Biglal Oraon vs The State Of Jharkhand
2023 Latest Caselaw 3155 Jhar

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. Revision No.548 of 2022
Biglal Oraon                             ..... ... Petitioner
                           Versus
1.The State of Jharkhand
2.Debu Prasad Banerjee                  .... .... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner : Mr. Mahesh Tewari, Advocate Mr. Sanjay Kumar Pandey, Advocate For the State : Mrs. Nehala Sharmin, A.P.P. For the O.P. No.2 : Mr. Arun Dubey, Advocate

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C.A.V. on 31.07.2023 Pronounced on 25.08.2023

1. This criminal revision has been preferred against the judgment

dated 11th March, 2022 passed by the Judicial Commissioner,

Ranchi in Criminal Appeal No.157 of 2019, whereby and

whereunder the judgment of conviction and order of sentence

dated 24th June, 2019 passed by the Judicial Magistrate 1st

Class, Ranchi in Compliant Case No.3111 of 2017 by which the

petitioner has been convicted for the offence under Section 138

of the Negotiable Instrument Act and sentenced to undergo

simple imprisonment for a period of one year and was directed

to pay fine by way of compensation a sum of Rs.8,00,000/- to

the complainant, namely, Debu Prasad Banerjee has been

affirmed.

2. The brief facts leading to this criminal revision are that the

complainant, namely, Debu Prasad Banerjee had moved the

complaint before the Judicial Magistrate 1st Class, Ranchi with

these allegations that he and the accused both were well

known to each other as a good friends. The daughter of

accused Biglal Oraon was suffering from serious mental

disease, therefore, he requested the complainant to arrange

the amount of Rs.10 lacs for her proper treatment in a good

hospital of India. On the request of the accused Biglal Oraon in

good faith the complainant arranged the amount of Rs.7.60 lacs

from his friends and relatives and gave the same to the

accused. Further case of the complainant is that in order to

discharge his liabilities of Rs.7.60 lacs, the accused has issued

two cheques to the complainant. The first cheque bearing

number 000142 dated 8th July, 2017 for a sum of Rs.10,000/-

and the second cheque bearing number 000172 dated 10th July,

2017 and were drawn on Bank of India, Harmu Branch, Ranchi

and same were issued in favour of the complainant. As per

request of accused, the complainant deposited the said two

cheques of Rs.7.60 lacs on 27th July, 2017 of Bank of India,

Harmu Branch, Ranchi with his Banker State Bank of India,

P.B.B. Branch, P.P. Compound, Ranchi but both the cheques got

dishonoured due to 'Insufficient Funds' on 28th July, 2017.

Thereafter the complainant immediately informed the accused

on mobile phone about the dishonour of the said cheques but

the accused told the complainant that he will not pay the said

cheques amount and also threatened the complainant to face

the dire consequences. The complainant sent legal notice

through his Advocate on 6th August, 2017 but in spite of receipt

of the notice, he did not make any payment till the date of

filing of the complaint case. Hence, the complaint was made

before the Magistrate concerned.

3. The accused was summoned by the court concerned for the

offence under Section 138 of the N.I. Act. After the appearance

of the accused, the substance of acquisition was stated to the

accused by the Magistrate concerned under Section 251 Cr.P.C.

which he denied and did not plead guilty, rather claimed to face

the trial.

4. In documentary evidence adduced two original deposit slips as

Exts.1 and 2, Ext.4 is cheque bearing no.000142 dated 8th July,

2017 of Bank of India, Harmu Branch, Ranchi for amount of

Rs.10,000/-. Ext.3 is cheque bearing no.000172 dated 10th July,

2017 of Bank of India, Harmu Branch, Ranchi for amount of

Rs.7,50,000/-. Exts.5 and 6 are return memo report dated 28th

July, 2017. Ext.7 is legal notice. Exts.8 and 9 are postal receipts

dated 6th August, 2017. Ext.10 is track report of India Post.

Ext.11 is execution report of warrant of arrest and Ext.12 is

show cause notice.

