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2023 DIGILAW 651 (CHH)

Shailandra Kumar Tandi S/o Nityanand Tandi v. Mangal Ram S/o Jivdhan

2023-12-01

SANJAY KUMAR JAISWAL

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JUDGMENT : 1. By this acquittal appeal, appellant/complainant has challenged the legality and propriety of judgment of acquittal dated 12.08.2011 passed by the Judicial Magistrate First Class, Durg, Chhattisgarh in Complaint Case No.221 of 2011, whereby the trial Court has acquitted the respondent of the charge punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act”). 2. Undisputed fact of the case, is that, the parties were known to each other and cheque in question (Ex.P/1) bears signature of accused. 3. Brief facts of the case, are that, accused wanted money for marriage of his daughter and on his demand, complainant Shailendra Kumar Tandi gave him Rs.63,000/- (Sixty-three thousand rupees). Accused Mangal Ram was about to take voluntary retirement and promised to pay amount thereafter. Accused given a cheque of Rs. 63,000/-(hereinafter referred to as “cheque in question”) to the complainant on 28.02.2004, which he deposited in his UCO Bank account, Civic Centre, Bhilai, Durg on 06.03.2004. Then, on 06/03/2004, memo vide Ex.P/3 was received from bank to the effect that amount could not be paid due to shortage of funds, upon which, he sent a notice to accused by registered post within the stipulated time through his Advocate, but he did not give any reply as also did not make any payment on time. Thereafter, he filed a complaint case before the trial Court on 22.04.2004. 4. Complainant Shailendra Kumar Tandi was himself examined before the trial court. The statement of accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), in which, he denied the circumstances appearing against him and pleaded innocence and false implication in the case. He further stated that complainant took his signature on a blank cheque with the promise of getting him loan, but no loan was given to him and complainant taken a cheque for his commission. In order to prove his defence, he has examined Lal Singh Mandavi (DW-1), Clerk of Punjab National Bank, Branch Civic Centre, Bhilai, where accused had an account, who stated in reference to Ex.D/1 & Ex.D/2 that accused has requested the branch to stop payments of total 6 cheques vide Ex.D/1 (dated 07.07.2003), which also contained cheque in question. 5. In order to prove his defence, he has examined Lal Singh Mandavi (DW-1), Clerk of Punjab National Bank, Branch Civic Centre, Bhilai, where accused had an account, who stated in reference to Ex.D/1 & Ex.D/2 that accused has requested the branch to stop payments of total 6 cheques vide Ex.D/1 (dated 07.07.2003), which also contained cheque in question. 5. After considering the facts and circumstances of the case as well as after hearing both the parties, learned trial Court vide judgment dated 12.08.2011, acquitted the accused for the charge levelled against him under Section 138 of the N.I. Act by holding that complainant had only received a blank cheque from accused and complainant has failed to authenticate the remaining entries in cheque except the signature. 6. Learned counsel for the appellant/complainant would submit that issuance of cheque signed by accused has been accepted. In this situation, a presumption is created in his favor under Sections 118 and 139 of the N.I. Act and accused has failed to rebut said presumption. Hence, it will be considered that cheque signed by accused in his name has been issued only for full or partial payment of debt enforceable by law. He would further submit that conclusion of trial Court for acquitting the accused is not justified. In these circumstances, appeal be allowed, judgment of acquittal be set aside and accused be convicted and punished. Reliance has been placed upon the verdict rendered by Hon’ble Supreme Court in case of Kalamani Tex and Another v. P. Balasubramanian, (2021) 5 SCC 283 to buttress his submissions. 7. No one has appeared on behalf of respondent to argue the case. 8. I have heard learned counsel for the appellant/complainant and perused the record with utmost circumspection. 9. Complainant Shailendra Kumar Tandi has presented a cheque in question (Ex.P/1) before the Court, which was given by accused. The memorandum of bank regarding cheque being returned without payment has been presented vide Ex.P/3. The acknowledgment letter of receipt of notice sent to accused has been annexed as Ex.P/2. 