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2019 DIGILAW 380 (ORI)

Amrik Singh v. Debendra Ku. Tiwari

2019-05-01

D.DASH

body2019
JUDGMENT D. Dash, J. - This revision has been directed against the judgment dated 30.04.2013 passed by the learned Session Judge, Jharsuguda in Criminal Appeal No.09 of 2009. By the said judgment the finding of conviction and order of sentence passed by the learned J.M.F.C., Jharsuguda against the petitioner in Criminal Trial No.3535 of 2008 (Trial No. 159 of 2009) convicting the petitioner(accused) for commission of offence under Section 138, N.I. Act and sentencing him to undergo simple imprisonment for a period of six months and to pay compensation of Rs. 2,50,000/- to the opposite party(complainant) have been confirmed. 2. Case of the complainant is that he and the accused were good friends. The accused in view of his bad financial condition approached the complainant to advance him a um of Rs. 1,50,000/- in order to meet his urgent financial need so as to get rid of immediate problem. He promised that he would return the same within a short time. It is stated that the complainant accepting the request paid a sum of Rs. 1,50,000/- to the accused. However, when the money was not returned within the time as assured, several request being made, the accused went on avoiding. It is stated that when the complainant insisted the accused very much, he issued two cheques bearing No. 067743 and 067744 dated 29.02.2008 in favour of the complainant each worth of Rs. 75,000/- drawn on Central Bank of India, Belpahar Branch. The cheques were issued towards discharge of the liability of paying a sum of Rs. 1,50,000/- which the accused had taken as friendly loan from the complainant. The complainant then having deposited the cheques with his banker for collection of the sum covered thereunder, was surprised to learn that those were dishonoured because of insufficient fund in the account on which the cheques had been drawn. The Complainant then served notice of demand in terms of Clause-b of the Proviso of section 138 of the N.I. Act. The letter when came back with the endorsement are "addressee absent" for more than four days, the complainant could known that he was purposely avoiding the same and therefore, filed the complaint. 3. In the trial the accused took the plea of complete denial. 4. The letter when came back with the endorsement are "addressee absent" for more than four days, the complainant could known that he was purposely avoiding the same and therefore, filed the complaint. 3. In the trial the accused took the plea of complete denial. 4. The Trial Court on analysis of evidence of the complainant as also the accused examined as P.W.1 and D.W.1 respectively and on going through the documentary evidence, such as, the cheques in question (Exts. 1 and 2), the cheque return memo (Ext.4), demand notice (Ext.6) and the loan statement (Ext.7) held the accused to have committed offence under Section 138, N.I. Act and accordingly, sentenced him to undergo simple imprisonment for a period of six months and pay compensation of Rs. 2,50,000/- to the petitioner within four weeks with the stipulation that in case of nonpayment, it would be so realized in accordance with law. 5. Being aggrieved by the said finding of conviction and order of sentence, the petitioner carried an appeal to the Court of the learned Sessions Judge, Jharsuguda vide Criminal Appeal No.09 of 2009. The appeal has also met the same fate. Hence the revision. 6. None appears on behalf of the petitioner(accused) when the matter is called upon. 7. Heard Mr. S.J. Mohanty, learned counsel for the opposite party No. 1 (complainant). He submits that the Courts below have rightly found the accused guilty for commission of offence under section 138 of the N.I. Act. According to him, in the facts and circumstances of the case as have been established through evidence coupled with the presumption available under section 139 of the N.I. Act which squarely comes into play in the case, when there surfaces no material on record in the direction of probabilising the case of defence, the finding of conviction under section 138 of the N.I. Act recorded against the petitioner(accused) is unassailable. He further submits that the sentence as imposed is also just and proper, so also the compensation as direction to be paid by the accused to the complainant. 8. A careful reading being given to the judgments of the Courts below, it is seen that the Trial Court keeping in view the rival case projected by the parties framed four questions for determination and ultimately analysising the evidence of RW. 8. A careful reading being given to the judgments of the Courts below, it is seen that the Trial Court keeping in view the rival case projected by the parties framed four questions for determination and ultimately analysising the evidence of RW. 1 and D. W. 1 as well as other documentary evidence, since the accused has failed to dislodge the presumption which held the field that he had issued those cheques towards discharge of his liability to the complainant, the finding has been returned in support of the case of the complainant. The appellate Court on reappraisal of evidence and on their evaluation at its level, has concurred with the said finding and confirmed the judgment of conviction and order of sentence as also the compensation impugned in the appeal. 9. It is the settled principle that the revisional Court has its limitation in interfering with the findings of the Courts below and it is only when the findings are seen to be the out come of perverse appreciation of evidence, the interference is warranted to prevent miscarriage of justice but not simply for the reason that on the basis of evidence as laid by the parties another view can be so taken. 