5. The accused/appellant has also proved envelope of registered

notice which has been marked Ext.A, tracking report of India

post marked as Ext.B, Aadhaar card of Biglal Oraon marked as

Ext.C, Aadhaar card of Bhinsar oraon marked as Ext.D.

6. The affidavit was also filed on behalf of the C.W.-1 Debu Prasad

Banerjee who was also cross-examined on behalf of the

defence.

7. The statement of the accused under Section 313 Cr.P.C. was

also recorded in which accused stated that he had given so

many cheques to Sanjay Oraon as a security and these cheques

were misused from his custody and also stated that he had not

received the notice and stated himself to be innocent.

8. On the other hand in defence evidence, the accused/appellant

has also adduced before the learned trial court by examining

one witness, namely, Bhinsar Oraon as D.W.1.

9. The learned trial court after hearing the learned counsel for the

parties and on the basis of the evidence adduced on behalf of

the prosecution and defence as well, passed the judgment of

conviction of the accused (the petitioner herein) under Section

138 of the N.I. Act and sentenced with simple imprisonment for

a term of one year and was also directed to pay the amount of

Rs.8 lacs by way of compensation to the complainant - Debu

Prasad Banerjee.

10. Being aggrieved with the judgment dated 24th June, 2019, the

Criminal Appeal No.157 of 2019 was preferred by the

appellant/convict Biglal Oraon before the court of Judicial

Commissioner, Ranchi and the same was dismissed vide

judgment dated 11th March, 2022 by affirming the judgment of

conviction and sentence passed by the learned trial court.

11. Being aggrieved from the impugned judgment passed by the

learned trial court and appellate court, this criminal revision has

been preferred under Section 401 of the Cr.P.C. on behalf of the

appellant/convict Biglal Oraon on the ground that the impugned

judgment passed by the learned trial court and the appellate

court are bad in the eyes of law and both courts having not

appreciated the evidence on record in a proper perspective.

The mandatory requirements of Sections 138 and 142 of the

N.I. Act were not complied with by the complainant and the

learned trial court as well as the learned appellate court had

not appreciated the same. Accordingly, prayed to allow this

criminal revision by setting aside the judgments passed by both

the court below and to acquit the petitioner for the charge

Section 138 of the N.I. Act.

12. I have heard the learned counsel for the parties and perused

the materials available on record as also the finding recorded

by the learned trial court and appellate court in the impugned

judgment.

13. In order to decide the legality and propriety of the impugned

judgment of conviction and sentence passed by the learned

trial court and also the judgment passed by the learned

appellate court, it would be pertinent here to reproduce here

the oral and documentary evidence adduced on behalf of the

complainant.

14. On behalf of the complainant to prove the substance of

accusation against the accused, in oral evidence, adduced

affidavit of complainant C.W.1 Debu Prasad Banerjee under

Section 145 of the N.I. Act, 1881 as examination-in-chief. This

witness in his affidavit has stated that he and accused were

well acquainted to each other. The daughter of the accused was

suffering from serious mental disease and the accused

requested to arrange the money of Rs.10 lacs for her urgent

and proper treatment. He arranged a sum of Rs.7,60,000/-

from his friends and well-wishers during the month of January,

2017 to June, 2017 and paid the money to the accused on

different dates. This witness has further stated that in order to

discharge his liabilities of Rs.7,60,000/-, the accused had issued

two account payee cheques vide Cheque No.000142 dated 8th

July, 2017 of Rs.10,000/- and Cheque No.000172 dated 10th

July, 2017 of Rs.7,50,000 both of Bank of India, Harmu Branch,

Ranchi in favour of the complainant. He further stated that as

per the assurance of the accused, he presented the said

cheques for clearance to his banker, namely, State Bank of

India, P.B.B. Branch, P.P. Compound, Ranchi on 27th July, 2017.

