Kaleshwar Mahato vs The State Of Jharkhand
2021 Latest Caselaw 800 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI

                        Cr. Revision No. 844 of 2013

         Kaleshwar Mahato, son of Late Meghan Mahato, Resident of
         Village Kalyanpur, P.O. & P.S. Barwadda, Dist. Dhanbad.
                                             ...     ...      Petitioner
                             Versus
      1. The State of Jharkhand
      2. Kameshwar Saw, S/o Late Bhim Saw, R/o Shramik Nagar,
         P.S. Bhuli (Bank More) P.O. Dhanbad, District Dhanbad.
                                             ...     ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Lukesh Kumar, Advocate For the O.P. No.2 : Mr. Sandip Kumar Burnwal, Advocate

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Through Video Conferencing

C.A.V. on 17.12.2020. Pronounced on 19.02.2021

1. Learned counsel for the petitioner Mr. Lukesh Kumar is present.

2. Learned counsel for the opposite party No.-2 Mr. Sandip Kumar Burnwal is also present.

3. This criminal revision petition has been filed for the following reliefs: -

"That the instant Criminal Revision Application is directed against the Judgment dated 02.08.2010 passed in Criminal Appeal No. 279/2010 by Sri Sachindra Kumar Pandey, Additional Sessions Judge, Fast Track Court IV, Dhanbad whereby and whereunder the Judgment and Order of sentence dated 30.07.2009 passed in C.P. Case No. 1029/2007 and T.R. No. 829/2009 by Sri Debasis Mohapatra, Learned Judicial Magistrate 1st Class, Dhanbad, whereby the petitioner has been directed to undergo for the Simple Imprisonment of 6 (six) months for offence U/S 138 N.I. Act and also directed to pay a sum of Rupees one lakh and thirty three thousands and nine hundred as

compensation to the complainant, which is equivalent to both the cheque amounts was affirmed."

Arguments of the petitioner

4. Learned counsel for the petitioner submits that following are the undisputed list of dates in the present case: -

Dates Particulars 07.09.2005 Agreement entered between Deepak Saw and Smt. Shibrani Devi (Wife of Complainant) 15.05.2007 Cheque No. 095183 dated 15.05.2007 drawn on Indus Ind Bank, Dhanbad Branch for a sum of Rs. 1,33,900/- by the petitioner (on behalf of Deepak Saw) in favour of complainant.

17.05.2007 The said cheque was deposited into the bank by the complainant and the same was returned dishonoured with remark "fund insufficient"

28.05.2007 Demand Notice was issued by the complainant through his lawyer Admittedly the demand notice returned unserved 27.06.2007 The complaint has been filed under section 138 N.I. Act bearing C.P. Case No. 1029/2007/T.R. Case No. 829/2009

5. The main grounds of revision are as under: -

a) For that, the learned court below has failed to take into consideration that there is no relation between the complainant and petitioner as there was no agreement, no liability between the parties and hence, no cause of action arose to proceed with the present criminal case.

b) For that, the learned court below has failed to take into consideration that the mandatory provision under the N.I. Act has not been complied with as it is admitted by the complainant that the notice issued by him after the cheque got bounced was never served to the

petitioner, rather the same was returned to the complainant and only on this ground, the whole proceeding is vitiated.

6. The learned counsel for the petitioner further submits that as per the complaint petition itself, the agreement was entered into between one Deepak Saw and Smt. Shibrani Devi (wife of the complainant) and the cheque involved in the present case was issued by the petitioner on behalf of Deepak Saw in favour of the complainant. He further submits that so far as the petitioner and the complainant are concerned, there was no privity of contract calling for payment of any amount, nor there was any liability flowing from the petitioner in favour of the complainant and the agreement was also between two different persons, namely, Deepak Saw and Smt. Shibrani Devi who is the wife of the complainant. He submits that the amount, if any, was payable by Deepak Saw to Smt. Shibrani Devi and the cheque in the present case is said to have been issued by the petitioner on behalf of Deepak Saw in favour of the husband of Smt. Shibrani Devi and thus, neither the petitioner, nor the complainant were party to the agreement entered into between Deepak Saw and Smt. Shibrani Devi. He further submits that the complaint was premature and hence, it was not maintainable considering the time lines under the relevant provisions of the Negotiable Instruments Act.

7. The learned counsel appearing on behalf of the petitioner further submits that considering the aforesaid aspect of the matter, the petitioner could not have been convicted under Section 138 of the Negotiable Instruments Act. He submits that the debt, if any, was neither payable to the complainant (husband of Smt. Shibrani Devi), nor it was payable by the petitioner and in fact the debt, if any, was payable by Deepak Saw to the wife of the complainant.

