Dismissed

Shankar Singh v. The State Of Jharkhand And Anr.

Jharkhand HC14 Aug 2024Cr.Rev./541/2016

Case brief

AI extract

What is this about?

Criminal revision against conviction under Section 138 NI Act for dishonour of a Rs.1,50,000 cheque issued towards a friendly loan. The court held that presumption under Section 139 arose and service of notice was presumed under Section 27 General Clauses Act read with Section 114(f) Evidence Act; revision dismissed and conviction affirmed.

What the court decided

AI extract

Shankar Singh Vs The State Of Jharkhand And Anr. — Cheque Dishonour | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 541 of 2016

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Shankar Singh, son of Late Sarju Singh, R/O-Mandal Tola Near Post Office Chalkari Peterbar, P.O.& P.S. Tenughat, District- Bokaro.

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.... …. Petitioner

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Versus

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The State of Jharkhand.

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Ashok Samanta, son of Late Birjapada Samanta, R/OMakoli Qrt. No. 1301, P.O.-Makoli, P.S.- Chandrapura, District-Bokaro.

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…. .... Opp. Parties

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Coram: HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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-----For the Petitioner : Mr. Mahavir Pd. Sinha, Advocate. Mr. Santosh Kumar Jha, Advocate. For the State : Mr. Praful Jojo, A.P.P. For the O.P. No. 2 : Mr. Atanu Banerjee, Advocate. Ms. Sugandha Khalkho, Advocate.

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JUDGMENT

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CAV On Dated- 16.05.2024 Pronounced On- 14.08.2024

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Heard learned counsel for the parties.

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2. The instant criminal revision is directed against the judgment dated 22.05.2015 passed by learned Additional Sessions Judge-III, Bermo at Tenughat, Bokaro in Criminal Appeal No. 04 of 2014, whereby and whereunder the appellate court has partly allowed the appeal and set aside the imprisonment of One Year Simple imprisonment while maintaining the fine amount of Rs.1,50,000/- which has to be recovered as compensation with 15% interest by confirming the conviction and sentence under Section 138

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of the N.I. Act passed in C.P. Case No. 308 of 2010 by learned J.M. 1^st Class, Bermo at Tenughat, whereby the petitioner has been held guilty and convicted for the offence punishable under Section 138 of the N.I. Act and the petitioner has been sentenced to undergo Simple imprisonment for one year and directed to deposit the fine amount of Rs. 1,50,000/- as compensation. 3. Factual matrix giving rise to this revision is that there was a business term between the complainant and the petitioner. In course of business transaction, the accused had taken loan Rs. 1,50,000/- from the complainant in the month of August, 2009, regarding which he assured him to return the same by the last of December, 2009, but, he did not return the same within the stipulated period. It is further alleged that on 30.04.2010, the accused issued a cheque vide Cheque No. 0095018 amounting to Rs.1,50,000/- of State Bank of India, Chalkari Branch in favour of complainant. On 21.06.2010, the said cheque was presented before the State Bank of India, Dheri Branch, but on 23.06.2010, the cheque returned unpaid with an endorsement due to insufficient amount. Thereafter, on 29.06.2010, a demand notice was sent to the accused person by registered post, but he did not take care of it. On the basis of written report, complaint case was filed and

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after enquiry, prima facie case under Section 138 of the N.I. Act was found to be made out against the petitioner. The substance of accusation for the offence punishable under Section 138 of the N.I. Act was explained to accused, to which, he pleaded not guilty and claimed to be tried.

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4. The complainant in support of its case has examined altogether three witnesses namely, C.W.-1 Sahdeo Mahto, C.W. -2 Ranjeet Samanta and C.W.-3 Ashok Samanta (Complainant himself) and also exhibited documentary evidence i.e. Exhibit -1 Cheque No. 11896059383 and Exhibit -2 Bank Receipt dated 21.06.2010.

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5. The statement of petitioner under Section 313 of the Cr.P.C. was recorded, in which, he has denied the evidence against him and pleaded to be innocent. However, no oral or documentary evidence has been adduced by defence.

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6. After conclusion of trial, present petitioner was held guilty for the offence punishable under Section 138 of the N.I. Act and sentenced to undergo S.I. for one year along with fine of Rs. 1,50,000/-.

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7. Assailing his conviction and sentence, the petitioner preferred Criminal Appeal No. 4 of 2014 before the learned Sessions Judge, which was heard and disposed of by learned Additional Sessions Judge-III, Bermo at Tenughat, Bokaro and vide judgment dated 22.05.2015, the appeal of

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the petitioner was dismissed and his conviction and sentence was upheld and confirmed, which has been assailed in this revision.

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8. Learned counsel for the petitioner has submitted that the cheque was never issued by the petitioner for any legally recoverable debt or liability and no debt or liability have to be discharged by the petitioner has been proved in this case. It is further submitted that no demand notice was sent as required under Section 138 of the Negotiable Instrument Act. Hence, the impugned judgment and order is not legally sustainable and fit to be set aside and this revision is fit to be allowed.

