Anita Nayak Vs Krishna Kumari Jena

Instant revision is filed by the petitioner assailing the impugned order of conviction and sentence dated 16^th March, 2021 passed in connection with 1.C.C. No.353 of 2016 and the judgment dated 10^th January, 2022 of the learned Sessions Judge, Ganjam, Berhampur in Criminal Appeal No.05 of 2021 on the grounds stated.

¶17

The petitioner challenged the impugned judgment at Annexure-1on the grounds inter alia that the learned court below has not properly appreciated the evidence on record, however, reached at a conclusion that an offence under Section 138 of the N.I. Act is proved and established.

¶18

Page 1 of 5

¶19

Mr. Dash, learned counsel for the opposite party submits that the opposite party was examined as P.W.1 and one more witness as P.W.2 and exhibited the alleged cheque received from the petitioner and other documents as Exts.2 to 7. The submission is that drawal of cheque is not in dispute nor the signature of the petitioner thereon proved as Ext.1/1 and since there was an existing liability, in due discharge of the debt, the cheque having been issued, the learned court below did not commit any error or illegality in concluding that an offence under Section 138 of the N.I. Act is made out and therefore, the impugned judgment at Annexure-1 in appeal should not be disturbed.

¶20

Perused the depositions of the opposite party and the other witness examined as P.W.2 in 1.C.C. Case No.353 of 2016 at Annexure-2.

¶21

Gone through the LCR received from the Court below.

¶22

The opposite party, since received the cheque and it was presented before the Bank and stood dishonored, filed the complaint against the petitioner alleging an offence under Section 138 of the N.I. Act to have been committed. The learned Trial Court upon receiving the complaint with the allegation that the cheque of Rs. 5,00,000/- was issued by the petitioner and the same has bounced back received evidence from the opposite party, who examined himself as P.W.1 and her husband as P.W.2. The petitioner, however, did not adduce any oral and documentary evidence denying such allegation of

¶23

Page 2 of 5

¶24

the opposite party. Upon receiving the evidence and considering the same, the learned SDJM, Berhampur held and concluded that an offence under Section 138 of the N.I. Act is proved and accordingly, passed the order of conviction and sentence by a judgment dated 16^th March, 2021 which has ultimately been upheld vide Annexure-1.

¶25

On a reading of the depositions of P.Ws. 1 & 2, the Court finds that the alleged cheque marked as Ext.1 was received from the petitioner and thereafter, it was deposited before the Bank on 30^th September, 2016, however, the same could not be honoured and received back with an endorsement of ‘funds insufficient’. It is further deposed by P.W. 1 that upon receiving such intimation, notice was issued to the petitioner but the amount was not refunded and ultimately, the complaint was filed. Apart from Ext.1 and signature of the petitioner thereon as Ext. 1/1, P.W. 1 proved Exts. 2 to 7. In fact, the intimation of the Bank is marked as Ext.2. Apart from the above, the statements of account maintained by the petitioner in the Bank were received as evidence and marked as Exts. 6 & 7. Furthermore, a demand notice dated 4^th October, 2016 was issued by the opposite party and it was duly received by the petitioner. The evidence in that regard has been adduced from the side of the opposite party as well.

¶26

The question is, whether, a case for an offence punishable under Section 138 of the N.I. Act has been made out as it is concluded by the learned Trial Court and finally upheld in appeal.

¶27

Page 3 of 5

¶28

Law is well settled that if in case, the cheque is bounced, it is for the drawer of the cheque to discharge the burden. Section 139 of the N.I. Act stipulates that there is a presumption attached and if such presumption is not rebutted, then it has to be held that an offence under Section 138 is made out. The requirement is that there should be existence of a lawful debt to be enforced and in that connection, the cheque has been received from the drawer.

¶29

In the case at hand, the petitioner having drawn the cheque and received by the opposite party and signature thereon was never in dispute and since it was presented before the banker and dishonoured with proper intimation received as per Ext.2, in view of the reverse presumption under law, it has to be held that the petitioner committed an offence under Section 138 of the N.I.Act. No plausible explanation was either received from the petitioner before the learned Trial Court. On a reading of the statement recorded under Section 313 Cr.P.C., the Court finds that there is only a plain denial by the petitioner. That apart, the petitioner did not lead any evidence either oral or documentary. Under such circumstances, since the debt is established by P.W.1 and in support of such claim, evidence was received and duly proved and as there has been default on the part of the petitioner to pay back the amount of the cheque to the opposite party even after intimation in view of the insufficiency of funds in the account maintained by him, the inescapable conclusion of the Court is that the learned court below did not commit any error in confirming the order of

¶30

Page 4 of 5

¶31

conviction and sentence, hence, therefore, the impugned judgment at Annexure-1 is not to be interfered with.

¶32