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2019 DIGILAW 596 (ORI)

Dillip Kumar Swain v. Anuradha Das

2019-09-19

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. The petitioner, by filing this revision, has assailed the judgment dated 9.3.2011 passed by the learned Ad-hoc Sessions Judge, Fast Track Court No. II, Bhubaneswar in Criminal Appeal No. 3/69 of 2009. By the said said judgment, the appeal filed by the petitioner (accused) questioning the judgment of conviction and order of sentence dated 17.8.2009 passed by the learned J.M.F.C., Bhubaneswar in I.C.C. Case No. 1545 of 2006 (Trial No. 215/2009) has been dismissed. The petitioner (accused) has been convicted under section 138 of the Negotiable Instrument Act (in short, 'the N.I. Act') and sentenced to undergo simple imprisonment for a period of one year and pay compensation of Rs. 7,00,000/- (rupees seven lakhs only) for onward payment to the opposite party (complainant) in terms of section 357(3) of the Code of Criminal Procedure. 2. Facts of the case of the complainant is that accused Jayanta Kumar Mohanty came and represented before the complainant to have been engaged in real estate business. Then after discussion, he entered into an agreement with the complainant for development of her land. She then executed a deed of power of attorney appointing said accused Jayanta Kumar Mohanty for development and sale of the land. It is stated that in order to discharge the liability, accused Jayanta Kumar Mohanty issued a cheque worth Rs. 6,00,000/- in favour of the complainant. That cheque being presented by the complainant in the Bank for collection of the amount in her account, bounced back and stood dishonoured. This fact being communicated by the complainant to accused Jayanta Kumar Mohanty, he requested to return the cheque. Accepting his request, that cheque was returned to him. Accused Jayanta Kumar Mohanty then gave another cheque being No. 635283 dated 22.12.2005 drawn on State Bank of India worth Rs. 6,30,000/- Said cheque had been issued by this accused Dillip Kumar Swain (petitioner of this revision) under his signature. The complainant then deposited the said cheque in the Bank for obtaining the money covered. Surprisingly, in the account of accused Dillip Kumar Swain, the funds available was insufficient to meet the demand covered under the cheque. So, there was no collection of money and the cheque was returned as dishonoured. The complainant then deposited the said cheque in the Bank for obtaining the money covered. Surprisingly, in the account of accused Dillip Kumar Swain, the funds available was insufficient to meet the demand covered under the cheque. So, there was no collection of money and the cheque was returned as dishonoured. The complainant then sent notice to Jayanta Kumar Mohanty and this accused Dillip Kumar Swain by registered post with AD intimating them the fact that the cheque issued by accused Dillip Kumar Swain has been dishonoured and demanding payment of said amount. No response being received from any quarter, the complaint has been lodged alleging commission of offence under section 138 of the N.I. Act by both accused persons, i.e., Jayanta Kumar Mohanty and this accused Dillip Kumar Swain. The plea of the accused persons is that of complete denial and false implication. 3. From the side of the complainant, three witnesses have been examined. This accused Dillip Kumar Swain has examined himself as D.W. 1. The complainant when has proved the cheque in question and other connected documents as regards its dishonour, the copy of the demand notice as well as the postal receipt etc; from the side of this accused Dillip Kumar Swain, his evidence affidavit and the signature thereon have been unnecessarily marked as Ext. A and Ext. A/1 respectively even though the same is part of evidence. 4. The trial court, upon analysis of evidence, has acquitted Jayanta Kumar Mohanty. However, this accused Dillip Kumar Swain has been held guilty of commission of offence under section 138 of the N.I. Act and accordingly, he has been sentenced and directed to pay compensation as aforestated. 