. for one month. 4. Being aggrieved, the petitioner challenged the aforesaid order before the learned Sessions Judge-IV, Palamau being Criminal Appeal No. 116 of 2012 and the learned appellate court after appreciating the arguments adduced by the parties and after perusing the documents placed before him concurred with the finding of the learned trial court and dismissed the appeal. 5. The learned counsel for the petitioner submits that it is true that the loan was taken by the petitioner and an agreement to that effect was also signed stipulating therein that if the loan amount will not be repaid by the petitioner to the complainant then the petitioner shall execute the sale deed of the land which was mortgaged with the complainant as surety of the said loan. He further submits that the cheque was issued in favour of the complainant was undated. He further submits that there are contradictions in the deposition of the complainant witnesses and the prosecution has failed to prove its case beyond all shadow of reasonable doubts. 6. Per-contra, learned counsel for the opposite party no. 2 supports the impugned orders and submits that the case is very clear and all the ingredients of 138 N.I. Act has been fulfilled. The petitioner has failed to point out any error in the impugned orders as such, the instant application deserves to be dismissed. 7. 6. Per-contra, learned counsel for the opposite party no. 2 supports the impugned orders and submits that the case is very clear and all the ingredients of 138 N.I. Act has been fulfilled. The petitioner has failed to point out any error in the impugned orders as such, the instant application deserves to be dismissed. 7. Having heard learned counsels for the parties and after going through the impugned orders including the LCR, I am of the considered opinion that there is no error whatsoever in the impugned order and the petitioner has failed to point out any error in the impugned orders so as to warrant any interference by this Court. 8. It is an admitted fact that 3 cheques were signed by the petitioner of separate denomination, cheque nos. 340941 dated 24.05.2008 for Rs. 95,000/- Cheque No. 340942 dated 24.05.2008 for Rs. 95,000/- and cheque no. 340943 dated 24.05.2008 for Rs. 97,000/- in favour of the complainant. 9. It is also an admitted fact that an agreement dated 05.01.2006 was also signed by the petitioner alongwith money receipt dated 05.01.2006 and the said agreement dated 05.01.2006 was extended for further time by the parties. 10. In order to attract the offence under Section 138 of Negotiable Instrument Act the following ingredients are necessary. The proviso to Section 138 is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have 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. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make 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. The third condition is that the drawer of such a cheque should have failed to make 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. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque. The expression “cause of action” has been universally understood to mean the bundle of facts which the plaintiff must prove in order to entitle him to succeed in the suit. As per Section 142 of the N.I. Act, a complaint under Section 138 can be filed only after cause of action to do so has accrued in terms of Clause (c) of the proviso to Section 138 (provided the other two conditions specified above are also satisfied) which right remains legally enforceable for a period of 30 days counted from the date on which the cause of action accrued to him. 11. In the instant case, all the above ingredients are fulfilled and the petitioner has failed to point out any error in the impugned orders so as to warrant any interference by this Court. As a result, the instant revision application is dismissed. 12. The bail bonds furnished by the petitioner is, hereby, cancelled and the petitioner is directed to surrender before the learned trial court within a period of two month from today to serve his sentence as directed by the learned trial court. 13. Let the lower court record be sent to the concerned court forthwith. 14. Let the copy of the order be sent to the learned trial court forthwith.