8. The learned counsel appearing on behalf of the Opposite Party No.2 has relied upon judgments passed by the Hon'ble Kerala High Court reported in 2002 Cr.L.J. 4194 (Gopi -vs- Sudarshan) as well as the judgment passed by Hon'ble Madras High Court reported in 2001 Cr.L.J. 2392 (P.R. Shankar Rao -vs- Joseph and Joseph Regis Kalingarayar) to submit that the requirement for the offence to be made out under Section 138 of the Negotiable Instruments Act, 1881 is that the cheque must be drawn for discharge, in whole or in part, of any debt or other liability and Section 138 of the said Act does not say that the cheque should have been drawn for discharge of any debt or other liability of the drawer towards the payee. He further submits that there is a legal presumption under Section 139 of the N.I. Act that the cheque was issued for discharge in whole or in part, of any debt or other liability and therefore, that would mean that the debt or other liability includes the due from any other person. It is not necessary that the debt or other liability should be due from the drawer himself.

9. Learned counsel for the Opposite Party No.2 has further submitted that the learned trial court has recorded in Para-11 of the impugned judgment that in the backside of the agreement, the accused himself has made certain endorsement admitting that he had taken money from the complainant, as such, it becomes clear that in the light of the agreement, the accused had taken money from the complainant.

10. In response, the learned counsel appearing on behalf of the petitioner has submitted that the debt or liability in the present case was neither payable by the petitioner to the complainant, nor it was receivable by the complainant as the entire liability arises out of agreement entered into between a 3rd party, namely, Deepak Saw and the wife of the complainant

and therefore any recoverable debt was at best recoverable by the wife of the complainant and not the complainant.

Findings of this Court

11. After hearing the learned counsel for the parties and going through the judgments passed by the learned courts below and the lower court records of the case, this Court finds that on 27.06.2007, the Complainant namely, Kameshwar Saw presented a Complainant before the court of the learned Chief Judicial Magistrate at Dhanbad alleging inter-alia that a deed of agreement dated 07.09.2005 was executed between one Deepak Saw and Smt. Shibrani Devi, wife of the Complainant, in respect of the land registry/sale in which the petitioner was the sole guarantor/ witness, but Deepak Saw failed sell the land and Deepak Saw was to return the entire amount to the Complainant and the petitioner promised to return the entire amount given to Deepak Saw through the petitioner. The petitioner issued a cheque to the Complainant which could not be encashed and thereafter, the Complainant approached the petitioner several times for payment of the entire amount and ultimately, the petitioner issued Cheque No.095183 dated 15.05.2007 for Rs. 1,33,900/- to the Complainant. When the Complainant presented the cheque for encashment, it was dishnoured with remarks "Fund insufficient". Thereafter, the Complainant sent a notice to the petitioner and ultimately, the Complainant filed the Complaint Petition on 27.06.2007.

12. After examination of the Complainant on solemn affirmation, vide order dated 01.08.2007, it was found that a prima facie case under Section 138 of the Negotiable Instruments Act is made out against the petitioner.

13. On 28.11.2008, the substance of accusation for the offence under Section 138 of the Negotiable Instruments Act, 1881 was

read over and explained to the petitioner in Hindi to which he pleaded not guilty and claimed to be tried.

14. In course of trial, altogether three witnesses were examined on behalf of the Complainant. C.W.-1 is Yogendra Prasad Singh, C.W.-2 is Shibrani Devi who is wife of the Complainant and C.W.-3 is Kameshwar Saw who is the Complainant himself. The Complainant exhibited the signatures of Shibrani Devi on the deed of agreement as Exhibits-1 and 1/1, Agreement deed dated 07.09.2005 as Exhibit-2, Cheque No.095183 dated 15.05.2007 for Rs. 1,33,900/- as Exhibit-3, Cheque Return Memo as Exhibit-4, Postal Receipt as Exhibit-5, Signatures of Complainant on advocate notice as Exhibit-6 to 6/2, Letter of Deepak Saw dated 30.04.2006 as Exhibit-7 and signatures of Complainant on Complaint Petition as Exhibit-8 to 8/4.

15. On 03.03.2009, the statements of the petitioner were recorded under Section 313 of Cr.P.C. wherein the petitioner denied the incriminating evidences put to him and claimed to be innocent. The petitioner did not adduce any oral or documentary evidence in his defence.

16. From perusal of the judgment passed by the learned trial court, this Court finds that it has been recorded by the learned trial court that from the deposition of the witnesses as well as from the documents filed by the complainant, it appears that the cheque was dated 15.05.2007 and on its presentation in the bank, the same was dishonoured vide memo dated 17.05.2007 and thereafter, the demand notice was sent by the complainant through his lawyer on 28.05.2007 and that the complaint case was filed on 27.06.2007 and on the basis of this finding, the learned trial court has recorded that it appears that the complaint petition has been filed within time.

