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2022 DIGILAW 206 (TRI)

Manik Lal Das v. Dipankar Majumder

2022-04-19

T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - Heard Mr. T.D. Majumder, learned senior counsel assisted by Mr. J. Bhattacharjee, learned counsel appearing for the petitioner. Also heard Mrs. P. Dhar, learned counsel appearing for the respondent. 2. This petition has been filed under Section-397 read with Section-401 & 482 of the Code of Criminal Procedure Act, 1973 against the judgment dated 11.06.2019 passed by the learned Sessions Judge, Gomati Judicial District, Udaipur in Criminal Appeal No. 25(3) of 2018 for setting aside the conviction for offence under Section-138 of the Negotiable Instrument Act, 1981. 3. Factual backdrop of the case is that the complainant (respondent herein) Sri Dipankar Majumder, Branch Manager, Shriram Transport Finance Company Limited, Udaipur Branch, is engaged in the business of financing both new and used commercial vehicles. On 21.11.2012, the accused-petitioner Sri Manik Lal Das entered into a loan cum hypothecation agreement No- AGRTL0211200012, with Shriram Transport Finance Company Limited, for purchasing one JCB 3DX (Machinery) vide registration No- TR01R0524 on condition to repay the loan in monthly installments. But after paying a few installments the accused did not repay the rest of the loan amount. On 20.02.2016, on being approached by the complainant the accused petitioner issued a cheque bearing No- 686379 dated 20.02.2016, drawn on United Bank of India, Kaman Chowmuhani Branch for an amount of Rs. 22,12,141/-, in favor of the Shriram Transport Finance Company Limited to discharge his liability. The complainant, being the authorized agent of the company deposited the cheque No- 686379 dated 20.02.2016 in the account of the Shriram Transport Finance Company Limited in the State Bank of India, Udaipur Branch for encashment. But the cheque was returned unpaid on 23.02.2016 by the bank with the remark 'Account Closed'. Thereafter, on 14.03.2016, demand notice was served on the accused who received the notice on 17.03.2016 but the accused did not repay the loan of the company. Hence this case under Section 138 of the Negotiable Instruments Act, 1881 was instituted by the complainant on behalf of the company. 4. The accused turned up and contested the case and on being examined under Section 251 of the Cr.P.C. in terms of offence under Section 138 of the Negotiable Instruments Act, 1881, pleaded not guilty and claimed to be tried. In the trial the complainant examined himself as PW. 1 and proved the relevant documents viz. 1) Exhibit. 1 - Original loan-cum-hypothecation agreement. In the trial the complainant examined himself as PW. 1 and proved the relevant documents viz. 1) Exhibit. 1 - Original loan-cum-hypothecation agreement. 2) Exhibit. 2 - Original cheque bearing no 686379. 3) Exhibit. 3 - Original bank endorsement issued by the United Bank of India, Udaipur Branch. 4) Exhibit. 4 - one loan account statement. 5) Exhibit. 5 - Postal AD Card dated 17.03.2016 6) Exhibit. 6 - Postal registration slip. 7) Exhibit. 7 - Original Power of attorney dated 08.12.2016. 5. In his examination under Section-313 of the Cr.P.C. the accused petitioner admitted that he had entered into a loan cum hypothecation agreement with Shriram Transport Finance Company Limited but totally denied the other claims of the complainant. He admitted his signature in the cheque bearing no-686379 issued to the Shriram Transport Finance Company Limited and he also admitted that he did not repay the entire loan amount to the Shriram Transport Finance Company Limited. In support of his defence, the accused petitioner examined himself as the sole witness. No documentary evidences were adduced by the accused petitioner. 6. Thereafter, hearing the argument of both sides the trial court passed the impugned judgment convicting and sentencing the accused-petitioner as under: 'The convict Sri Manik Lal Das is hereby sentenced to pay a fine of Rs. 22,12,141/-,(Rupees twenty two lakh twelve thousand and one hundred and forty one only) and in default, he shall suffer simple imprisonment for a one year. The fine money, if realized shall be paid in full to the complainant as compensation.' 7. Being aggrieved by and dissatisfied with the observation made by both the Courts below, the accused petitioner has preferred this present petition. 8. Mr. T.D. Majumder, learned senior counsel assisted by Mr. J. Bhattacharjee, learned counsel appearing petitioner has submitted that the impugned judgment is both against law and facts of the case. The learned Court below has acted with serious illegalities in exercise of jurisdiction vested in it by law. He has further submitted that the Court below has not exercised his judicious discretion vested in it in accordance with law in passing the impugned judgment and conviction. 