Jharkhand High Court

Rakesh Kumar Sinha vs The State Of Jharkhand on 19 February, 2024

Author: Subhash Chand

Bench: Subhash Chand

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Criminal Revision No.147 of 2023
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Rakesh Kumar Sinha, son of late Ramesh Chandra Sinha, R/o Hari Babu Colony, P.T.C. Road, P.O. & P.S. Sadar, District Hazaribag...... Petitioner Versus

1. The State of Jharkhand

2. Baldeo Prasad Mehta, son of Ram Lal Mahto, R/o Village Dumraon, P.O. & P.S. Ichak, District Hazaribag ..... .... Opposite Parties

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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner            : Mr. R.S. Mazumdar, Sr. Advocate
                                Mr. Lukesh Kumar, Advocate
For the State                 : Mr. Arup Kumar Dey, Advocate
For the Opp. Party No.2       : Mr. Indrajit Sinha, Advocate
                                Mrs. Jyoti Nayan, Advocate
                                Mr. Prem Piyari, Advocate
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C.A.V. on: 18/01/2024                          Pronounced on:19/02/2024

1. This Criminal Revision has been preferred against the impugned

judgment dated 10.03.2021 passed by the learned District & Sessions Judge-

VII, Hazaribag in Criminal Appeal No.92 of 2017, whereby and whereunder,

dismissed the appeal and affirmed the judgment of conviction and the order

of sentence dated 26.07.2017 passed by the learned Judicial Magistrate, 1st

Class, Hazaribag in C.P. Case No.895 of 2014 corresponding to T.R. Case

No.3590 of 2017, wherein the petitioner had been found guilty for the

offence under Section 138 of the N.I. Act and had been sentenced to undergo

RI for one year and directed to pay Rs.24,00,000/- as compensation to the

complainant exercising the power under Section 357(3) of the Code of

Criminal Procedure.

2. The brief facts leading to this Criminal Revision are that the

complainant-opposite party Baldeo Prasad Mehta had filed a complaint with

these allegations that he had good terms with the accused Rakesh Kumar

Sinha, who wanted to sell his land, so he approached to the complainant and

complainant became ready to purchase the same and Rs.20 lakhs was given

in advance. Despite having taken the advance amount of Rs.20 lakhs from

the complainant, the accused had sold the same to another person. When the

complainant made demand to refund the money, he issued two cheques each

of Rs.10 lakhs dated 06.03.2014 and 08.03.2014 bearing cheque Nos.

610799 and 610800 respectively. The complainant presented both the

cheques for encashment in the account of Bank of India, Hazaribag but both

the cheques were returned dishonored on 27.03.2014 on account of

insufficient funds in the account of the drawer of the cheques. The

complainant sent the legal notice to the accused on 07.04.2014. On

30.04.2014, the petitioner-accused asked to the complainant why the legal

notice was sent to him, on which, he further promised to return the said

amount of the cheque by 07.05.2014. Still the accused failed to comply his

promise then the complaint petition was filed against the petitioner-accused.

3. The complainant filed affidavit under Section 200 of the Code of

Criminal Procedure, on the basis of the same, the accused Rakesh Kumar

Sinha was summoned for the offence under Section 138 of the N.I. Act.

4. The substance of accusation was recorded of the accused Rakesh

Kumar Sinha under Section 251 of the Code of Criminal Procedure by the

learned trial Court and the same was explained and read over to him, who

denied the same and pleaded not guilty and claimed to face the trial.

5. On behalf of the complainant examined C.W.-1, Baldeo Prasad

Mehta himself and in documentary evidence filed Exhibit-1, Cheque

No.610799 dated 06.03.2014 issued by the accused; Exhibit-1/1, return

memo of cheque No. 610799 dated 27.03.2014; Exhibit-2, Cheque

No.610800 dated 08.03.2014 issued by the accused; Exhibit-2/1, return

memo of Cheque No.610800 dated 27.03.2014; Exhibit-3, demand notice

dated 07.04.2014; Exhibit-3/1, postal receipt No. RJ044803045IN dated

07.04.2014; Exhibit-4, signature of complainant's advocate on the complaint

petition and; Exhibit-5, delivery report of the notice issued by Postal

Department.