5. Learned counsel for the petitioner (accused-Dillip Kumar Swain) attacked the finding of guilt of the accused Dillip Kumar Swain, raising contentions that the evidence on record being wholly insufficient to establish that said cheque (Ext. 1) had been issued by this accused Dillip Kumar Swain in favour of the complainant for discharge of any of his debt or liability subsisting as on that date towards the complainant, the courts below have seriously erred both on fact and law in holding the case of the complainant to have been proved in ultimately concluding that this accused Dillip Kumar Swain has thereby committed the offence under section 138 of the N.I. Act. He next submitted that the result returned by the courts below being perverse, this revisional court should interfere with the same so as to prevent miscarriage of justice. Learned counsel for the petitioner cited the following decisions in support of his contentions. "(i) Kundan Lal Rallaram v. Custodian, Evacuee Property; AIR 1961 SC 1316 ; (ii) K.J. Bhat v. D.G. Hegde; 2008 (39) OCR (SC) 578; (iii) Rangappa v. Mohan; 2010 AIR SCW 2946; (iv) Kumar Exports v. Sharma Carpets; (2009) 2 SCC 513 ; (v) John K. Abraham v. Simon C. Abraham and another; (2014) 2 SCC 236 ; and (vi) R.M. Marykutty v. R.C. Kottaram and another; (2013) 1 SCC 327 " 6. Learned counsel for the opposite party (complainant) submitted all in favour of the judgments of the courts below holding the accused Dillip Kumar Swain as guilty for commission of offence under section 138 of the N.I. Act for the dishonour of the cheque issued by him in favour of the complainant for discharge of the debt and liability. It is his submission that in terms of the provision of section 138 of the N.I. Act, it is not always necessary that a person issuing the cheque must owe the debt and liability towards the complainant standing for being discharged at the time of issuance of cheque. 7. Provision of section 138 of the N.I. Act says that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, for the reasons stated therein, an offence is committed by the person who has drawn that cheque. The provision is very clear that such issuance of cheque need not be necessarily for the discharge, in whole or in part of the debt or other liability of the drawer of the cheque standing for payment to the holder of the cheque. So, a person issuing such cheque for discharge, in whole or in part of any debt or liability of another, also falls within the ambit of commission of offence under section 138 of the N.I. Act in the event said cheque stands dishonoured and finally, the demand thereunder is not met. So, a person issuing such cheque for discharge, in whole or in part of any debt or liability of another, also falls within the ambit of commission of offence under section 138 of the N.I. Act in the event said cheque stands dishonoured and finally, the demand thereunder is not met. Adverting to the complaint's case in hand, it is seen that being the owner of the land, she had entered into an agreement with Jayanta Kumar Mohanty (since acquitted), who was the Managing Director of Bayasha Properties Private Limited having been engaged in real estate business. He had taken a power of attorney from the complainant to sell her land after development at the agreed consideration. He has issued a cheque of Rs. 6,00,000/- and that was towards full and final settlement of the consideration value for the sale of the total land and then he had sold the land by virtue of such power of attorney. This cheque, first of all, stood dishonoured in view of the closure of the account. So Jayanta Kumar Mohanty requested the complainant to return the said cheque and on receiving it, in turn, gave the cheque drawn by this accused Dillip Kumar Swain under his signature in his bank account which is the subject matter of the proceeding. 8. Receipt of this cheque (Ext. 1) in question, in course of the very transaction by the complainant being handed over by Jayanta Kumar Mohanty is established through Ext. 2. Accused Dillip Kumar Swain has expressed total ignorance about the transaction and he has denied to have ever issued any cheque in favour of the complainant. The cheque (Ext. 1) seems to have been issued in favour of the complainant for the amount, as has been written therein. As per his evidence, he was not a total foreigner to the real estate business of said Bayasha Properties Private Limited but had been engaged for measurement and preparation of sketch map of the lands. He has stated that Jayanta Kumar Mohanty demanded a blank cheque from him for purchase of land and although, he was not willing to hand over any blank cheque, being convinced that he will fill up the entire cheque after settlement of the land value with the land owner, which he was intending to purchase, he had so given. He has stated that Jayanta Kumar Mohanty demanded a blank cheque from him for purchase of land and although, he was not willing to hand over any blank cheque, being convinced that he will fill up the entire cheque after settlement of the land value with the land owner, which he was intending to purchase, he had so given. It is his next statement that said cheque is found to have been later on misutilized. That part of the evidence, being very interesting, is quoted herein below: "3. That during the course of my engagement, Jayanta Kumar Mohanty being one of the employee of