9. Complainant Shailendra Kumar Tandi has presented a cheque in question (Ex.P/1) before the Court, which was given by accused. The memorandum of bank regarding cheque being returned without payment has been presented vide Ex.P/3. The acknowledgment letter of receipt of notice sent to accused has been annexed as Ex.P/2. The fact remains that complainant has not produced a copy of notice, which he was sent to accused through registered post demanding the amount and which is mandatory under Section 138(b) of the N.I. Act, from the service of which, payment of cheque amount is demanded within 15 days and non-payment gives rise to filing of a complaint under Section 142(1)(b) and Section 138(c) of the N.I. Act. 10. Defence witness Lal Singh Mandavi (DW-1), Clerk of Punjab National Bank, Branch Civic Centre, Bhilai, Durg has presented the account details of accused vide Ex.D/2. Accused Mangal Ram has submitted the application vide Ex.D/1 regarding stoppage of payment of cheques. It is clear from his evidence that accused Mangal Ram had requested his bank to stop the payment of cheque in question. It is noteworthy that this request was madev vide Ex.D/1 on 07.07.2003, whereas cheque in question is dated 28.02.2004. According to memo of bank (Ex.P/3), payment of cheque in question has been stopped on the basis of insufficient funds in the account. 11. Complainant Shailendra Kumar Tandi has admitted in his cross-examination that he cannot tell who has filled the cheque (Ex.P/1), but when accused brought it, it was filled. He has denied suggestion of defence that he might have taken three blank cheques from accused, but he has admitted that after 12.09.2006, on the complaint of police that he had received blank cheques from accused, he was called, made to sit all night and made signature on 3-4 blank papers. 12. Since the signature of accused on cheque in question is accepted, it would be appropriate to consider the legal presumption, regarding which, Section 118 of the Negotiable Instruments Act, 1881 reads as follows:- “118. 12. Since the signature of accused on cheque in question is accepted, it would be appropriate to consider the legal presumption, regarding which, Section 118 of the Negotiable Instruments Act, 1881 reads as follows:- “118. Presumptions as to negotiable instruments.– Until the contrary is proved, the following presumptions shall be made :- (a) of consideration – that every negotiable instrument 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 consideration; (b) as to date – that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance – that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer – that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps– that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course– that the holder of a negotiable instrument is a holder in due course; provided that; where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.” 13. Similarly, presumption in favour of the holder of a cheque under Section 139 of the Negotiable Instruments Act, 1881 is as follows:- “139. Presumption in favour of holder. - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” 14. Presumption in favour of holder. - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” 14. In the light of above legal concept, the case law relied upon by learned counsel for the appellant in case of Kalamani Tex (supra), if the cheque is signed and issued, then presumption under Sections 118 and 139 of N.I. Act will be in favour of complainant unless it is rebutted. It should not be done in the case at hand. 15. The noteworthy fact in the case at hand that complainant himself has admitted that on the complaint regarding blank cheque of accused Mangal Ram, police had kept him sitting in police station overnight and also made signature on 3-4 blank papers. If the complaint against him was false and he was kept in police station overnight, then complainant should have taken action against him, but it does not appear that he took action. Therefore, considering the defence of accused, serious doubt arises against the complainant. 16. According to defence of accused in paragraph-5 of his cross-examination, complainant has admitted that accused had taken loan from the bank, then he helped the accused Mangal Ram in opening the account in Union Bank, Sector-6 and United Bank, Sector-6. Accused has also stated that complainant Shailendra Kumar Tandi had taken blank cheques as commission in the name of getting him loan. Complainant himself has admitted that he helped the accused in opening an account in the bank in the name of getting loan. In such a situation, defence given by accused cannot be completely ignored because it is clear from cheque in question (Ex.P/1) that except the signature, other entries in it are not in the handwriting of accused. It is also reflected from evidence and documents of both the parties that accused had requested to stop the payment of total 06 cheques in his account in Punjab National Bank, Branch Civic Centre, Bhilai on 07.07.2003 itself vide Ex.D/1, in which, serial number of cheque in question i.e. 254915 is also mentioned. It is noteworthy that cheque in question dated 28.02.2004 is stated to have been issued much after the application (Ex.D/1) was given to the bank. 17. It is noteworthy that cheque in question dated 28.02.2004 is stated to have been issued much after the application (Ex.D/1) was given to the bank. 17. From the above, it appears that even before cheque was issued the accused had requested the bank to stop the payment, which seems unnatural. Therefore, defence of accused Mangal Ram that he has not written the cheque on 28.02.2004. In view of above contradictory position of documents, presumption in favour of complainant become rebutted. 