This witness has proved two original deposit slips which have

been marked Exts.1 and 2. He further deposed that after

presenting the said cheques, the same were dishonoured and

returned unpaid due to "Insufficient Fund" vide Cheque Return

Memos dated 28th July, 2017 and the said Cheque Return

Memos have been marked as Exts.3 and 4 respectively. This

witness further told that he immediately informed the accused

about the dishonour of the said two cheques of Rs.7,60,000/-

but the accused had neglected to pay the cheque amount.

Thereafter on 6th August, 2017 a demand-cum-legal notice was

sent by registered post through his Advocate and the said legal

notice and the postal receipts have been marked as Exts.7, 8

and 9 respectively. He further deposed that accused has

received the legal demand notice on 7th August, 2017 but the

accused has not paid the cheque amount.

In cross-examination on behalf of the accused, this

witness says that he was familiar with Biglal Oraon for last 30

years and file income tax return. His monthly income is Rs.20

to 25 thousand and he did not remember how much income tax

he had paid in the assessment year 2017-18. In his affidavit, he

has not shown the date on which the amount of Rs.10 lacs was

demanded by the accused. He further stated that he had given

only Rs.10 to 20 thousand from his possession and rest amount

he had arranged from his friends and relatives. He further

stated that he had received the money and none of his friends

is the witness in this complaint. It is correct to say that he has

not filed the acknowledgement due in the court. Tracking report

has been filed on behalf of him. He denied the suggestion that

these cheques were in custody of Sanjay Oraon.

15. Ext.1 is the original deposit slip of Chque No.000142

dated 8th July, 2017 of Rs.10,000/- on 27th July, 2017

before the State Bank of India, P.B.B. Branch, P.O. Compound,

Ranchi. Ext.2 is also the original deposit slip of Cheque

No.000172 dated 10th July, 2017 of Rs.7,50,000/- on

27th July, 2017 before the State Bank of India, P.B.B.

Branch, P.P. Compound, Ranchi. These two cheque deposit

slips have been proved the complaint and on this point no

cross-examination was made on behalf of the accused. Ext.3 is

the Cheque No.000142 dated 8th July, 2017 of

Rs.10,000/- issued in favour of Debu Prasad Banerjee

and signature thereon is of Biglal Oraon and Ext.4 is the

cheque no.000172 dated 10th July, 2017 of

Rs.7,50,000/- and same was also issued in favour of

Debu Prasad Banerjee. It is also signed by the drawer

of cheque, namely, Biglal Oraon and these cheques are of

Bank of India, Harmu Branch, Ranchi, Jharkhand. The

signature on both these cheques are not denied by the

accused, rather it has been stated that these cheques

were given by him as security to Sanjay Oraon. "As such

the signature on these cheques are admitted to the

accused". Exts. 5 and 6 are the return memo issued by

the State Bank of India, P.B.B Branch, Ranchi in regard

to non-payment of the cheque nos.000142 and 000172

with remark "Funds Insufficient". The postal receipts

which are Exts.8 and 9 dated 6th August, 2017 show that

the legal notice was sent through registered post. The Ext.10,

track report shows that the item was received on 7th

August, 2017. In the legal notice dated 4th August,

2017, all the facts have been disclosed in the complaint case

and it has been requested to the accused to pay the entire

amount of Rs.7,60,000/- within 15 days from receipt of the

legal notice.

16. Herein, it would be pertinent to quote herein the provisions of

Sections 118, 138, 139, 142 and 145 of the Negotiable

Instruments Act, 1881 which read as under :

118. Presumptions as to negotiable instruments.-- Until the contrary is proved, the following presumptions shall be made:--

(a) of consideration:--that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

(b) as to date:--that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance:--that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer:--that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of indorsements:--that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on;

(f) as to stamp:-- that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course:--that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

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

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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 4 [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: Provided that nothing contained in this section shall apply unless--

(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;

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

(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. Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.

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.

142.Cognizance of offences.-- [(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:

[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;]

(c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.].

[(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,--

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

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(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

145.Evidence on affidavit.--(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.

17. From the rival submissions made by the learned counsel for the

parties, the point for determination for disposal of this

criminal revision is being framed hereunder :-

i. Whether both the cheques in question were issued

for legally recoverable debt or other liability ?