9. Further, the Court below has failed to appreciate the well settled principle of law laid down by Apex Court. The Court below has failed to appreciate the cheque No. 686379 dated 20.02.2016 drawn on UBI, Kaman Chowmunai Branch, Agartala amounting to Rs. 9. Further, the Court below has failed to appreciate the well settled principle of law laid down by Apex Court. The Court below has failed to appreciate the cheque No. 686379 dated 20.02.2016 drawn on UBI, Kaman Chowmunai Branch, Agartala amounting to Rs. 22,12,141/- was not issued by the convict petition on 20.02.2016 as the same with signature of the convict and without the figure and date was made available to the complainant company as security for the purpose of ensuring the sanction of loan. Except the said blank cheque, others 35 cheques had been submitted by the convict-petitioner to Shriram Transport Finance Company Ltd. as security. This vital aspect, though put into evidence has not been gone into by the Court below. 10. The Trial Court as well as the Appellate Court failed to appreciate the law that non-receipt of statutory demand notice from the end of the complainant has resulted non-maintainability of the complaint in the eye of law. This proven fact of non-receipt of demand notice has caused failure of justice which is sine-qua-non for maintaining a compliant under Section-138 of the Negotiable Instrument Act. 11. The Court below has failed to appreciate that admittedly the blank cheques were made to submit by the convict-petitioner in the course of their processing loan. Therefore, it cannot be ruled out that the signed blank cheque has been converted into the valuable security and presented for encashment. There are no lawful dues of the convict-petitioner to the company as there is no adjudication whether the machinery was in fact supplied and accepted by the convict-petitioner. 12. In support of his case, Mr. Majumder, learned senior counsel appearing for the petitioner has placed his reliance upon a decision of the Apex Court in Satish and Co. v. S.R. Traders, reported in 1997 6 ALD 195 , wherein the Apex Court has held thus: 'The learned counsel for the appellant contended that the entire approach of the Court below is in error. He elaborated his argument contending that the Court below was wrong in holding that the complainant was incompetent to lodge the complaint. He submitted that the complainant is M/s. Satish and Company and the complaint was filed through its Manager Sri Naresh Kumar. It is stated in the cause title of the complaint that it was filed by M/s. Satish and Company by its Manager. He submitted that the complainant is M/s. Satish and Company and the complaint was filed through its Manager Sri Naresh Kumar. It is stated in the cause title of the complaint that it was filed by M/s. Satish and Company by its Manager. Therefore, the Court below is not right in holding that such a complaint was not made by a competent person. At any rate, he submitted that Ex. P. 1 though filed after one year authorizing the Manager to initiate proceedings either civil or criminal, it cannot be said that the Manager was not competent to file the present complaint. On the other hand, the learned counsel for the respondents submitted that the alleged authorization Ex. P. 1 was not filed along with the complaint but it was filled after one year of the filing of the complaint and as such the fact remains that as on the date of filing of the complaint, no such authorization letter was filed. Therefore, the complaint, as filed on 20-7-1993 itself was not maintainable and filing such authorization if any later, would not cure the legal infirmity. Therefore, he submitted that the Court below is correct in holding that the complaint was not competent and accordingly it has rightly acquitted the accused.' 13. Learned senior counsel appearing for the petitioner has submitted that on the date of institution of the case, the complainant had no authority to lodge the complaint on behalf of Sri Ram Transport Finance Company Limited. He has strenuously argued that the complainant has failed to adduce any evidence to establish that on 02.05.2016 i.e. on the date of institution of the case, the complainant had authority to lodge the complaint on behalf of Sri Ram Transport Finance Company Limited and due to this, the entire proceedings stated on the basis of the complaint lodged by the complainant without such express authorisation, in void. 14. In reply to this, Mrs. P. Dhar, learned counsel appearing for the respondent has submitted that the complainant did not have the written authority to lodge the complaint but the complainant claimed that by virtue of his post, he had an implied authority to lodge the complaint. 15. Sri Ram Finance Company limited is not a person but a corporate entity. P. Dhar, learned counsel appearing for the respondent has submitted that the complainant did not have the written authority to lodge the complaint but the complainant claimed that by virtue of his post, he had an implied authority to lodge the complaint. 15. Sri Ram Finance Company limited is not a person but a corporate entity. Being a corporate entity, the company cannot personally come to the Court for lodging a complaint for violation of the provisions of Section-138 of the NI Act unless it is represented by some human agency. It is also true that the complainant have failed to adduce any documentary evidence to establish that he was authorised by the Finance Company to lodge the complaint it its behalf, but that does not mean that the complainant is an absolute stranger and does not have any authority either express or implied to lodge the complaint. This is because, that Negotiable Instrument Act does not mandate the existence of an express written authorisation for lodging a complaint on behalf of a company or any other legal entity. 