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2019 DIGILAW 589 (ORI)

Debabrata Nayak v. State of Orissa

2019-09-17

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. This revision has been directed against the judgment dated 05.02.2009 passed by the learned Ad-hoc Additional Sessions Judge, (Fast Track Court No. II), Bhubaneswar in Criminal Appeal No. 16/18 of 2009. By the said judgment in the appeal; the judgment of conviction and order of sentence dated 05.02.2009 passed by the learned J.M.F.C., Bhubaneswar in ICC Case No. 2333 of 2006 have been confirmed. The petitioner (accused) has been convicted for commission of offence under Section 138 of the Negotiable Instrument Act (in short, 'the N.I. Act') and directed to undergo simple Imprisonment for a period of two years and pay compensation of Rs. 11.50 lakhs to the opposite party no. 2 (complainant). 2. Prosecution case, in short, is that the complainant was carrying on the hospitality business under the name and style of M/s. Destination of Orissa. The accused was then having business in medicine under the name and style M/s. Zen Pharmaceuticals. Shops of these parties were situating in the same premises and they had family relationship. The accused being a friend of the complainant and in view of his difficulty and faced hardship, he had requested the complainant to arrange a sum of Rs. 8,00 lakhs to meet his immediate needs. It was then assured that the said amount would be paid back within a period of two months. Accordingly, the complainant arranged a loan of Rs. 8.00 lakhs for the accused and paid to him on 16.03.2005. The accused then issued two cheques worth Rs. 2.50 lakhs and Rs. 1.50 lakhs drawn on HDFC Bank. These two cheques being presented stood dishonoured. When the same was brought to the notice of the accused, he requested for time and again on 04.01.2006 issued another cheque drawn on Bank of Baroda PBB, Nayapalli, Bhubaneswar for a sum of Rs. 50 lakhs in favour of M/s. Destination Orissa. The said cheque also stood dishonoured. So, the accused issued two cheques in favour for a sum of Rs. 4.00 lakhs and Rs. 3.25 lakhs drawn on State Bank of Hyderabad. These cheques being presented for payment; those also stood dishonoured due to insufficient funds, When the accused was intimated about this, he asked for some time and after persuasion, he issued another cheque on 10.07.2006 drawn on Union of India, Nayapalli, Bhubaneswar for sum of Rs. 4.00 lakhs and Rs. 3.25 lakhs drawn on State Bank of Hyderabad. These cheques being presented for payment; those also stood dishonoured due to insufficient funds, When the accused was intimated about this, he asked for some time and after persuasion, he issued another cheque on 10.07.2006 drawn on Union of India, Nayapalli, Bhubaneswar for sum of Rs. 8.00 lakhs for discharge of his liability towards the complainant. The cheque being presented for collection of the amount covered under it, also bounced back and dishonoured for the reason of insufficient funds in the account on which the cheques had been drawn. Receiving the intimation from the bank, the complainant served a notice upon the accused on 08.08.2006 and demanded the money covered under it. No response having come from the side of the accused, the complaint has been lodged. The plea of the defence, as taken in the statement recorded under Section 313 Cr.P.C., is that of denial. 3. In the trial, the prosecution besides proving the documentary evidence has examined P.W. 1 whereas accused has examined himself as D.W. 1, the Branch Manager of Union Bank of India as D.W. 2 and Assistant Manager of ICICI Bank as D W. 3. The trial Court on examining the evidence and upon their evaluation has rendered a finding that the accused has committed an offence under Section 138, N.I. Act as the cheque worth of Rs. 8.00 lakhs given by him for discharge of his debt and liability towards the complainant has been dishonoured Having said so, the accused has been convicted and directed to pay the compensation to the complainant as already stated at the foregoing para one. 4. Learned counsel for the petitioner (accused)submits that the courts below have grossly erred both on fact and law in holding that this accused, in order to discharge his debt or liability, had issued the cheque in question in favour of the complainant and that he became the holder of the cheque for clearance of his dues payable to the accused. Learned counsel for the petitioner (accused)submits that the courts below have grossly erred both on fact and law in holding that this accused, in order to discharge his debt or liability, had issued the cheque in question in favour of the complainant and that he became the holder of the cheque for clearance of his dues payable to the accused. He next submitted that the cheque in question although had been issued by this accused under his signature, except the complainant, no one has been examined from the side of the complainant to substantiate the case that it was for discharge of debt and liability towards the complainant and, therefore, the solitary testimony of the complainant ought not to have been accepted by the courts below and for that the finding of