6. The statement of accused-petitioner under Section 313 of the Code of

Criminal Procedure was recorded, in which, he denied the evidence against

him in the complaint case and stated himself to be innocent and he did not

adduce any defence evidence.

7. The learned Trial Court after hearing the rival submissions of both the

parties, passed the impugned judgment of conviction, convicted the

petitioner-accused under Section 138 of the N.I. Act and sentenced him to

undergo RI for one year vide order dated 26.07.2017 for the offence

under Section 138 of the N.I. Act and the convict was directed to pay

Rs.24 lakhs to the complainant.

8. Aggrieved from the impugned judgment of conviction and the order

of sentence dated 26.07.2017, the convict Rakesh Kumar Sinha preferred

Criminal Appeal No.92 of 2017 in the Court of learned District &

Additional Sessions Judge-VII, Hazaribag, which was dismissed vide

judgment dated 10.03.2021 and affirmed the judgment of conviction

and the order of sentence dated 26.07.2017 passed by the learned trial

Court.

9. Aggrieved from the impugned judgment of conviction and the order

of sentence dated 26.07.2017 passed by the learned trial Court and the

impugned judgment dated 07.03.2021 passed by the learned Appellate

Court, the instant Criminal Revision has been directed on behalf of the

petitioner-convict on the ground that both the learned Courts below have

passed the judgment on the wrong appreciation of the evidence. The learned

Courts below have not taken into consideration that from the legal notice

itself no liability arises for the alleged cheque. No other kind of document

was ever executed for the alleged liability and the learned trial Court relied

upon the oral testimony of the complainant. Neither the alleged cheques

were issued by the petitioner-convict nor the said cheques were filled by

him. The learned Court below raised the presumption under Section 139 of

the N.I. Act in a wrong way. The complaint was also filed after lapse of

statutory period, as such, the complaint should have been dismissed by the

learned Courts below. In view of the above, prayed to allow this Criminal

Revision and set aside the impugned judgment of conviction and the order of

sentence passed by the learned trial Court, which was affirmed by the

learned Appellate Court.

10. I have heard the learned senior counsel assisted by the learned counsel

for the petitioner, learned APP for the State and learned counsel for the

opposite party No.2 and perused the materials available on record.

11. For the disposal of this Criminal Revision, one point of determination

is being framed:

"(i) Whether complaint filed by the complainant was not legally maintainable?"

12. Learned senior counsel for the petitioner-revisionist has contended

that the cheques were never issued by the petitioner for any legally

recoverable debt or liability and no transaction in regard to selling any land

took place, as such, the question of issuing both the cheques for the amount

of Rs.20 lakhs, which is alleged to have been given in advance does not

arise. Indeed, both the cheques were taken by the complainant in good faith,

which were blank and the contents of amount in cheques was also filled by

the complainant. The learned trial Court as well as the learned Appellate

Court did not appreciate this plea raised on behalf of the petitioner-convict.

13. Per contra, the learned counsel for the opposite party No.2/

complainant and the learned APP for the State vehemently opposed the

contentions made by the learned counsel for the petitioner and contended

that there is no denial on the part of the petitioner-convict in regard to the

signature of him on both the cheques. So far as the plea taken by the

petitioner that both the cheques were blank only the suggestions were given

to the complainant C.W.-1, Baldeo Prasad Mehta to this effect, but no

defence evidence was adduced. This suggestion is also given that the

cheques were issued in good faith but no evidence to that effect has been

adduced on behalf of the petitioner-convict to rebut the presumption under

Sections 118 and 139 of the N.I. Act. While the complaint case is proved

beyond reasonable doubt from the evidence on record, contended to dismiss

this Criminal Revision.

14. Before appreciating the evidence on record, it would be relevant to

reproduce the certain statutory provisions of the Negotiable Instruments

Act, 1881.

14.1 Section 118 of the Negotiable Instruments Act, 1881 reads 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 thereon;

(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."

14.2 Section 138 of the Negotiable Instruments Act, 1881 reads as under:

"Section 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 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 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, 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."

14.3 Section 139 of the Negotiable Instruments Act, 1881 reads as under:

"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."

14.4 Section 142 of Negotiable Instruments Act, 1881 reads as under:

"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

(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.