16. In fact, no procedure is provided under the NI Act as to in what manner the company is to be represented in preferring a complaint before the Court for violation of the provisions under Section-138 of the NI Act. The Act does not prevent any person not having a written authorisation from a company from lodging the complaint on behalf of a legal entity, as no requirement of written authorization has been provided in the NI Act. So, any person connected with the affairs of the company i.e. its manager, partner of director or any other person authorised by the company can lodge a complaint under Section-138 of the NI Act. 17. In the present case, the complainant, respondent herein lodged the complaint who is the manager in the Udaipur Branch of the Sri Ram Transport Finance Company Limited. By virtue of being the manager of the company and being connected with the affairs of the company, the complainant has implied authority to lodge the complaint on behalf of the company. 18. PW-1 Sri Dipankar Majumder, the complainant, has given his examination-in-chief on affidavit which is the verbatim narrative of his complaint petition and as such for the sake of brevity it is not repeated. 18. PW-1 Sri Dipankar Majumder, the complainant, has given his examination-in-chief on affidavit which is the verbatim narrative of his complaint petition and as such for the sake of brevity it is not repeated. In his cross-examination, he has stated that the agreement with the accused was made with the Branch Manager of Sriram Finance Company and the accused. He admitted that as per para 15 of the agreement all disputes relating to the agreement were to be settled by arbitration and that as per para 15(1), the District Court, West Tripura alone would have jurisdiction to decide the dispute arising out of the contract He has also admitted that he has not submitted any authorization letter by which the appointed lawyer of the company was authorized to issue the legal demand notice. He has further stated that on 24.06.2013 the accused deposited Rs. 50,000/- as part of the repayment of the loan. As per the agreement, an installment of Rs. 35,000/- was to be paid and the loan was to be cleared by 35 installments. He has denied the suggestion that in the post dated cheque they wrote the amount and deposited the same in the bank. 19. DW-1 Sri Manik Lal Das, the accused petitioner, has deposed that he never received any demand notice from Dipankar Majumder. He entered into contract with the complainant for purchasing a second hand dodger and the contract was entered into at Agartala. He further stated that he gave 35 nos. of post dated blank cheques to the company and the company paid Rs. 90 Lakhs directly to the Hindustan Consultation Ltd. being the amount for buying second hand dodger (JCB). When he went to take delivery of the dodger he found that the dodger was not in working condition. There was an Arbitration Clause in the agreement according to which if there was any dispute between him and Sriram Transport Finance Company Ltd. it would referred to the Arbitrator. He has further stated that the complainant is not authorized to file any complaint against him and also that he does not owe any money to the complainant and also that the complainant filed the case by misappropriating the post dated blank cheques issued by him in favour of the complainant. 20. In cross-examination, the DW. He has further stated that the complainant is not authorized to file any complaint against him and also that he does not owe any money to the complainant and also that the complainant filed the case by misappropriating the post dated blank cheques issued by him in favour of the complainant. 20. In cross-examination, the DW. 1 stated that he would pay the loan amount in installments and the number of installments would be decided by the company. He has further stated that he had another case with the Sriram Transport Company in connection with purchase of another second hand vehicle. He volunteered that before the payment of money to Hindustan Consultancy by Sriram Transport Finance Company Limited, he was taken to Manu and was shown the vehicles. At that time the vehicles were in working condition. But after payment of the money to the Hindustan Consultancy by the Sriram Company, the Hindustan Consultancy disassembled the engine and other parts of the vehicles and delivered the vehicles to him at Belonia. At that time the vehicles were not in working condition and there were no engine and other important parts. He informed the police about the defective vehicles delivered to him and the same was entered in the GD. He has not submitted any copy of GD Entry. He did not give any written complaint to the Sriram Company regarding the condition of the vehicles delivered to him. He denied the suggestion that when the Sriram Company asked him to pay the installments he issued the cheque No. 686379 to the Sriram Company. He denied the suggestion that when the cheque was deposited in the bank the bank informed that the account was closed. 