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2019 DIGILAW 594 (ORI)

Bibekananda Dash v. Jyostnamayee Mishra

2019-09-19

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. The petitioner, by filing this revision, has assailed the judgment dated 13.02.2014 passed by the learned 2nd Additional Sessions Judge, Puri in Criminal Appeal No. 2/2 of 12/11. By the said judgment, the appeal filed by the petitioner (accused) questioning the judgment of conviction and order of sentence dated 18.12.2010 passed by the learned J.M.F.C., Puri in I.C.C. Case No. 182/07 (Trial No. 311/10) has been dismissed. The petitioner (accused) has been convicted for committing the offence under Section 138 of the Negotiable Instrument Act (in short, 'the N.I. Act') and has been directed to pay compensation of Rs. 30,000/- (Rupees Thirty thousand only) to the opposite party no. 1 (complainant). 2. The case of the complainant, in short, is that she and the accused, who happens to be the President of Kulamani Handicrafts Cooperative Society were under business relationship. The accused, being the President of the Society, approached the complainant for giving a sum of Rs. 24,700/- so as to overcome certain difficulty and meet some emergent situation. The complainant, in view of the long standing relationship, in good faith, paid the said amount. In order to ensure the repayment of the sum so taken in time, the accused gave two cheques bearing no. 5229 and 5230 worth of Rs. 4700/- each and also the third one bearing no. 5231 worth Rs. 20,000/-. The date put on those cheques was 16.03.2007. On 17.05.2007, the third cheque worth of Rs. 20,000/- being presented by the complainant in her account for collection of the amount covered thereunder, return correspondence came from the Bank that for insufficiency of funds in the account on which the said cheque had been drawn, the exercise collection of the amount through that cheque to the account of the complainant has been in futility. The complainant thereafter served notice in terms of clause (b) of proviso to Section 138 of the N.I. Act by registered post with AD and demanded payment of the money covered under the cheque. No response having come from the side of the accused, the complaint have been lodged. The plea of the defence, as taken in the statement recorded under Section 313 Cr.P.C., is that of denial. In the trial, the complainant has examined herself as P.W. 1. No response having come from the side of the accused, the complaint have been lodged. The plea of the defence, as taken in the statement recorded under Section 313 Cr.P.C., is that of denial. In the trial, the complainant has examined herself as P.W. 1. In support of the defence, the accused himself has come to the witness box and has been examined as D.W. 1. When the last cheque bearing no. 5231 worth Rs. 20,000/- which stood dishonoured, the copy of the notice and postal receipt as well as AD have been proved from the side of the complainant, no such document has been proved from the side of the accused. 3. Learned counsel for the petitioner (accused) submitted 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 she became the holder of the cheque for clearance of her dues payable to the accused. He next submitted that the cheque in question (Ext. 1) although has been issued by this accused under his signature, yet it is on the account of registered cooperative society and said registered cooperative society having not been arraigned as an accused, the complaint ought to have been held to be bad in law and the same ought not to have proceeded against this accused being arraigned as the sole accused. Learned counsel for the opposite party no. 1 (complainant) supported the judgments of the Courts below, convicting the accused for commission of offence under Section 138 of the N.I. Act and directing him to pay compensation. It was his submission that such plea is for the first time being raised in this revision, is not entertainable. He next submitted that the case of the complainant from the very beginning is that she had advanced the money to this accused in his individual capacity and had not given to the registered cooperative society of which the accused was then the President and under the circumstance, issuance of the cheque in the account of that cooperative society of which he was the President, cannot lead to a finding that the money had been lent to the cooperative society and that this petitioner was representing that society in the matter. He thus submitted that when the money has been paid to the accused, who has received it in his individual capacity, it does not matter in whose account he has issued the cheque and that is not necessarily to be taken to have been so given towards the discharge of debt or other liability of the holder of the account wherein the cheque has been drawn. It was his further submission that when the accused admits to have issued the cheque, may be on the account of that cooperative society, it is for him to explain to the society as to how he could issue the cheque on the account of the society in favour of another but that would have of no impact in so far as the debt and liability of the accused towards the complainant is concerned and the criminal liability is squarely attracted towards the accused for dishonor of the said cheque. 4. In order to address the submission, let us have a look at the evidence of the complainant. She has stated that on being approached by the accused, dreaming better future of her son in his business, he paid a sum of Rs. 24,700/- to the accused. He had given two cheques, worth of Rs. 4700/- each, which were honoured on being presented for collection. The third cheque of Rs. 20,000/- stood dishonoured and that is the subject matter of the proceeding. The cheque has been dishonoured for insufficient fund in the account on which it had been drawn The accused, being intimated about the fact, has given the response that the facts stated by the complainant are false. His evidence is that he had issued three cheques to the complainant for Rs. 6700/-, Rs. 2700/- and Rs. 2060/- but he had never issued a cheque of Rs. 20000/- which stood bounced. In the instant case, the cheque is under the signature of the accused who was then the President of the said Co-operative Society and he was thus operating that account of the society. The accused, in his evidence, admits to be having the business relationship and for that the cheque had been issued. It is his evidence that the complainant was to receive a sum of Rs. 2000/- and the demand of cash of Rs. 20,000/- was by adding in Rs. 2000/- and mentioning the same in the given cheque bearing no. The accused, in his evidence, admits to be having the business relationship and for that the cheque had been issued. It is his evidence that the complainant was to receive a sum of Rs. 2000/- and the demand of cash of Rs. 20,000/- was by adding in Rs. 2000/- and mentioning the same in the given cheque bearing no. 5321 by addition of Rs. 20,000/- onwards to harsh him. (Paragraph 3 of evidence in chief of the accused-D.W. 1). He is never saying that the money was due to be paid by the society and that he had given the cheque on behalf of the society to clear the debt and liability of the society towards the complainant. The accused is not saying to have no such business relationship with the complainant in his individual capacity and it was all with that society. He rather states at paragraph-8 of his deposition in chief that the parties had the business relationship. In view of above evidence on record, the submission of learned counsel for the accused that the complainant is bad in law and as such is misconceived basing upon the law laid down a in case of (i) Anneta Hada -V- M/s. Godfather Travels and Tours Private Limited; AIR 2012 SC 2795 ; S.M.S. Pharmaceutical Limited-V- Neeta Bhalla (Appeal (Crl) No. 664 of 2002 decided on 20.09.2005; and Smt. Suja Johnson -V- State of Orissa and another; 2012 (II) OLR 812 fails. On the proven factual setting of the case, the presumption available under Section 118 read with Section 139 of the N.I. Act when squarely gets drawn and the above discussed explanation of the accused is found to be wholly unacceptable to rebut the said statutory presumption, this Court finds no such perversity in the concurrent finding returned by the Courts below against this accused for commission of offence under Section 138 of the N.I. Act. In that view of the matter, the order directing the accused to pay Rs. 30,000/- as compensation to the complainant is held to be well in order. 5. In the result, the revision stands dismissed The accused thus stands convicted for commission of offence under Section 138 of the N.I. Act and he is directed to pay compensation of Rs. In that view of the matter, the order directing the accused to pay Rs. 30,000/- as compensation to the complainant is held to be well in order. 5. In the result, the revision stands dismissed The accused thus stands convicted for commission of offence under Section 138 of the N.I. Act and he is directed to pay compensation of Rs. 30,000/- (Rupees Thirty thousand only) to the complainant within a period of three months hence and in the event of non-payment of the compensation as above within the stipulated period, he would undergo simple imprisonment for a period of three months. The LCR be sent back immediately.