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2019 DIGILAW 243 (ORI)

M. Suresh Chandra Rao v. Milan Das

2019-03-26

D.DASH

body2019
JUDGMENT D. Dash, J. - In this appeal under section 378 (4) of the Code of Criminal Procedure, 1973 the appellant assails the judgment dated 23.12.1999 passed by the learned J.M.F.C., Cuttack in ICC Case No. 230 of 1998 (373-T-99). By the impugned judgment, the court below has held the respondent (accused) as not guilty of offence under section 138 of the N.I. Act and accordingly, the accused has been acquitted and consequent upon the same, the complaint filed by the appellant has been dismissed. 2. The case of the complainant in short is that he with Biswajit Mishra, Santosh Kumar Sahoo and accused had formed the partnership firm in the name and style of M/s. Software Associates for carrying on the business of training in computer software and management and other allied activities. It is stated that they had entered into the partnership deed on 02.04.1998 with contribution of Rs. 2.50 lakhs by each of them towards the capital of the said firm. It is further stated that subsequently due to some unavoidable circumstances, the complainant and another partner Santosh Kumar Sahoo desired to retire from the partnership and as per their mutual agreement, said partnership being dissolved, it was reconstituted on 25.08.1998 when accused Milan Das, Biswajit Mishra and Bhibu Charan Swain stood as partners of the said firm. It was mutually agreed that the complainant would be paid with a sum of Rs. 2.50 lakhs towards full and final settlement of all his dues in relation to that partnership firm account, so that he would have no further claim against the reconstituted firm and its partners. It is the case of the complainant that the accused Milan Das as per the agreement was to pay a sum of Rs. 2.50 lakhs to him towards full and final settlement of his retiral dues and accordingly he paid a sum of Rs. 2.25 lakhs in cash and for balance of Rs. 25,000/-, he issued a cheque dated 25.08.1998 drawn in his account with the Urban Co-operative Bank Ltd., Cuttack in favour of the complainant. The complainant receiving the said cheque placed it in his account with Allahabad Bank, Nayasarak Branch, Cuttack on 08.09.1998 for collection. The same however, bounced back with the noting as to its dishonor on account of insufficiency of funds in the said account of the accused. The complainant receiving the said cheque placed it in his account with Allahabad Bank, Nayasarak Branch, Cuttack on 08.09.1998 for collection. The same however, bounced back with the noting as to its dishonor on account of insufficiency of funds in the said account of the accused. On receipt of the said information, notice as required under the law was duly served upon the accused demanding him to make the payment of the amount involved under the cheque and as was came no response, the complaint was lodged. 3. The accused in the trial has taken the plea of denial and false implication. It is his further case that he has paid the entire dues of Rs. 2.50 lakhs to the complainant which he was to receive as his dues towards his retrial as partner of the said firm. He, therefore, claimed that he has not committed any offence under section 138 of the N.I. Act. 4. The trial court having recorded the evidence let in by the parties has arrived at a conclusion on analysis of evidence on record that:- (i) the complainant has not come up with clean hands; (ii) there was no dispute between the complainant and the accused as to the payment of money; (iii) the amount as agreed between the parties having been paid in cash as would be evident from the money receipt executed by the complainant in his own hand, there was no such subsisting debt or liability on the part of the accused towards the complainant for being discharged giving need for issuance of the cheque; and (iv) the case of the complainant that further sum of Rs. 25,000/-was required to be paid by the accused to him for which he had issued a cheque in favour of the complainant is thus not acceptable so as to fasten the guilt upon the accused for the dishonor of cheque, vide Ext. 1. 5. Learned counsel for the appellant submits that when cheque under Ext. 1 has been issued by the accused in favour of the complainant and that has been dishonoured for insufficiency of the funds in the account of the accused, the presumption as provided under section 139 of the N.I. Act has to drawn that it had been so issued by the accused for discharge of his debt or liability. 