21. On the question of jurisdiction of the court to try the case learned counsel for the petitioner raised a point that since the loan cum hypothecation agreement bearing No-AGRTL0211200012, was entered into between the accused petitioner and Shriram Transport Finance Company Limited at Agartala and the cheque was also issued against the account of the accused petitioner maintained in the United Bank of India, Kaman Chowmuhani Branch, Agartala, the trial Court did not have territorial jurisdiction to try the case. 22. In the instant case, the cheque was deposited by the payee in his account maintained in the SBI Udaipur Branch for encashment. 22. In the instant case, the cheque was deposited by the payee in his account maintained in the SBI Udaipur Branch for encashment. Therefore, the trial court being a Court of Judicial Magistrate First Class, situated within Udaipur, has jurisdiction to try this case. Hence, this Court is of the view that the Ld. Trial court has rightly held that the court has jurisdiction to try the case. 23. The other contention of the counsel for the petitioner is that there is an arbitration clause in the agreement which provides that in the event of any dispute between the parties, the matter shall be referred to arbitration to be held at Agartala. Here also I find that the trial court has rightly held that the parties to an agreement cannot by mutual agreement oust the jurisdiction of a criminal court to adjudicate a dispute of criminal nature arising out of the agreement. 24. Also the Ld. Trial court has rightly held that Section 28 of the Indian Contract Act provides that every agreement by which any party thereto is restricted absolutely from enforcing his rights under any contract, or which limits the time within which he may thus enforce his rights; or which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void. 25. As such it is clear that the Clause 15.1 of the agreement which bars the jurisdiction of a criminal court to adjudicate a dispute arising out of the agreement is violative of the Section-28 of the Indian Contract Act and hence it is void. This being so, it is now the settled position of law that an arbitration clause in the agreement cannot result in the ouster of the jurisdiction of a criminal court to adjudicate upon a dispute. 26. This being so, it is now the settled position of law that an arbitration clause in the agreement cannot result in the ouster of the jurisdiction of a criminal court to adjudicate upon a dispute. 26. As regards the question whether the accused committed the offence under Section 138 of the N.I. Act, Section-138 provides 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 of any debt or other liability, is returned by the bank unpaid, either because of the amount of money being insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. 27. As per the prosecution case, the accused petitioner entered into a loan cum hypothecation agreement bearing No-GRTL0211200012, on 21.11.2012, with Shriram Transport Finance Company Limited, for purchasing one JCB 3DX (Machinery) vide registration No- TR-01R-0524. It is the allegation of the complainant that after entering into the agreement, the accused petitioner defaulted in payment of the monthly installments and so, on 20.02.2016, the accused petitioner issued a cheque of Rs. 22,12,141/- (Rupees Twenty Two Lakhs Twelve Thousand One Hundred And Forty one) in favour of the Shriram Transport Finance Company Limited, towards repayment of the outstanding amount of loan. To prove the allegation the complainant has proved the following documents: i) Original loan cum hypothecation agreement (Exhibit. 1) ii) Original cheque bearing no 686379(Exhibit. 2) iii) One loan account statement (Exhibit. 4). 28. Exhibit-1 is the loan cum hypothecation agreement entered between Shriram Transport Finance Company Limited and the accused petitioner Sri Manik Lal Das. It reveals that on 21.11.2012, the accused petitioner Sri Manik Lal Das entered into a loan cum hypothecation agreement bearing No- AGRTL0211200012, with the Shriram Transport Finance Company Limited, for purchasing one JCB 3DX (Machinery) vide registration No- TR01R0524. The execution of the agreement has not been denied by the accused petitioner. 29. Exhibit-2 is the original cheque bearing No- 686379 shows that a cheque of Rs. The execution of the agreement has not been denied by the accused petitioner. 29. Exhibit-2 is the original cheque bearing No- 686379 shows that a cheque of Rs. 22,12,141/-. it was issued by Sri Manik Lal Das in favour of Shriram Transport Finance Company Limited and his signature is written in the cheque. It also reveals that the cheque was issued against the account of the accused petitioner maintained in the United Bank of India, Kaman Chowmuhani Branch, Agartala. 30. The accused petitioner has not denied his signature in the cheque. But he claimed that he had given thirty five post dated cheques as security for the loan taken by him and one of these cheques was misused by the complainant for lodging the instant complaint. Thus, the fact that the cheque was issued by the accused petitioner remains undisputed. On the question whether the cheque was issued by the accused petitioner for discharging a legally enforceable debt, Section-118 (a) of the Negotiable Instruments Act provides that a presumption is attached to every negotiable instrument that it was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated, or transferred for consideration. Section 139 of the N.I. Act, 1881 raises a statutory presumption that the holder of the cheque, unless the contrary is proved, received the cheque for the discharge of any debt or liability. 