15. As per the allegations made in the complaint petition, two cheques

were issued by the petitioner-convict in favour of the complainant- opposite

party No.2 for the liability of payment of amount of Rs.20 lakhs, which were

given by the opposite party No.2/ complainant to the petitioner-convict for

executing sale deed in his favour in regard to the land.

15.1 On behalf of complainant/ respondent in documentary evidence filed

two original cheques i.e. Cheque No.610799 dated 06.03.2014 for the

amount of Rs.10 lakhs and another i.e. Cheque No.610800 dated 08.03.2014

is also of Rs.10 lakhs United Bank of India, both cheques were in favour of

the complainant Baldeo Prasad Mehta, which are signed by the petitioner

Rakesh Kumar Sinha, both the cheques are account payee of United Bank of

India. The complainant-opposite party No.2 presented both the cheques for

encashment, which were returned on 27.03.2014 with the objection of funds

insufficient. The return memo of cheque No.610799 and Cheque No.610800

are on record filed by the complainant, which are Exhibit-1/1 and 2/1. The

notice, which was sent by the complainant is dated 07.04.2014 bears

signature of Baldeo Prasad Mehta and also the signature of his Advocate Mr.

Ajay Kumar.

15.2 From perusal of this notice, it is found that the petitioner Rakesh

Kumar Sinha is made liable to pay the amount of Rs.20 lakhs of sale rupees,

for which, two cheques each of Rs.10 lakhs bearing Check Nos.610799

dated 06.03.2014 and 610800 dated 08.03.2014 were issued by Rakesh

Kumar Sinha and the same were dishonored vide return Memo dated

27.03.2014 on account of insufficient funds in the account of drawer of the

cheque. The postal receipt sending the notice is Exhibit-3/1 dated

07.04.2014. Notice delivery report issued by the Postal Department is

Exhibit-5, which shows that the notice was received by Rakesh Kumar

Sinha on 10.04.2014 and this complaint was filed on 15.05.2014.

15.3 The complainant Baldeo Prasad Mehta examined himself as C.W.-1.

In cross-examination, this witness has stated that two cheques were given to

him. The land was shown to him, in consideration thereof, the said amount

was paid by him, but the same land was sold by him to another person. No

document was reduced in writing in regard to the sale of land. This witness

denied the suggestion that on account of friendship with Rakesh Kumar

Sinha, he had taken two cheques in good faith and filed this case.

15.4 In view of the evidence on record, it is found that two cheques dated

06.03.2014 and 08.03.2014 were presented by the complainant before his

banker and the same were dishonored on 27.03.2014, as such, both the

cheques were presented by the complainant within a period of six

months from the date of issuance of the cheques. Since both the cheques

were dishonored on 27.03.2014 and after receiving of the return memo

from the concerned bank for both the cheques, the complainant had

issued the notice to the accused on 07.04.2014, as such, the same is also

within 30 days in view of the proviso (a) of Section 138 of the N.I. Act

and this notice was received by the accused on 10.04.2014 as evident

from Exhibit-5 and the accused failed to make the payment in

compliance of the notice within 15 days from the date of receipt of

notice by 24.04.2014 in view of the proviso (c) of Section 138 of the N.I.

Act. The cause of action to file the complaint arose to the complainant on

24.04.2014 and the complaint should have been filed within thirty days

from the date of arising cause of action to file the complaint, which has arose

in view of the proviso (c) of Section 138 of the N.I. Act and in view of sub

clause 1(b) of Section 142 of the N.I. Act and this complaint was filed by

the complainant on 15.05.2014, as such, the complaint was also filed

within prescribed period of 30 days from the date of arising cause of

action to file the complaint.

15.5 In view of the oral examination of complainant C.W.-1 and the

documentary evidence filed on behalf of him, the prosecution case is proved

beyond reasonable doubt and the presumption under Section 118 of the

N.I. Act also arises in favour of the complainant in regard to the

consideration of the cheque, the time of acceptance of cheque and also

the time of transfer of the cheque.

15.6 Likewise, the presumption under Section 139 of the N.I. Act also be

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taken in favour of the complainant that the holder of the cheque received the

cheque of the nature referred under Section 138 of the N.I. Act for

discharge in whole or in part of any debt or other liability. The

presumption under Sections 138 and 139 of the N.I. Act both are

rebuttable presumption.