conviction is to be held as the outcome of perverse appreciation of evidence. In view of that, he contends that the findings of the courts below that the complainant has established his case beyond reasonable doubt is perverse and liable to be set aside. Alternatively, it is submitted that in case the finding of conviction is confirmed by repelling the submission as above advanced, keeping in view the poor financial condition of the accused, who has no fixed income and is running his family with much difficulty, the custodial sentence be set aside and compensation as deemed just and proper be directed to be paid within a reasonable time frame. Learned counsel for the complainant supports the judgments of the courts below, convicting the accused for commission of offence under Section 138 of the N.I. Act, He submits that the complainant had helped the accused during his bad time by extending financial help to the accused and in order to square up his debt and liability, had given the cheque in question, which stood dishonoured for which the complaint has been lodged as the demand was not met. He submits that based on the evidence on record, as the presumption under Section 118 read with section 139 of the N.I. Act squarely gets down, in the absence of any evidence standing to rebut the same, the criminal liability stands attracted towards the accused for dishonour of the said cheque, he however/submits that in this case the conduct of the accused has been totally unfair as would be evident from the evidence and the complainant having gone to help the accused, there has been totally betrayal of faith and he has been forced to run after the litigation and is deprived of utilizing his money for all these period and, therefore, the compensation as has been directed to be paid is just and proper. 5. In order to address the submission, let us have a look at the evidence of the complainant. He has stated that on the request of the accused, he provided financial help of Rs. 8,00 lakhs for his medicine distributorship business. It is his further evidence that at the time of taking the loan, the accused has promised to repay the same within two months and when he failed to pay back the said amount as assured, the accused on 25.10.2005 under much persuasion issued two cheques worth Rs. 2.50 lakhs (Ext. 1) and Rs. 1.50 lakhs (Ext. 2) respectively When the said cheques were presented for collection on 26.10.2005, the same were dishonoured for insufficiency of funds (Exts. 3 and 4). It being brought to the notice of the accused, he sought for some time to repay the same Thereafter again the accused gave a cheque worth Rs. 3.50 lakhs in favour of the business organization of the complainant, which also stood dishonoured due to insufficiency of funds: The signatures of the accused have been proved and exhibited in evidence. Again the accused issued two cheques vide Exts. 7 and 8 worth Rs. 7,25,000/- in favour of the organization of the complainant, which were also dishonoured for lack of funds, It is his further evidence that when it was informed to the accused, he requested the complainant to give four months time to repay the entire amount to clear up his entire debt and liability and then issued a cheque of Rs. 8.00 lakhs on 10.07.2006 (Ext. 9). The same being presented for collection on 20.07.2006, it also bounced back for want of fund. 8.00 lakhs on 10.07.2006 (Ext. 9). The same being presented for collection on 20.07.2006, it also bounced back for want of fund. In view of the above evidence on record, as nothing surfaces in the evidence to entertain any such doubt as to the facts stated and when in the very petition filed under Section 205 Cr.P.C., the accused had admitted his liability towards the complainant expressing his non-fulfilment of the assurance to pay back for some compelling reasons beyond his control, the courts below are found to have committed no error in convicting accused for commission of offence under Section 138 of the N.I. Act that too on the face of the presumption under Section 118 read with section 139 of the N.I. Act when squarely gets drawn and goes wholly unrebutted. 6. In the result, while confirming the finding of conviction, in the facts and circumstances and taking into account the submission made, the revision stands disposed of by setting aside the order of sentence of imprisonment for a period of two years by fixing the quantum of compensation at Rs. 10,00,000/- (Rupees ten lakhs only) to be paid by the petitioner (accused) to the opposite party no 2 (complainant) within a period of three months hence failing which the petitioner would undergo simple imprisonment for a period of eight months. It is, however, observed that in the event any amount has been deposited in the courts below in connection with the case, the same together with the accrued interest, if any, be released in favour of the opposite party no. 2 (complainant) and the same be excluded from the total compensation as awarded and the remaining part of the compensation be paid by the accused to the complainant within the time as above fixed failing which the default would stipulation would come to have its play. The LCR be sent back immediately.