M/s. Bayasha Properties Private Limited, developed a relationship with me and thereby he induced me to purchase of land in Daruthenga mouza for consideration amount of Rs. 2,00,000/- and accordingly, I agreed with his proposal; and 4. That in the year 2005, Jayanta Kumar Mohanty demanded a blank cheque from me for the purchase of the said land and although I was not willing to handover any blank cheque, but he convinced me that he will fill up the entire cheque after settlement of land value with the land owner which I was intending to purchase." So, this accused Dillip Kumar Swain is not saying to have not given any cheque to the complainant by drawing it on his account for being paid to the complainant. The explanation given by this accused Dillip Kumar Swain, as already stated, is per se not acceptable. The complainant thus, in the present case, is a holder of the cheque in due course. Provision of section 118 of the N.I. Act says that until the contrary is proved in so far as the consideration of the establishment of the negotiable instrument is concerned, presumption stands that every negotiable instrument was made or drawn for consideration and that such instrument when has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration. Here, the complainant not being the direct holder of the cheque, the presumption as the transferee is available in his favour. Here, the complainant not being the direct holder of the cheque, the presumption as the transferee is available in his favour. Next coming to the provisions of section 139 of the N.I. Act as to the presumption in favour of the holder, it reads that the holder of cheque of the nature, referring to section 138 of the N.I. Act has so received it for the discharge, in whole or in part of any debt or other liability. This stands in favour of the case of the complainant as, this presumption does not stand confined to the discharge in whole or in part of any debt or other liability of the person, who has issued the cheque towards the ultimate holder of the cheque. So, in the present case, the submission of the learned counsel for the accused that the complainant having not proved the cheque to have been issued by the accused in her favour towards discharge either whole or in part of any debt or liability against her, the complaint against the accused is misconceived, is of no significance to say that the provision of section 138 of the N.I. Act, in the present case, does not get attracted in so far as accused Dillip is concerned. Having carefully read the cited decisions as noted at paragraph-5, the principles of law as settled therein, in my considered view, in the facts and circumstances of the case in hand; not come to the aid of this accused-Dillip. The accused having admitted to have given the blank cheque signed by him to that Jayanta Kumar Mohanty, and then having failed to offer any acceptable explanation through his conduct some time after the issuance of cheques or thereafter having come to know about the cheque being so used by Jayanta through the notice, in my considered view, under the proven facts and circumstances, is squarely liable for commission of the offence under section 138 of the N.I. Act. Next coming to the order of sentence and award of compensation, taking into account the fact that the cheque in question had not been directly issued by this accused Dillip to the complainant for discharge of his debt or other liability towards the complainant, while being inclined to set aside the order of sentence of simple imprisonment for a period of one year, as has been directed by the courts below, to be undergone by this accused Dillip Kumar Swain; the order for payment of compensation of Rs. 7,00,000/- (rupees seven lakhs only) by this accused to the complainant is confirmed with further direction that if the same is not paid by this accused Dillip Kumar Swain within a period of three months hence, he would undergo simple imprisonment for a period of six months. The amount lying in deposit in connection, in connection with this case, with the Registry of this Court together with the accrued interest and that lying in deposit with Registrar, Civil Courts, Khurda at Bhubaneswar together with the accrued interest be adjusted towards the compensation as awarded. The said amount be released in favour of the complainant after observance of all the required formalities and this accused Dillip Kumar Swain is directed to cooperate with the same as and when so required. The accused Dillip Kumar Swain would pay the remaining part of the compensation to the complainant within a period of three months, hence failing which the default stipulation as aforesaid would have its play. The CRLREV is disposed of accordingly. The LCR be sent back immediately.