18. It is also significant that complainant Shailendra Kumar Tandi has admitted in his cross-examination that a civil case has been filed against the accused in the Court of First Civil Judge, Class II regarding recovery of Rs.15,000/-. He has also admitted that he had to write an agreement from accused Mangal Ram regarding the said amount. In such a situation, when the complainant has not clarified what was the said transaction, then entire evidence reflects that apart from the cheque in question, complainant has taken the same action against the accused Mangal Ram in respect of other amounts. 19. In the light of cheque in question issued on 28.02.2004 and date reflected in Ex.D/1, which is the letter given by accused to his bank for non-payment of cheques, the presumption in favour of complainant become rebutted because it is clear from the documents that apart from the signatures, no entries have been made in it neither by accused nor on the dates mentioned on it. In the above situation, the allegations made by the complainant are rebutted. 20. According to the provisions of Sections 138(b), 138(c) and 142(b) of the N.I. Act, it is mandatory that within 30 days of dishonour of cheque, a legal notice should be sent to accused and demand for the amount should be made and if the cheque amount is not paid by accused to complainant within 15 days of receipt of that notice, then a cause of action arises and it is necessary to present the complaint before the Court within one month of emergence of that cause of action. 21. In the case at hand, complainant has not clearly mentioned in his complaint as to when he sent a legal notice to accused after receiving memo (Ex.P/3) dated 06/03/2004 regarding information about dishonour of cheque. He has not even produced any copy of notice. 21. In the case at hand, complainant has not clearly mentioned in his complaint as to when he sent a legal notice to accused after receiving memo (Ex.P/3) dated 06/03/2004 regarding information about dishonour of cheque. He has not even produced any copy of notice. The complainant has not even submitted any registry receipt for sending notice and he has only submitted receipt acknowledgment vide Ex.P/2. But it is not clear whether notice is regarding cheque amount only in absence of producing a copy of notice. 22. In this regard, accused has asked important questions to complainant during cross-examination. The complainant has admitted in para-4 of cross-examination that he has sent notice in relation to demand of Rs.15,000/-. He has clearly admitted that he has not sent any notice to accused in respect of cheque in question. In para-5, he has admitted that a case is pending before the Civil Court regarding amount of Rs.15,000/-, for which, he has sent a notice, whereas cheque in question is Rs.63,000/-. Thus, it has become clear from the evidence of complainant himself that complainant has not sent a notice to accused regarding cheque No.254915, amounting to Rs.63,000/- and has not demanded the amount,which is mandatory under Section 138(b) of the N.I. Act. As per provisions of Section 142(1)(b) and 142(1)(c), if the cheque amount is not paid within 15 days from the receipt of that notice, a cause of action arises and the complaint can be filed before the Court within one month from that date. Thus, notice has not been sent by complainant to accused regarding cheque in question. Therefore, no cause of action has arisen in favour of complainant regarding dishonour of cheque in question, hence, calculation of dates has not been possible. At this stage, complainant has failed to establish the case against the accused. 23. From the above discussions, this Court finds that presumption in favour of complainant has been rebutted by accused. As per mandatory provisions of N.I. Act, notice regarding demand for cheque in question has not been sent by complainant to accused. Therefore, no cause of action has arisen in favour of complainant and against accused regarding offence of dishonour of cheque in question. In the given situation, case of complainant is not found proved and as such, there is no need to interfere with the judgment of acquittal passed by the trial Court. 24. Therefore, no cause of action has arisen in favour of complainant and against accused regarding offence of dishonour of cheque in question. In the given situation, case of complainant is not found proved and as such, there is no need to interfere with the judgment of acquittal passed by the trial Court. 24. After perusal of the record of the trial Court as well as considering the provisions of the N.I. Act and above judicial precedent, this Court does not find any good ground to interfere with the judgment of acquittal. 25. In the result, instant acquittal appeal lacks merit, is liable to be and is hereby dismissed. 26. Record of the trial Court be sent back along with a copy of this judgment forthwith for information and necessary compliance.