Dinesh Prasad Vs the State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Rev. No. 864 of 2018

Dinesh Prasad, aged about 34 years, Son of Sri Balkeshwar Sahu, Resident of Village – Rusu, P.O. – Kersai, P.S. – Kersai, District - Simdega … … Petitioner

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Versus

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The State of Jharkhand

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Nageshwar Sah, Son of late Harkhit Sah, Resident of Village – Niche Bazar, Simdega, P.O. + P.S. and District - Simdega.

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… … Opposite Parties

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Mahesh Tewari, Advocate For the State : Mr. Bishambhar Shastri, Advocate For the Opposite party No.2: Mr. Binod Kumar Dubey, Advocate

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15 /18.09.2024 Heard the learned counsels for the parties.

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2. This criminal revision has been filed against the judgment dated 10.05.2018 passed in Criminal Appeal No.26 of 2017 whereby the appeal has been dismissed by the learned Additional Sessions Judge - I, Simdega. The judgement passed by the learned trial court has also been challenged.

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3. The petitioner has been convicted vide judgment dated 04.10.2017 passed by learned Chief Judicial Magistrate, Simdega in Complaint Case No.340 of 2016 (T.R. No.393 of 2017) whereby the petitioner has been held guilty of offence under section 138 of the Negotiable Instrument Act, 1881 and has been sentenced to imprisonment for two years and to pay fine of Rs.6,00,000/-.

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Arguments of the Petitioner

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4. The learned counsel for the petitioner while assailing the impugned judgments has submitted that the sole point involved in the present case is that there is no finding that the legal notice was received by the petitioner and in such circumstances, the petitioner could not have been convicted for offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the Act of 1881 .

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5. The learned counsel has also submitted that proviso (c) to Section 138 of the aforesaid Act of 1881 clearly provides that the complaint case can be filed after 15 days from the receipt of the notice. He submits

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that since there is no finding with regard to receipt of the notice by the petitioner, the conviction of the petitioner is bad in law.

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6. No other point has been argued by the learned counsel for the petitioner.

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Argument of the Opposite Parties

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7. The learned counsels for the opposite parties have opposed the prayer of the petitioner and submitted that there are concurrent findings recorded by the learned courts, and therefore, the impugned judgments do not call for any interference.

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Findings of this Court

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8. After hearing the learned counsels for the parties and considering the facts and circumstances of this case, this Court finds that both the courts have recorded that a cheque dated 30.07.2016 (Exhibit 1) for an amount of Rs.4,32,000/- was issued in favour of the complainant; the cheque was presented which was dishonoured due to ‘insufficient fund’ vide cheque return memo dated 01.08.2016 (Exhibit 2); the complainant sent legal notice on 09.08.2016 (Exhibit-3) through registered post (Exhibit-4).

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9. The learned trial court considered the defence of the petitioner and, inter alia , recorded finding in paragraph 14 of the judgement as

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under: -

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“14. It is raised by the learned defence counsel that accused Dinesh Prasad handed over his personal cheque in favour of Nageshwar Sah which was used as security for receiving of cement from his shop, which liability was cleared by the owner of M/s Radhika Construction Company, way back in the year 2011/12. Defence witnesses have also proved that Rs. 32,000/- was paid by the accused Dinesh Prasad to Nageshwar Sah in presence of D.W. 1 and D.W. 2. There is no liability remains against him, this complainant Nageshwar Sah has cheated Dinesh Prasad and used cheque No. 516909 against him, get it dishonored and filed false case against him.

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If I am going through the case record and exhibited documents produced by the complainant Nageshwar Sah it transpires to me that Exhibit-1 is cheque bearing No. 516909, dated 30.07.16 it clearly discloses that the cheque was issued by Dinesh Prasad in his personal capacity. It has also not be challenged by defence. Dinesh Prasad in his defence claimed that dues amount was way back cleared in the year 2011-12 than it surprises how he issued cheque in the year 2016, on 30th July. It is also surprise to this court that if Dinesh Prasad issued a blank cheque to be used as security to Nageshwar Sah, why he not taken back the said cheque when payment was made to Nageshwar Sah, why he has not came before the authorities that he handed over a blank cheque to Nageshwar Sah, there is possibility of getting it misused. In this case the contents, handwriting over the cheque is also not challenged.

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It further….”