17. So far as the judgment passed by the learned appellate court is concerned, the learned appellate court has not considered the timeline regarding bouncing of cheque, issuance of legal notice and filing of the complaint case.

18. This Court finds that in the case of Yogendra Pratap Singh -versus- Savitri Pandey and Another reported in (2014) 10 SCC 713, it has been held in Paragraph-30 that Section 138 of the Negotiable Instruments Act, 1881 comprises of main provision which defines the ingredients of the offence and appended to this Section are three clauses (a), (b) and (c) and the offence under Section 138 is made effective only on fulfilment of eventualities contained in clause (a), (b) and (c) of the proviso to Section 138 and for completion of an offence under Section 138, not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary, but it is also imperative that all the three eventualities mentioned in clause (a), (b) and (c) of the proviso are satisfied. Mere issuance of cheque and dishonour thereof would not constitute an offence by itself under Section 138 of the Negotiable Instruments Act, 1881. Paragraphs- 30 to 33 of the said judgment are quoted as under: -

"30. Section 138 of the NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this section is also a proviso which has three clauses viz. (a), (b) and (c). The offence under Section 138 is made effective only on fulfilment of the eventualities contained in clauses (a), (b) and (c) of the proviso. For completion of an offence under Section 138 of the NI Act not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and

(c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof would not constitute an offence by itself under Section 138.

31. Section 138 of the NI Act has been analysed by this Court in Kusum Ingots & Alloys Ltd. wherein this Court said that the

following ingredients are required to be satisfied for making out a case under Section 138 of the NI Act: (SCC p. 753, para 10) "(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;

(ii) that 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;

(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the 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 the bank;

(iv) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."

32. We are in agreement with the above analysis.

33. In K.R. Indira, a two-Judge Bench of this Court observed that the offence under Section 138 of the NI Act could be completed if all the above components are satisfied."

19. This Court finds that the petitioner had issued Cheque No.095183 dated 15.05.2007 for Rs. 1,33,000/- to the Complainant and on presentation, the cheque was dishonoured on 17.05.2007 and thereafter, the Complainant sent the demand notice to the petitioner on 28.05.2007 and then, he presented the Complaint on 27.06.2007.

20. This Court is of the considered view that mere presentation of cheque and its dishonour coupled with issuance of notice to the accused is not sufficient for filing the complaint case. The essential steps are also in connection with receipt of the demand notice by the accused either by way of refusal or by deemed service of notice or by actual delivery which is an

important date in a complaint filed under Section 138 of the Negotiable Instruments Act, 1881.

21. In the present case, as per the complaint petition, the notice was returned unserved and nothing has been mentioned regarding the reason for return of notice and there is no such finding by the learned courts below on the point of reason for return of notice. Merely because the notice has returned back, the same by itself does not mean that it has been served. There is no evidence, rather there is no plea in connection with the fact as to how the notice has been treated as served. There is no finding by the learned courts below on the point of service of notice to the accused. Thus, the prosecution has failed to prove one of the essential condition precedent (i.e. service of notice of upon the accused) for filing a case under Section 138 of N.I. Act and accordingly, the conviction of the petitioner cannot be sustained in the eyes of law.

22. In such circumstances, there being no finding regarding service of notice to the accused. The conviction of the accused under Section 138 of Negotiable Instruments Act cannot be sustained in the eyes of law.

23. So far as the presumption of law under Section 139 of the Negotiable Instruments Act coupled with the issue as to whether the accused was under a debt is concerned, there is a consistent finding recorded by the learned courts below that the accused had taken money from the complainant and this fining has been arrived at after appreciating the materials on record. In such circumstances, this finding of the learned courts below does not call for any interference.

24. However, essential ingredient regarding cause of action for filing the case under Section 138 of the Negotiable Instruments Act, 1881 having not been satisfied in the present

case, the impugned judgments of conviction and sentence are perverse which cannot be sustained in the eyes of law

25. Accordingly, both the impugned judgments passed by the learned courts below are hereby set aside and the petitioner is acquitted from the accusation thereunder and he is discharged from the liability of his bail bond.

26. Accordingly, the present criminal revision petition stands allowed.

27. Pending interlocutory application, if any, is dismissed as not pressed.

28. Let the lower court records be sent back to the court concerned.

29. Let this order be communicated to the learned court below through FAX / e-mail.

(Anubha Rawat Choudhary, J.)

Mukul/