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2019 DIGILAW 356 (ORI)

Devendra Kishor Verma v. Prema Prakash Panigrahi

2019-04-25

D.DASH

body2019
JUDGMENT D. Dash, J. - The petitioner by filing this revision has assailed the judgment dated 30.04.2013 passed by the Learned Additional Sessions Judge, Sambalpur confirming the judgment of conviction and order of sentence dated 24.02.2012 passed by the learned S.D.J.M Sambalpur in ICC Case No. 17 of 2010. 2. The facts of the case are as under:- On 22.09.2008, the petitioner (accused) approached the opposite party (complainant) to advance a friendly loan of Rs. 3,50,000/- for the purpose of clearance of the loan that he had taken from City Corporation Finance Limited in purchasing a Oil tanker which was then seized by the Financier for default of the payment of instalments and for its release. The Accused in presence of one Chandramani Paul who had accompanied him, expressed his willingness to execute a bond for that advance and to issue post dated cheque towards the discharge of the debt and liability. It is thus said that believing the words of the accused and in good faith, the complainant gave a sum of Rs. 350 lakhs by issuing a cheque bearing no. 443579 dated 22.09.2008 drawn on his account with State Bank of India, Sambalpur Branch in favour of the accused. The accused withdrew said amount by presenting that cheque. He then as promised issued a cheque bearing no. 572006 dated 21.10.2008 in favour of the complainant drawn on his account with Bank of India, Jharsuguda Branch with further promise to repay the amount on or before 21.1.2008 While executing the bond, it had been agreed that on mutual consent there may be extension of time of payment. The accused had promised therein that the cheque issued by him would be duly honoured in discharge of his debt or liability when presented. That Chandramani who had accompanied the accused had written the bond and this accused had signed on it. However, the accused when failed to refund the money in time, the complainant issued a letter dated 12.03.2009 demanding the payment of the said amount by registered post with AD on 14.03.2009. It was found that accused after issuing the cheque had closed his savings bank account on which that cheque had been drawn and after receiving the letter from the complainant, he approached the complainant on 18.03.2009 and substituted the previous cheque by giving a fresh one bearing no. It was found that accused after issuing the cheque had closed his savings bank account on which that cheque had been drawn and after receiving the letter from the complainant, he approached the complainant on 18.03.2009 and substituted the previous cheque by giving a fresh one bearing no. 131226 drawn on his account with Union Bank of India, Jharsuguda. He had then on the reverse of that bond written in his own handwriting as under:- "The subject matter stated in front page has been considered and with mutual consent and after the letter dated 12.3.2009, the loan has been extended for some more time for which a post dated cheque has been executed (cheque no. 131226, Union Bank of India, JSGA, A/c no. 9864) substituted in lien of the previous cheque in discharge of liability." On 18.12.2009, when the complainant placed the said cheque with his banker i.e. State Bank of India, Sambalpur Branch Evening branch, was surprised to learn that said cheque bounced back and dishonoured for insufficient funds. The complainant then sent a demand notice dated 30.12.2009 by registered post to accused in terms of proviso to subsection of 138 of the N.I. Act and when having received the same on 02.01.2009 when did not pay any heed to it for payment of the money borrowed from the complainant in order to discharge the same, the complaint has been lodged. The defence case is that he has already paid the loan amount with further a sum of Rs. 5,000/- to the complainant and that the complaint has been filed on false and frivolous ground. 3. The trial court examining the evidence of the complainant and that of one Bhajamana Mehera examined on behalf of the defence; upon further scrutiny of the documents admitted from the side of the complainant as also the defence and on evaluation of the same, has ultimately repelled the defence plea as regards payment of the loan amount with further sum to the complainant in showing that he owes no liability of paying any further amount to 'the complainant. The case of the complainant having been found to have been established through evidence, the accused has been convicted for commission of offence under section 138 of the N.I. Act and sentenced to pay fine of Rs. The case of the complainant having been found to have been established through evidence, the accused has been convicted for commission of offence under section 138 of the N.I. Act and sentenced to pay fine of Rs. 4,00,000/- (Rupees four lakh) in default to undergo simple imprisonment for six months with further stipulation that the said fine amount would be paid to the complainant as compensation. 4. The appellate court being moved by the accused has gone to dismiss the appeal and accordingly, the judgment of conviction and order of sentence passed by the trial court have been confirmed. 5. Learned counsel for the petitioner submitted that the courts below without any justifiable reason have repelled the defence case as regards payment of the entire amount taken by the accused as friendly loan from the complainant with payment of further sum of Rs. 5,000/- as have been proved through Exts. A to G. In view of the above, he contended that the courts below ought to have held that the presumption under section 139 of the N.I. Act has been well rebutted. He next submitted that in the absence of any such acceptable evidence from the side of the complainant as regards the subsisting debt or liability resting on the shoulder of the accused so as to meet the demand of payment of Rs. 3,50,000/ - made by the complainant on the day of issuance of that notice of demand giving rise to the cause of action to file the complaint for alleged nonpayment of the amount by the accused, the courts below ought to have dismissed the