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9. On the other hand, learned Spl. P.P. for the State has vehemently opposed the contention raised on behalf of the petitioner and submitted that there is no denial on the part of the petitioner in regard to the signature put by him on the cheque issued from his Bank Account. Both the courts below have aptly analyzed and appreciated the evidence on record and arrived at right conclusion. There is concurrent finding of fact against the petitioner and there is no merit in this revision, which is fit to be dismissed.

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10. At the very outset, it would be pertinent to reproduce the certain relevant statutory provisions of the Negotiable Instruments Act, 1881:-

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Section 138 of the Negotiable Instruments Act,

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1881 reads as under:

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“ Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account .

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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 provision of this Act, 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:

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Provided that nothing contained in this section shall apply unless--

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(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;

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(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, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

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(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.”

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Section 139 of the Negotiable Instruments Act, 1881

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reads as under:

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“ 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 section138 for the discharge, in whole or in part, of any debt or other liability.”

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Section 27 of the General Clauses Act, 1897 reads as

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under:

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“ 27. Meaning of service by post.— Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post .

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Section 114 of the Indian Evidence Act, 1872 reads as under:

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“ 114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations

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The Court may presume -

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(a) ………………………………………………………………..

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(b) ………………………………………………………………..

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(d) ………………………………………………………………..

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(e) ………………………………………………………………..

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(f) that the common course of business has been followed in particular cases;

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(g) …………………………………………………………………

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(h) ………………………………………………………………..

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(i) …………………………………………………………………

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But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it: -

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as to illustration (f) -- the question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;

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11. From perusal of above provisions, it appears that Section 139 of the N.I. Act says that holder of the Cheque received the Cheque for discharge of any debt either in whole or in part and combined reading of Section 27 of the General Clauses Act, 1897 and Section 114 (f) with Illustration (f) of the Indian Evidence Act, 1872 says that if a letter duly addressed put in due course, it may be presumed that the letter has been reached to its destination unless the contrary is proved.

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12. As per the allegations made in the complaint petition, a cheque was issued by the petitioner in favour of the complainant for the liability of payment of loan amount of Rs. 1,50,000/-, which was given by the complainant / opposite party no. 2 to the petitioner as friendly loan in the month of August, 2009 and assured to be returned by December, 2009, but the same was not returned. On request, the petitioner issued a cheque on 30.04.2010 in favour of opposite party no. 2 amounting to Rs. 1,50,000/and the said cheque was present for encashment on 21.06.2010, but the same was returned unpaid due to insufficient fund on 23.06.2010. Thereafter, on 29.06.2010, a demand notice was sent by registered post to the

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petitioner, but the amount was not repaid nor the notice was replied. At last, on 16.08.2010, the complaint was filed with specific averment made in complaint of sending the demand notice by registered post.

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13. After enquiry, cognizance of the offence under Section 138 of the N.I. Act was taken. Despite receiving the summons, the petitioner did not chose to repay and return the cheque amount. The object of issuing the demand notice before filing the complaint is to give an opportunity to the drawer of the cheque.

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14. In view of the oral as well as documentary evidence, the prosecution case is proved beyond all reasonable doubt and the presumption under Section 139 of the N.I. Act also arises in favour of the complainant / opposite party no. 2 in regard to the consideration of the cheque, at the time of acceptance of cheque and also the time of transfer of the cheque.

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15. Likewise, the presumption under Section 139 of the N.I. Act also be taken in favour of the complainant / opposite party no. 2 that the holder of the cheque received the cheque of the nature referred under Section 138 of the N.I. Act for discharge in whole or in part of any debt or other liability. The presumption under Sections 138 and 139 of the N.I. Act both are rebuttable presumption.

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16. The complainant / opposite party no. 2 and his witnesses have fully supported the case and the documents have also been proved. Moreover, from the suggestion put by C.W.-2 in para-3, there is no denial from the fact that cheque was given to the complainant. Meaning thereby, the petitioner has also not disputed his signature on the said cheque. The petitioner did not adduce any evidence and also did not rebut the presumption under law.

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17. In view of above discussion and reasons, the impugned order passed by the learned trial court and affirmed by the learned appellate court needs no interference by this Court and this criminal revision deserves to be dismissed.

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18. Accordingly, this criminal revision is hereby dismissed and the judgment and order passed by the learned trial court affirmed by the learned appellate court is affirmed.

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19. Let a copy of this judgment along with trial court record be sent to the court concerned for information and needful.

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(Pradeep Kumar Srivastava, J.)

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Jharkhand High Court, Ranchi Dated : 14/08/2024

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Sunil/-NAFR

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Shankar Singh v. The State Of Jharkhand And Anr.

Case brief

What is this about?

What the court decided

Shankar Singh v. The State Of Jharkhand And Anr.

Case brief

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What the court decided

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