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10. This Court finds that the learned trial court while considering the materials on record in paragraph 14 has recorded that the defence has admitted about the issuance of cheque and it was the case of the complainant that notice was issued and in spite of service of notice, the accused did not pay the amount and hence the complaint case was filed. The complainant, who was examined as C.W-1 has fully supported the case by filing the documentary evidences and deposed that inspite of service of notice, the petitioner did not pay the cheque amount. The case of the complainant was that the cheque was issued on account of supply of stone chips to the petitioner and the only defence taken by the petitioner was that there was no existing liability of the petitioner and the cheque was a security cheque. Thus, issuance of cheque and receipt of legal notice was never in dispute. The petitioner neither disputed the receipt of legal notice nor raised any defence with regard to the statutory time line in connection with bouncing of the cheque nor disclosed the date of service of legal notice.

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11. The learned trial court also considered the presumptions under Section 118 and 139 of the aforesaid Act of 1881 and held that in this case accused Dinesh Prasad (petitioner) failed to rebut presumption which is in favour of holder of cheque complainant Nageshwar Sah (opposite party no.2) and ultimately convicted the petitioner for offence under Section 138 of the aforesaid Act of 1881.

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12. The learned appellate court also considered the materials on record and gave concurrent findings and upheld the conviction of the petitioner.

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13. As per the complaint petition, a specific statement was made in the complaint at paragraph 7 that the petitioner did not pay the cheque amount even after expiry of 15 days from the date of service of notice and the cause of action arose in terms of section 138 (c) arose and accordingly the complaint case was filed on 30.08.2016. This Court finds that similar statement was also made by the complainant in his evidence on affidavit.

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14. Thus, it was duly proved that the legal notice was sent on 09.08.2016 and the case was filed after 20 days on 30.08.2016. Although the complainant did not mention the date of receipt of the legal notice by the petitioner but made specific statement in his

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complaint petition and also in the evidence on affidavit (C.W-1) that the petitioner did not pay the cheque amount even after expiry of 15 days from the date of service of notice and the cause of action arose in terms of section 138 (c), and accordingly, the complaint case was filed on 30.08.2016. This Court has gone through the entire cross-examination of the C.W-1 and finds that there is no cross examination with regard to the service of legal notice upon the petitioner and also regarding the specific statement made in the complaint as well as in the evidence on affidavit that the petitioner did not pay the cheque amount even after expiry of 15 days from the date of service of notice and the cause of action arose in terms of section 138 (c) and accordingly the complaint case was filed on 30.08.2016. Thus, the evidence of the C.W-1 that the case was filed when the cause of action arose, that is, when the petitioner did not pay the cheque amount within 15 days from the date of service of legal notice, remained intact.

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15. Further, upon going through the statement of the petitioner as recorded under Section 313 of Cr.P.C., this Court finds that the petitioner has stated that he had issued the cheque and he came to know about the dishonour of cheque through legal notice but he had disputed the liability by stating that the petitioner had issued a security cheque to the complainant. The statement made under Section 313 of Cr.P.C. has been recorded by the learned appellate court in paragraph 10 of the appellate court’s judgement as under: -

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“The accused had admitted in his statement recorded u/s 313 of Cr.P.C. that he had issued cheque and he has received legal notice also, but he handed over the cheque as security to Nageshwar Sah and there was no dues against him.”

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16. This Court finds that although the date of service of legal notice has not been mentioned by the complainant either in his complaint petition or in his evidence but he has clearly stated and deposed about the filing of the case upon satisfying the cause of action in terms of section 138 (c) of the aforesaid Act of 1881 which remained uncontroverted and unquestioned. The petitioner admitted the receipt of notice, but did not disclose the date of receipt. Under such circumstances, it cannot be said that the case was filed without arising of the cause of action in terms of proviso (c) of Section 138 of the aforesaid Act of 1881. The argument of the petitioner that the case was

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filed without satisfying the requirement of proviso (c) of Section 138 of the aforesaid Act of 1881 is devoid of merits hence rejected. Further, the argument of the petitioner that there is no finding regarding service of legal notice upon the petitioner is also devoid of any merits as the learned court, as quoted above, has clearly recorded by referring to the statement of the petitioner recorded under Section 313 of Cr.P.C that the petitioner has admitted service of legal notice.

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17. This Court finds that the learned courts have rightly considered the materials on record and have convicted the petitioner. This Court finds no reason to interfere with the impugned judgments in revisional jurisdiction.

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18. Accordingly, this revision is hereby dismissed.

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19. Pending interlocutory application, if any, stands closed.

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20. Let a copy of this order be communicated to the court concerned through FAX/email.

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(Anubha Rawat Choudhary, J.)

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Saurav/-

Dinesh Prasad v. the State of Jharkhand

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Dinesh Prasad v. the State of Jharkhand

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