complaint. Learned counsel for the opposite party submitted all in favour of the impugned judgment passed by the lower appellate court in confirming the judgment of conviction and order of sentence which had been returned by the trial court. According to him, both the courts below have made threadbare discussion of the evidence with regard to that payment part as has been asserted by the accused and have rightly arrived at the conclusion that said payments under Ext. A to G do not concern with the transaction for which the bond had been executed and finally, the second cheque in question had been issued. A to G do not concern with the transaction for which the bond had been executed and finally, the second cheque in question had been issued. He thus, submitted that in that view of the matter, the presumption available under section 139 of the Act can never be said to have, been rebutted which has been so held by the courts below. According to him, the courts below have rightly held the accused to have committed offence under section 138 of the N.I. Act and sentenced him to pay the reasonable amount as fine for its onward payment to the complainant as compensation. 6. Keeping in view the above rival submissions, I have perused the judgment of both the courts below. It is the case and evidence of the complainant that on 22.09.2008, the accused had borrowed a sum of Rs. 3,50,000/- from the complainant for the purpose of getting rid of his liability in the matter of loan taken by him for purchasing one Oil tanker. The accused in his statement recorded under section 313 of the Cr.P.C., 1973 has not raised any dispute as on that factual aspect. The cheque in question is Ext. 1 which had been issued on 18.12.2009. The complainant having tendered evidence with regard to the issuance of cheque by the accused towards the repayment of the loan advanced by him to the accused and his coming to hold the cheque in question in due course of time there surfaces no such material to the contrary nor any feature appears there in the evidence to raise doubt on that aspect. The above facts thus stand established. Furthermore, there remains all the proof with regard to the compliance of the provision of law as regards issuance of notice of demand to the accused and its receipt which are the preconditions for lodging the complaint. It is the case of the accused that after receipt of the demand notice, he approached the complainant and there was a settlement in the matter of payment of the money in instalments and accordingly on different dates he has paid the money and cleared his entire liability on that account The trial court at paragraph -9 of the judgment has gone for elaborate discussion of the evidence let in by the defence on that score. The defence plea of payment of the loan dues is based on the documents proved from his side and admitted in evidence being marked Ext. A to G. This has been discarded by both the courts below by assigning good and acceptable reasons. It is seen from the evidence that even those Exts. A to E relate to a period prior to the issuance of the cheque, Ext.1. The accused is not coming forward with any explanation as to why and under what circumstance despite such payments prior to 18.12.2009, he had again issued the cheque as on that day i.e. on 18.l2.2009. Rather the endorsement made by the accused as on 18.12.2009 on the reverse of the bond very much belies the projected defence story as to payment. This Court further giving a careful reading to the evidence on record and side by side going through the discussion of the same as has been made by the.courts below in arriving at a conclusion as to the commission of offence under section 138 of the N.I. Act by the accused by not making the payment of the amount covered under the cheque i.e. Ext.1, does not find any such-perversity in the matter of appreciation of evidence in coming to that conclusion. The courts below have neither ignored any important evidence on record on that score nor is seen to have read some extraneous into the evidence so as to say that had those been taken into account in their proper perspective, the finding would not have been the one that the accused is guilty for commission of offence under section 138 of the N.I. Act. In view of all the above, the appellate court appears to have rightly taken the view that those Exts.A to G have no concern with the money covered under the cheque, Ext. 1. Moreover, the accused even on payment of such major sum, as asserted, showing his conduct in maintaining total silence on receipt of notice of demand runs against the defence so taken. In that view of the matter, this Court does not find any such justification to set aside the impugned judgment of conviction in exercise of re-visional jurisdiction. 1. Moreover, the accused even on payment of such major sum, as asserted, showing his conduct in maintaining total silence on receipt of notice of demand runs against the defence so taken. In that view of the matter, this Court does not find any such justification to set aside the impugned judgment of conviction in exercise of re-visional jurisdiction. However, the order of sentence passed by the courts below being found to have not been so passed in consonance with the settled position of law, further keeping in view the very objectives sought to be achieved by introduction of said penal provision in the statute, it is felt proper to interfere with the same that in setting aside the sentence of imposition of fine with the stipulation for its onward payment to the complainant in case of realization, it is directed that the accused would pay a sum of Rs. 3,95,000/- as compensation to the complainant within a period of six weeks hence and in default of payment of compensation as above, the accused would undergo simple imprisonment for a period of six months. Any deposit made by the accused pursuant to the order of the courts in connection with the case, only in so far as the principal deposited sum is concerned, shall stand adjusted towards the payment of compensation as above. 7. The Revision is accordingly disposed of with the modification as to order of sentence to the extent as indicated above.