Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 204 (ORI)

Dipti Ranjan Mohapatra v. Mayadhar Nayak

2019-03-11

D.DASH

body2019
JUDGMENT D. Dash, J. - The petitioner (accused) has filed this revision questioning the legality and propriety of the judgment dated 30.07.2016 passed by the learned 3rd. Additional Sessions Judge, Cuttack in Criminal Appeal No.101 of 2015, which had been filed by the petitioner as the appellant questioning the correctness of the judgment of conviction and order of sentence dated 25.08.2015 passed by the learned J.M.F.C., Cuttack in ICC Case 2. The case of the complainant is that the accused, being the owner in possession of a piece of land in Mouza-Siso expressed his desire to sell the same for a consideration of Rs. 6,50,000/-. The complainant, having agreed to the same, paid an advance consideration of Rs. 3,75,000/ -.The accused then had issued two money receipts and executed two registered deeds of power of attorney in favour of the complainant. It is Decided on 11th March, 2019. stated that the accused subsequently having decided not to sell the said land, as per the terms and conditions of the agreement, so as to refund the advance consideration in that eventuality, on 15.3.2011 issued a cheque bearing No. 618450 amounting to Rs. 3,75,000/- drawn on State Bank of India in favour of the complainant. The cheque, being presented for collection on the very day, it bounced back with the remarks that "funds insufficient". So, the complainant issued a demand notice in terms of clause (b) of proviso to section 138 of the NI Act by registered post with AD on 17.3.2011, which was received by the accused on 21.3.2011 and when the accused did not pay any heed to the same, the complaint has been lodged. 3. The accused, in the trial, has taken the plea of complete denial as to the facts narrated in the complaint except to the extent that the signature in the agreement admitted in evidence as Ext. 10 is his own, so also the signatures on the cheque admitted in evidence as Ext. 1 and the factum of receipt of the demand notice is not disputed. 4. None appeared on behalf of the petitioner when the matter is called for hearing. That was the situation on prior dates. The revision having been admitted, I have heard learned counsel for the opposite party No. 12 with reference to the grounds of attack as mentioned in the revision petitioner. The judgment of the courts below have been perused. 4. None appeared on behalf of the petitioner when the matter is called for hearing. That was the situation on prior dates. The revision having been admitted, I have heard learned counsel for the opposite party No. 12 with reference to the grounds of attack as mentioned in the revision petitioner. The judgment of the courts below have been perused. 5. The trial court, on analysis of evidence, has recorded the conviction as to the commission of offence under section 138 of the NI Act by the accused. He has been accordingly sentenced to undergo simple imprisonment for a period of one year and to pay a sum of Rs. 7,50,000/ - towards compensation to the complainant with the default stipulation to suffer simple imprisonment for three months. 6. The appellate court, on analysis of evidence at its level, having gone to address the contentions raised by the accused, has found no justification to differ with the finding of the trial court. Accordingly, the judgment of conviction having been found to be in order, the order of sentence has not been interfered with. 7. A careful reading being given to the revision petition, the accused appears to have mainly raised the following grounds to attack the judgment of the finding of the conviction : "4. For that learned court below have not considered that the document exhibited as Ext. 10 has not at all executed by the petitioner at any point of time and for that reason, the defence wanted to examine the notary before whom the said document has been alleged to have executed moreover during cross-examination, the opposite party No 1 has also admitted that earlier to this occurrence, there was an issue in which there was an allegation that the opposite party and others have forcibly took away the signature of the appellant and to that effect, one complaint case was filed before the learned J.M.F.C., (R), Cuttack. Thus, taking note of the fact that the execution of agreement is doubtful in nature, therefore, the learned courts below should not have placed any reliance on Ext.10, therefore, should have passed a judgment of acquittal instead of conviction; and 5. For that the learned courts below should have considered that the opposite party No.1 had earlier business relationship with the petitioner and out of such relationship, obtaining the alleged cheque in question cannot be ruled out. For that the learned courts below should have considered that the opposite party No.1 had earlier business relationship with the petitioner and out of such relationship, obtaining the alleged cheque in question cannot be ruled out. Thus, the liability of the petitioner is not properly proved thus taking note of the above fact, the learned courts below should have passed a judgment of acquittal instead of conviction." 8. The first ground has already been addressed by the Courts below. That touches upon the issuance of the cheques by the accused in discharge of legally enforceable debt or liability, if any. The evidence of the complainant examined as C.W. 1, as also the cheque, Ext. 10, have been taken into consideration in that context. The signature of the accused has been found to be there on Ext. 1 and Ext. 10. There being a clause in the agreement with regard to refund of advance consideration in certain eventuality, the cheque exactly to that amount of advance consideration as per the evidence of C.W. 1 has been found to have been issued. In that view of the matter, the accused saying to have never executed Ext. 10 is not at all believable and thus is of no significance. 9. In the absence of any specific evidence being let in on that score by the accused, the second ground raised has no leg to stand. In view of all the aforesaid, this Court does not find any such illegality or impropriety in the finding recorded by the courts below that the petitioner has committed offence under section 138 of the NI Act. The petitioner has been facing criminal prosecution since about seven and half years. 10. Considering the facts and circumstances, the order of sentence and compensation does not appear to commensurate with the offence and rather on a higher side. 11. In that view-of the matter, the order of sentence and compensation stands modified to the extent that the petitioner is to undergo simple imprisonment for a period of six months and pay a compensation of Rs. 5,00,000/ - (Rupees five lakhs only) to the complainant in default to undergo simple imprisonment for six months. 12. Accordingly, the revision stands disposed of only with the modification of the order of sentence and compensation to the extent as indicated above.