1 has been issued by the accused in favour of the complainant and that has been dishonoured for insufficiency of the funds in the account of the accused, the presumption as provided under section 139 of the N.I. Act has to drawn that it had been so issued by the accused for discharge of his debt or liability. According to him, said presumption has not been repelled by the accused and therefore the court below ought not to have further entered into the arena in finding as to whether Rs. 2.50 lakhs has been paid in cash to the complainant or not, especially, when the accused has not offered any explanation as to under what circumstance he had issued the cheque coming to the hands of the complainant. He submits that the finding of the court below that the complainant has not approached with clean hands is the outcome of perverse appreciation of evidence on record. It is also his submission that the court below ought not to have given much emphasis upon Ext. 8, the money receipt in view of the evidence of the complainant examined as P. W. 1 as finds place at para-4 of his deposition. He therefore, submits that it is a fit case for reversal of the order of acquittal in fastening the guilt upon the accused for offence under section 138 of the N.I. Act for being visited with imposition of appropriate sentence as provided in law. 6. Learned counsel for the respondent (accused) submits that the findings of the court below are based on just and proper appreciation of evidence. According to him, this Court in seisin of an appeal against an order of acquittal should not go for detail reappraisal of evidence. Placing the settled position of law that in an appeal against acquittal, the court is not concerned as to if another view is allowable on the basis of evidence and as even in that event the view taken by the court below cannot be substituted by the second view, unless the view of the trial court is perverse. Placing the settled position of law that in an appeal against acquittal, the court is not concerned as to if another view is allowable on the basis of evidence and as even in that event the view taken by the court below cannot be substituted by the second view, unless the view of the trial court is perverse. He contends that the case on hand is not the one where it can be said that the trial court's view is so perverse that there has been grave miscarriage of justice that the reversal of the order of acquittal based on such finding stands as the requirement in the eye of law. According to him, on the face of Ext. 8, the court below has not committed any mistake in dismissing the complaint. 7. The provision of section 139 of the N.I. Act allows the drawal of the presumption that the holder of a cheque received the cheque of the nature referred to in section 138 of the N.I. Act, for the discharge, in whole or in part of any debt or other liability in the absence of any proof to the contrary. The accused is said to have issued a cheque Ext. 1. The plea of the accused is that he had no such liability towards the complainant for being cleared necessiting issuance of said cheque worth Rs. 25,000/ -. It is his further plea that the entire dues of the complainant as settled and agreed upon when he made his exit from the partnership has been paid. In such state of affairs, with the drawal of presumption first, it is to be seen whether the accused has proved to the contrary as to show the nonexistence of any debt or other / resting on his shoulder towards its discharge in favour of the complainant. 8. Let us now come to the evidence of the complainant examined as P.W. 1, as to his version recorded at para-4 of his deposition which concern with the above aspect. The same runs as under:- "On 25.08.98 I executed a money receipt in favour of accused Milan Das and I have scribed the money receipt showing receipt of Rs. 2,50,000.00 but in fact I have received Rs. 2,25,000.00. I have scribed the money receipt as per the direction of accused. The same runs as under:- "On 25.08.98 I executed a money receipt in favour of accused Milan Das and I have scribed the money receipt showing receipt of Rs. 2,50,000.00 but in fact I have received Rs. 2,25,000.00. I have scribed the money receipt as per the direction of accused. In that money receipt witness like Ashok Mishra of Civil Township Rourkela has signed in the money receipt. Ext. 8 is the money receipt executed by me and it was delivered to accused Ext. 8/1 is my signature on the revenue stamp. After execution of money receipt (Ext.8) accused handed over me a cash of Rs. 2,25,000/- and a cheque of Rs. 25,000/-." 9. The complainant is a literate and man having the experiences in the field of his business. He does not deny to have so written on Ext. 8 as to receipt of Rs. 2.50 lakhs. In Ext. 8, there is no mention of part payment of cheque. He says that it had been issued as per the direction of the accused which the accused has flatly denied. If this Ext. 8 is taken into consideration, the very foundation of the case of the complainant that he had received cash of Rs. 2.25 lakhs and balance was paid by cheque worth Rs. 25,000/- falls flat on the ground. So here is a case where the presumption as available under section 139 of the N.I. Act is found to have been rebutted. Thus the basis element that said issuance of cheque vide Ext. 1 by the accused was for the discharge of his debt or other liability towards the complainant does not stand established so as to attract the culpability of the accused under section 138 of the N.I. Act. 10. In that view of the matter, this Court does not find any such justification to Interfere with the end result of the trial within the ambit and scope of this appeal under section 378 (4) of the Code of Criminal Procedure, 1973. In the wake of aforesaid, the appeal stands dismissed. Appeal dismissed.