Partly allowed

Ashok Ku.Chandak v. Ganesh Ch.Saha

Orissa HC9 Jul 2019CRLREV/333/2011

Case brief

AI extract

What is this about?

This revision concerned a conviction and sentence under Section 138 of the Negotiable Instruments Act. The High Court upheld the finding regarding service of the demand notice but modified the quantum of sentence and compensation, deeming the original sentence excessive.

What did the court decide?

Sentence reduced from two years to six months; compensation reduced from Rs.10,00,000 to Rs.7,00,000.

Ashok Ku.Chandak Vs Ganesh Ch.Saha — Cheque Dishonour | Orissa HC (2019)

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CRLREV NO. 333 OF 2011

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09.07.2019 This revision arises from the judgment dated 24.01.2011 passed by the learned Additional Sessions Judge, Rourkela in Criminal Appeal No. 4 of 2009.

¶3

By the said judgment, the appellate court has dismissed the appeal filed by this petitioner (accused) questioning the judgment of conviction and order of sentence dated 16.12.2008 passed by the learned JMFC, Panposh in ICC No. 377 of 2007 filed by the opposite party (complainant) convicting the accused for commission of offence under section 138 of N.I. Act and sentencing him to undergo simple imprisonment for two years and pay compensation of Rs.10,00,000/- in default to undergo imprisonment for six months.

¶4

The case of the complainant in brief is that in view of his acquaintance with the accused since long, the accused approached him to advance friendly loan of Rs.6,00,000/-. Accepting the request, the complainant on 9.03.2007 provided the loan by issuing two cheques; one for Rs.3,80,000/- and the other for Rs.2,20,000/- in favour of the accused. Both the cheques were encashed by the accused. In order to repay the loan, on 23.04.2007 the accused had issued a cheque for that amount drawn on Allahabad Bank, Rourkela. The said cheque being presented for collection through the account of the complainant in that Bank, the same bounced back and was dishonoured for insufficient funds. The complainant then served notice upon the accused demanding payment of the amount covered under the cheque and ultimately, there being no response from the side of the accused, the complaint has been filed.

¶5

The accused in the trial has taken the defence of denial as to the advancement of loan by the complainant, denial of the signature on the cheque and non service of notice in terms of the provision contained in section 138(b) of the N.I.Act.

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The trial court upon analysis of oral evidence let in by the parties as also the documentary evidence returned the finding that the accused has committed the offence under section 138 of the N.I.Act and has accordingly sentenced him and directed to pay compensation with default stipulation as aforesaid.

¶7

The accused having filed the appeal has become unsuccessful in getting the finding of conviction and order of sentence as also compensation over turned.

¶8

Learned counsel for the petitioner (accused) in this revision confines his submission only as to service of notice of demand in terms of the provision of section 138(b) of N.I. Act. He submits that the evidence being not at all acceptable on the score of establishing the factum of service of notice upon the accused demanding the payment of the amount covered under the cheque which stood dishonoured, the findings of the courts below as to compliance of said mandatory provision of law are unsustainable and the complaint has to fail on that ground alone being not maintainable and the order of cognizance which is the foundation of the proceeding is bad in law vitiating the proceeding. He further submits that the quantum of sentence and compensation are highly disproportionate.

¶9

None appears on behalf of the opposite party (complainant).

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In order to address the above raised contention from the side of the accused, I have perused the judgments of the courts below as also the evidence both oral and documentary touching that aspect of service of notice in terms of section 138(b) of the N.I.Act.

¶11

The notice has been sent by Registered Post with AD on 30.05.2007 and that has returned on 06.06.2007 with the postal endorsement that no such person resides in the said address. The court below having perused the record, has taken note of the fact that this accused had appeared in another case i.e. ICC No. 98 of 2006 and there in his evidence he had given that very address. In that view of the matter, postal endorsement has been held to be incorrect and rather manipulated.

¶12

The complainant in this case having further ascertained that the accused was then residing in Raipur and has been doing business and residing in different addresses has sent the subsequent notices on 14.06.2007 in three such addresses vide postal receipts Ext.8, 9 and 10 and one such notice has been received by Nisha Chandak who happens to be the wife of the accused as proved from Ext.17, the application of the accused and his wife given to the Bank. The accused in his evidence has not denied this relationship. The court below has found the first notice as also the subsequent notice to have seen sent within the time stipulated and the complaint having been filed with the time specified has been held to be competent. The courts below have also found the first notice to have been sent in correct address and presumed due service in view of section 27 of the General Clauses Act.

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The findings as on the score of service of notice of demand as required under section 138(b) of the N.I.Act is found to be well in order and in consonance with the evidence on record. In that view of the matter, the contention raised by the learned counsel for the petitioner (accused) fails.

¶14

Coming to consider the next contention as to the sentence and compensation this Court is of the considered view that sentence of simple imprisonment for two years is excessive, as also the quantum of compensation to be on a higher side.

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Taking all the relevant facts and circumstances as emerge from the evidence into consideration, it is felt that the sentence of simple imprisonment for a period of six months and compensation of Rs.7,00,000/- to be paid within three months in default to undergo simple imprisonment for four months would serve the interest of justice.

¶16

In the wake of aforesaid, the revision is disposed of only with the modification of the order of sentence and compensation to the extent as above.

¶17

D. Dash, J.

Ashok Ku.Chandak v. Ganesh Ch.Saha

Case brief

What is this about?

What did the court decide?

Ashok Ku.Chandak v. Ganesh Ch.Saha

Case brief

What is this about?

What did the court decide?

What the court decided

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