10. Keeping in mind the above settled principle, let us now proceed to examine the sustainability of the findings returned by the Courts below within the scope and ambit of the exercise of revisional jurisdiction. 11. The complainant, being examined as P. W.1 has proved his case as to his advancing a sum of Rs. 1,50,000/- as friendly loan to the accused on his promise to return the same within a short period. He has also stated that despite several attempts to get the money refunded by the accused, he could ultimately get two cheques from him covering a sum of Rs. 1,50,000/- (Rs. 75,000/- x 2). The factum of dishonour of the cheques has been proved. The accused being examined as D. W. 1 has denied to have issued any cheque in question in favour of the complainant. His further plea is that he had a savings bank account with Central Bank of India and was issued with the cheque book. 1,50,000/- (Rs. 75,000/- x 2). The factum of dishonour of the cheques has been proved. The accused being examined as D. W. 1 has denied to have issued any cheque in question in favour of the complainant. His further plea is that he had a savings bank account with Central Bank of India and was issued with the cheque book. Since, he had gone out in connection with his employment, he had left the cheques putting his signature, so that in his absence, under his instruction as and when necessary, his family members can fill up the name of the payee, the amount and issue those. On the face of the evidence as above, the preumption first of all arises under section 118(a) of the N.I. Act that these cheques drawn were for consideration and the presumption under section 139 of the N.I. Act next comes to stand that the holder of the cheques received the cheques of the nature referred under Section 138 of the N. I. Act for discharge in whole or part of any debt or any other liability. Merely saying that some blank cheques were left and those have been somehow misutilised, does not suffice the purpose of dislodging the presumption. A meaningful reading of the provisions of N.I. Act particularly section 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless, he adduces the evidence to rebut the presumption that the cheque had been issued for payment of debt or in discharge of liability. If the cheque is duly signed by the drawer, it is immaterial as to whether the cheque has been filed by him or any other person. If a signed cheque has been voluntarily given to the payee towards some payment, the payee may fill up the amount and other particulars and that itself would not invalidate the cheque. Here, as per the defence case, the signed cheque has been given to the family members for utilisation which shows that it was with the authority for being delivered to the payee as and when required and directed. Here, as per the defence case, the signed cheque has been given to the family members for utilisation which shows that it was with the authority for being delivered to the payee as and when required and directed. It is not the case of the accused that the cheque had been parted with under threat or coercion or stolen and as such, that has given to the hands of the complainant, who is an old friend of the accused. 12. On the totality of facts and circumstances and based on evidence on record, the accused is found to have failed to rebut the presumption under section 139 of the N.I. Act either by leading any such acceptable evidence from his side or from any such evidence or circumstances being brought out or coming to surface from the evidence let in by the complainant in showing that there was absence of a legally enforceable debt/liability. In view of the above, the findings of conviction rendered by the Courts below against the accused are not found to be suffering from the vice of perversity and rather the same are well in order. In view of the aforesaid discussion and reasons, the finding of conviction recorded against the accused for commission of offence under Section 138, N.I. Act is confirmed. 13. In so far as order of sentence is concerned, the petitioner has been directed to undergo simple imprisonment for a period of six months. It is pertinent to mention that on 03.11.2013 learned counsel for the accused had apprised the Court as to the willingness of the accused to compound the offence with the complainant. Learned counsel for the opposite party No. 1 however submits that after that order no such progress has been made. He of course submits that the scope for settlement of the dispute giving rise to the case in that light in future is not totally ruled out. It is seen that the accused had issued the cheques in the year 2008 and the complainant was under the expecation that the amount would be so received on presentation of the cheques with his banker which has not materalised. However, in view of the earlier submission from the side of the accused as to pay the amount and compensation, the conduct of the accused does not appear to be in the direction of avoidance of payment. 14. However, in view of the earlier submission from the side of the accused as to pay the amount and compensation, the conduct of the accused does not appear to be in the direction of avoidance of payment. 14. With the above view, I am of the considered opinion that it would meet the ends of justice, if the accused instead of being sentenced to undergo simple imprisonment for a period of six months, is only directed to pay compensation of Rs. 2,50,000/- (Rupees Two Lakh, Fifty Thousand) within a period of three months hence with the default stipulation that on his failure, he would undergo simple imprisonment for a period of six months. 15. The revision is accordingly disposed of with the modification as to order of sentence to the extent as indicated above.