31. In the case of Bir Singh v. Mukesh Kumar reported in (2018) 2 TLR (SC) 8 it has been held by the Hon'ble Apex Court that 'the presumption contemplated under Section 139 of the Act is a rebuttable presumption. Onus of proving that the cheque was not in discharge of any debt or other liability is on the accused/drawer of the cheque. Fact that the cheque might be post dated does not absolve the drawer of cheque of the penal consequences under Section 148 of the Act. Persons who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of liability. Cheque if duly signed by the drawer, immaterial that the cheque was filled in by any person other than the drawer'. 32. Persons who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of liability. Cheque if duly signed by the drawer, immaterial that the cheque was filled in by any person other than the drawer'. 32. A combined reading of the two provisions shows that a presumption is attached in regard to each and every negotiable instrument that the same was drawn for consideration and was issued for due discharge of liability. But this presumption is rebuttable and the burden lies heavily upon the accused petitioner to rebut this presumption. It also appears that the accused has not been able to substantiate his claim that he had issued 35 nos. of post-dated cheques to the Shriram Transport Finance Company Limited as security for the repayment of the loan taken by him and one of those cheques was misappropriated by the complainant to lodge the complaint against the accused petitioner. He has not adduced and concrete evidence to substantiate this claim of having issued 35 post-dated cheques. 33. Now the penultimate that remains to be decided is whether the accused petitioner committed an offence under Section 138 of the NI Act? Section 138 of the NI Act is an exclusive provision dealing with dishonor of cheques and it comprehensively provides all the essential ingredients which requires to be satisfied before a complaint under this Section can be lodged. Before proceeding further, it will be beneficial to have a quick look at the exact wordings of the above Section. '138: Dishonour of cheque for insufficiency, etc., of funds in the account. Before proceeding further, it will be beneficial to have a quick look at the exact wordings of the above Section. '138: Dishonour of cheque for insufficiency, etc., of funds in the account. 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, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this Section shall apply unless- (a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.' 34. Exihibit-1, which is the loan cum hypothecation agreement entered between Shriram Transport Finance Company Limited and the accused petitioner Sri Manik Lal Das reveals that on 21.11.2012, the accused petitioner Sri Manik Lal Das entered into a loan cum hypothecation agreement bearing No- AGRTL0211200012, with the Shriram Transport Finance Company Limited, for purchasing one JCB 3DX (Machinery) vide registration No- TR01R0524. The creation of this agreement has not been denied by the accused-petitioner. 35. Exhibit-2 which is the original cheque bearing No- 686379 shows that a cheque of Rs. 22,12,141/- was issued by Sri Manik Lal Das in favour of Shriram Transport Finance Company Limited and his signature is inscribed in the cheque. It also reveals that the cheque was issued against the account of the accused petitioner maintained in the United Bank of India, Kaman Chowmuhani Branch, Agartala. 36. The question which now arises for determination is whether the cheque was issued by the accused petitioner for discharging a legally enforceable debt. To find an answer to the above question, the Section 118 and the Section 139 of the NI Act are relevant: 'Section 118 (a) of the Negotiable Instruments Act provides that a presumption is attached to every negotiable instrument that it was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated, or transferred for considerations.' Section 139 of the Negotiable Instruments Act, 1881 raises a statutory presumption that the holder of the cheque, unless the contrary is proved, received the cheque for the discharge in whole or in part of any debt or liability.' 37. A conjoint reading of this two provisions shows that a presumption is attached in regard to each and every negotiable instrument that the same was drawn for consideration and was issued against for due discharge of the liability. But this presumption is rebuttable and the burden of proof lies heavily upon the accused petitioner to rebut this presumption. 38. The essential ingredient which requires to be established is that the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. 39. 