15.7 In the case in hand the petitioner/ convict/ accused has admitted his

signature on the cheque and stated that the same were taken from him

by the complainant in good faith being on friendly relation. The

complainant has stated that both these cheques were issued by the accused

to discharge the liability of the payment of Rs.20 lakhs, which was paid

by him to purchase the land; but the same land was sold by the accused to

any other person though there is no written document to this effect only the

oral evidence has been adduced by the complainant examining himself as

C.W.-1. This oral evidence is not rebutted by the petitioner/ accused/

convict by adducing evidence even to rebut the presumption under

Section 118 and 139 of the N.I. Act. Though the petitioner/ accused/

convict, in cross-examination of complainant C.W.-1, this question was put

up that no income tax return was filed by the complainant; but the same fact

is not rebutted by the accused/ convict/ petitioner by adducing evidence in

rebuttal.

16. The Hon'ble Apex Court in the case of Oriental Bank of Commerce

Vs. Prabodh Kumar Tewari reported in 2022 Live Law (SC) 714 held that

drawer of a cheque is liable even if details of the cheque was filled by some

other person in writing; the experts opinion cannot rebut the presumption

under Section 139 of the N.I. Act. Paragraph No.17 reads as under:

"17. For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other

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person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability."

16.1 The Hon'ble Apex Court in the case of Yogesh Jain Vs. Sumesh

Chandra reported in 2022 Live Law (SC) 879 held that once the cheque is

issued and upon getting dishonored statutory notice is issued, it is accused to

dislodge the legal presumption available under Section 118 and 139 of the

N.I. Act. Relevant paragraph reads as under:

"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 resply of the N.I. Act. Whether the cheque in question had been issued for a time barred debt or not, itself prima facie, is a matter of evidence and could not have been adjudicated in an application filed by the accused under Section 482 of the CrPC."

16.2 The Hon'ble Apex Court in the case of Jain P. Jose Vs. Santosh

reported in 2022 Live Law (SC) 979 held that the presumption under Section

139 includes presumption that there exists legally enforceable debt or

liability. However, the presumption is rebuttable and it is open to the accused

to raise defence. Relevant paragraph reads as under:

"This decision, refers to an earlier judgment of this Court in "Rangappa vs. Sri Mohan" (2010) 11 SCC 441, which elucidating on the presumption under Section 139 of the N.I. Act, observes that this 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."

16.3 The same view was taken by the Hon'ble Apex Court in the case of T.

Vasant Kumar Vs. Vijay Kumari reported in (2015) 8 SCC 378. Paragraph

No. 8 reads as under:

"8. This Court has held in its three-Judge Bench judgment in Rangappa v. Sri Mohan (2010) 11 SCC 441 "The presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course

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in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the respondent complainant."

16.4 The Hon'ble Apex Court in the case of Raja Ram Srimulu Naydu (D)

Vs. Maruthachalam (D) reported in 2023 Live Law (SC) 18 held that

Section 139 standard of proof for rebutting presumption is that of

preponderance of probabilities. Once execution of the cheque is admitted

Section 139 of the N.I. Act mandates that the cheque was for discharge

of debt or other liability. Presumption under Section 139 is rebuttable and

the onus shifts upon the accused to prove the probable defence. Standard of

proof is preponderance of probabilities. Paragraph No.13 reads as under:

"13. It can thus be seen that this Court has held that once the execution of cheque is admitted, Section 139 of the N.I. Act mandates a presumption that the cheque was for the discharge of any debt or other liability. It has however been held that the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. It has further been held that to rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. It has been held that inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely."

17. In order to rebut both these presumptions on behalf of the convict-

petitioner, no oral or documentary evidence was adduced. The only defence,

which has been taken by the petitioner-convict during trial was that the

cheques were issued in good faith because of friendship of him with the

complainant. This suggestion was also given that in regard to sale of the

land, no document was executed and there was no alleged liability for

issuance of cheques. To this effect, on behalf of the petitioner-convict, no

evidence has been adduced to rebut both the presumption sunder

Sections 118 and 139 of the N.I. Act and also the evidence adduced by

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the complainant oral and documentary even on the touchstone of

preponderance of probabilities. The statement of the petitioner-convict