18. Admittedly both the cheques were signed by the accused Biglal

Oraon and the amount mentioned in both the cheques is also

not disputed. Only dispute is in regard to the liability for which

both the cheques are alleged to be issued by the accused. On

behalf of the complainant, it has been submitted that since the

daughter of the accused was suffering from serious mental

disease he demanded Rs.10 lacs from the complainant and the

complainant arranged the said amount being a good friend

from his friends and well-wishers and given him the total

amount of Rs.7,60,000/-.

To the contrary on behalf of the accused, it has been

submitted that these two cheques were in custody of Sanjay

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Oraon to whom he had given the same as security and these

cheques were misused by the complainant.

19. The complainant Debu Prasad Banerjee was examined as

C.W.-1 and he in his statement corroborated the allegations

made in the complaint. Though, he has not made his friends

and well-wishers as the witness, from whom he had arranged

the money in order to give to the accused, yet the same

become irrelevant reason being the execution of cheque is not

denied. The proviso of Section 138 of the N.I. Act provides

that nothing contained in Section 138 shall apply unless, the

cheque has been presented to the bank out of a period of six

months from the date on which it was drawn or within the

period of its validity whichever is earlier. Its payee or 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 notice in writing to the drawer of the cheque, within

thirty days from the receipt of information by him from the

bank regarding the return of the cheque as un-paid 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. The explanation of

this Section provides that for the purpose of this section debt or

other liability, means legally enforceable debt or other liability.

20. Herein both the cheques in question were presented by

the complainant on 27th July, 2017 as such the same

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were presented within a period as prescribed under

proviso (a) of Section 138 of the N.I. Act.

21. These two cheques were dishonoured with endorsement

"Funds Insufficient" which is proved from the Exts.5

and 6. The return memo report of State Bank of India where

these two cheques were presented. These return memos are

dated 28th July, 2017. On behalf of the complainant, the notice

was issued on 4th August, 2017 through his counsel

which has been proved as Ext.7. This notice was issued on

4th August, 2017 and it was sent by registered post on 6th

August, 2017 which are Exts.8 and 9. This notice was

received to the accused on 7th August, 2017 which is

evident from the track report which is marked Ext.10.

From this legal notice, it is evident that 15 days' time was

granted to the accused to comply the notice and make the

payment of the dishonoured cheque from the date of receipt of

the notice. This notice was received by the accused on 7th

August, 2017 and 15 days were completed on 22nd

August, 2017 and from 22nd August, 2017 the complaint

should be filed within 30 days in view of Section

142(1)(b) of the N.I. Act. As such the complaint was

also filed within time. This complaint was lodged on

29th August, 2017 as such the complaint was filed

within 30 days from the date of arising of cause of

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action not complying the notice dated 22nd August,

2017.

22. Section 139 of the N.I. Act is in regard to presumption of

liability, wherein it is provided that it shall be presumed

unless the contrary is proved that the holder received

the cheque of the nature referred to in Section 138 of

the N.I. Act for discharge in whole or in part of any debt

or other liability. This legal presumption of liability is taken

the moment the accusation of the cheque is admitted. The

accused has admitted the signature on the cheque. The

amount filled in the cheque is also not disputed, he disputed

only the debt and the other liability. In view of Section 139

of the N.I. Act, the legal presumption is raised after

issuance of the cheque that it was issued for a legally

recoverable debt or other liability. Since the

complainant had discharged his burden in regard to

issuance of the cheque on which the signature has been

admitted by the accused himself and the amount is not

dispute, therefore, the burden of proof shifts upon the

accused to rebut this legal presumption under Section

139 of the N.I. Act to show that the cheque was not

issued for any legally recoverable debt or other liability.

23. So far as the cheques in question are concerned, in view of the

Section 118 of the N.I. Act until the contrary is proved the

presumptions shall be made that every negotiable instrument

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was made or drawn for consideration, and that every such

instrument, when it has been accepted, indorsed, negotiated or

transferred, was accepted, indorsed, negotiated or transferred

for consideration.