39. In his evidence, the complainant, who was examined as (CW-1) has deposed that he had issued the demand notice in respect of the dishonor of the said cheque through his advocate Sri Anjan Debnath on 14.03.16 by registered post and it was received by the wife of the accused petitioner, on behalf of the accused petitioner on 17.03.2016. The Acknowledgment card has been produced by the complainant which has been proved into evidence and the same is marked as Exhibit-5 and the postal registration slip produced by the complainant is marked as marked as Exhibit-6. The Acknowledgment card bears the signature of the wife of the accused petitioner. This shows that the legal notice was received by the wife of the accused petitioner on his behalf and therefore, the accused petitioner is deemed to have received the legal notice sent by the complainant. The accused petitioner has claimed that he did not receive the legal notice issued by the complainant and so the onus of proof lies on him to establish his contention. But accused petitioner completely failed to adduce any evidence in support of his contention that he did not receive the legal notice. Therefore, the plea taken by the accused petitioner that he did not receive the legal notice sent to him is not believable. 40. From the above discussions, it is established cheque No-686379 dated 20/02/2016, for an amount of Rs. 22,12,141/-, was issued by the accused in the account maintained by him with United Bank of India, Kaman Chowmuhani Branch and that the said cheque was dishonored as the account of the accused petitioner was closed. The cheque was issued on 20.02.2016 and the same was presented to the Bank of the same date. So, it can be concluded that the cheque was presented within its validity for encashment. Thereafter, the cheque was dishonored on 23.02.2016. On 14.03.2016, demand notice was sent to the accused petitioner through Ld. Advocate Sri Anjan Debnath and it was received by the accused petitioner on 17.03.2016 but in spite of receiving the demand notice, the accused petitioner did not pay back the loan. So on 02.05.2016 the instant case was registered. Thus all the ingredients of Section 138 of Negotiable Instruments Act, 1881 are satisfied. 41. Advocate Sri Anjan Debnath and it was received by the accused petitioner on 17.03.2016 but in spite of receiving the demand notice, the accused petitioner did not pay back the loan. So on 02.05.2016 the instant case was registered. Thus all the ingredients of Section 138 of Negotiable Instruments Act, 1881 are satisfied. 41. Let me now examine whether it is a fit case for releasing the convict on admonition or probation of good conduct under the Probation of Offender's Act, 1958. While imposing a sentence, it has to be borne in mind the nature of the offence and the manner in which the offence has been committed. The case is a result of breach of commitment on the part of the convict which led to pecuniary loss to the complainant. The convict is matured person and committed the offence intentionally knowing the consequences of such an act. Therefore, considering the above, I am not inclined to grant the convict, the benefit provided in the Probation of Offender's Act, 1958. 42. The entire case runs around the legally enforceable debt. Admittedly, learned senior counsel appearing for the petitioner has not denied with regard to the payment received and the cheque issued and he has not even advanced any evidence with regard to the issuance of post dated cheques. Further, he has not placed any evidence before this Court with regard to the non-compliance of the notice issued by the complainant show that the recipient is a stranger. The complainant being the branch manager of Shriram Transport Finance Company Ltd., filed the complaint as his position as Manager empowered and authorized him to file the same. However, at a later stage the said authorization has also been filed. The argument advanced on the point of arbitration is not applicable in the facts and circumstances of this case since, it governs under the special statute of Central Act under Section-138. Since the point regarding legal enforceable debt has not been demolished by the counsel appearing for the petitioner, this Court has no hesitation to confirm the orders passed by the learned Courts below. 43. Since the point regarding legal enforceable debt has not been demolished by the counsel appearing for the petitioner, this Court has no hesitation to confirm the orders passed by the learned Courts below. 43. The litigation under Section-138 of the NI Act though, it is statutorily technical in nature, the argument advanced on the point of cheque numbers being 686379, but in the legal notice the cheque number being noted as 6863793, it is purely technical in nature, it cannot be considered too technical for the purpose of denying the justice. In order meet the ends of justice; this Court feels that this argument i.e. the cheque numbers were not tallied, carries no weightage. 44. In view of the above discussion, I find that the Ld. Trial court has rightly held the accused Manik Lal Das guilty and convicted him for the offence under Section-138 of the Negotiable Instruments Act, 1881. This Court also finds no infirmity in the decision of Ld. Trial court in so far as it has sentenced the petitioner to pay a fine of Rs. 22,12,141/-, (Rupees twenty two lakh twelve thousand and one hundred and forty one only) and in default to suffer simple imprisonment for one year and that the fine money, if realized shall be paid in full to the complainant as compensation. 45. As the petitioner herein has failed to make out his case before the Courts below, this Court has no hesitation to say that in the revision, appreciation of the factual issues is not permissible. Accordingly, the instant revision petition is dismissed affirming the judgment and order dated 11.06.2019 passed by learned Sessions Judge, Gomati Judicial District, Udaipur, in case No. Criminal Appeal 25(3) of 2018.