24. In both the cheques the amount of Rs.10,000/- and

Rs.7,50,000/- and the date of issuance of cheque is stated. The

presumption for the same shall also be raised under Section

118 of the N.I. Act that they were issued on the very date

which is shown in the cheque i.e., 8th July, 2017 and 10th July,

2017 respectively and were issued for consideration of

Rs.10,000/- and 7,50,000/- respectively. The burden of proof

now shifts upon the accused to rebut the presumption under

Section 118 of the N.I. Act.

25. On behalf of the accused, in rebuttal of the presumption

under Sections 118 and 139 of the N.I. Act, has adduced

only one witness D.W.-1 Bhinsar Oraon. This witness has

been examined only to show that the accused was not residing

at Lohardaga at the address, where the notice was issued. This

witness is not in regard to rebut the presumption of the liability

under Section 139 of the N.I. Act or in regard to issuance of the

cheque under Section 118 of the N.I. Act. So far as the

service of notice is concerned, this notice was issued on

the very address of Biglal Oraon which is also shown in

the present criminal revision and as per the postal track

report, it was delivered on the said address. The defence

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of the accused that he had not been residing at Lohardaga for

last 20 years is not found tenable, since the notice was received

on the address which has been mentioned in this criminal

revision.

26. On behalf of the accused, this defence that the cheque was

given to Sanjay Oraon as a security which has been misused by

the complainant is taken in his statement under Section 313

Cr.P.C but the accused did not muster courage to produce

himself in defence evidence to rebut the presumption in regard

to legally recoverable debt. The D.W.-1 Bhinsar Oraon is not

in regard to legally recoverable debt or liability, therefore, the

accused has not discharge burden of rebutting the legal

presumption under Sections 118 and 139 of the N.I.

Act.

27. The Hon'ble Apex Court in the case of Yogesh Jain versus

Sumesh Chadha reported in 2022 Livelaw SC 879 has held

that once a cheque is issued and upon getting dishonoured a

statutory notice is issued, it is for the accused to dislodge the

legal presumption available under Sections 118 and 139 of the

N.I. Act.

28. The Hon'ble Apex Court in the case of Jain P. Jose versus

Santosh & Anr. reported in 2022 Livelaw SC 979 has also

referred the case of T. Vasanthakumar Vs. Vijaykumari

reported in (2015) 8 SCC 378, Rangappa vs. Sri Mohan

reported in (2010) 11 SCC 441 and Kalamani Tex and

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Another vs. P. Balasubramanian reported in (2021) 5 SCC

283 and held that the presumption under Section 139 includes

a presumption that there exists a legally enforceable debt or

liability. However, the presumption under Section 139 of the

N.I. Act is rebuttable and it is open to the accused to raise a

defence wherein the existence of a legally enforceable debt or

liability can be contested.

29. In view of the above settled propositions of law as laid down by

the Hon'ble Apex Court, the legal presumption in regard to the

issuance of the cheque and also the legally recoverable debt or

liability, in view of the evidence adduced on behalf of the

complainant to prove the complaint case, the burden of

proof which was shifted upon the accused to rebut this

presumption of liability of Section 118 and 139 of N.I.

Act shifted on the accused but the same has not been

discharged at all. The accused has taken the defence

under Section 313 Cr.P.C. but has not produced himself

in evidence there being no evidence, the compliant case

is found proved beyond all reasonable doubt on behalf

of the complainant.

30. The finding recorded by the learned trial court as well as the

learned appellate court holding the appellant guilty for the

offence under Section 138 N.I. Act is not based on any

perversity and both the judgments passed by the trial court and

appellate court needs no interference and the same are

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affirmed. Accordingly, this criminal revision is hereby

dismissed.

31. The petitioner is on bail and his bail bonds are cancelled and he

is directed to surrender before the court below to serve out the

remaining sentence.

32. Let a copy of this order be communicated to the court below

forthwith for necessary compliance.

(Subhash Chand, J.)

Rohit/AFR