Maguni Charan Jena vs State Of Odisha And Another
2023 Latest Caselaw 2479 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLREV No.1511 of 2008

           Maguni Charan Jena                   ....          Petitioner
                                            Mr. B.K. Mohanty, Advocate

                                       -versus-

           State of Odisha and another            ....        Opp. Parties
                                                  Mr. M.K. Mohanty, ASC

                    CORAM:
                    JUSTICE CHITTARANJAN DASH
                   DATE OF JUDGMENT : 28.03.2023
Chittaranjan Dash, J
1. Heard learned counsel for the parties.

2. The legality, propriety and correctness of the judgment and order
dated 29th November, 2008 passed by the learned Second Additional
Sessions Judge; Cuttack in Criminal Appeal No.66 of 2008 arising out of
I.C.C. Case No.62 of 2005 passed by the learned S.D.J.M., Cuttack has
been under challenge in this revision. The Petitioner having found guilty
in the offence under section 138 of the Negotiable Instruments Act
(hereinafter called the N.I. Act) sentenced to pay compensation of
Rs.3,46,000/- i.e. double the cheque amount to be paid to the
complainant and to undergo S.I. for two years.

3. The background facts of the case are that the Respondent No.2,

namely, Kailash Chandra Sahu, a businessman by profession having a DTP Center at Pramila Mandap Market Complex, Madhupatna, Cuttack was in search of a piece of land at Madhupatna area. He requested his friend, namely, one Lingaraj Dash who was serving at District Audit

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Office, Cuttack. The said Lingaraj Dash introduced the Petitioner who was working as a sub-staff in the Union Bank of India, Madhupatna Branch, Cuttack. In course of discussion between the Petitioner and Respondent No.2, the Petitioner revealed that he has a land behind Pramila Mandap, Market Complex which he wanted to sell. To build up the confidence in the Respondent No.2, the Petitioner showed the documents such as Record of Right (ROR) of the land in question. The Petitioner also got introduced to the Branch Manager, Union Bank of India, Madhupatna Branch where the Petitioner was serving as a sub- staff. After introduction, the Petitioner also helped the Respondent No.2 in arranging a home loan following which Respondent No.2 opened a pass book in the said branch of the Union Bank of India. In lieu of the purchase of the piece of land as proposed by the Petitioner to be sold out to the Respondent No.2, the Respondent No.2 paid a sum of Rs.1,73,000/- to the Petitioner as part consideration in presence of his friend Lingaraj Dash. Subsequently, the Petitioner did not comply the assurance given by him to the Respondent No.2 by selling out the land. He also played hide and seek with Respondent No.2. However, as there was no chance of the land being conveyed in favour of Respondent No.2 by the Petitioner he wanted the money given to the Petitioner to be refunded. Having agreed to refund the money, the Petitioner issued four cheques i.e. cheque No.033504, dated 23.08.2004 for Rs.50,000/-, No.033502, dated 10.09.2004 for Rs.6,500/- , No.33511 dated 02.10.2004 for Rs. 90,000/- and No.33503, dated 29.10.2004 for Rs.26,500/- drawn on Union Bank of India, Madhupatna Branch towards refund of the part consideration taken by the Petitioner. Respondent No.2 presented the Cheques bearing No.033354 and 033502 with his banker. His banker, the said Union Bank intimated that the cheques got dishonoured vide memo dated 17th November, 2004 and 24th November,

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2004 on the ground of "insufficient of funds" in the account of the Petitioner. After receipt of the intimation from the Bank, Respondent No.2 issued notice to the Petitioner through registered post dated 13th December, 2004 demanding the dishonoured cheque amount within the statutory period but the notice returned with endorsement "refused". The Petitioner having found committed the offence under Section 138 of the N.I. Act, Respondent No.2 moved a complaint before the learned S.D.J.M., Cuttack. The said complaint was registered vide I.C.C. Case No.62 of 2005 (TAN No.1061 of 2005). The Petitioner having appeared before the court faced the trial and took the plea that the cheques issued to the complainant was against purchase of the shop from the complainant and the complainant deceived him by presenting cheque and denied the plea advanced by the complainant as regards the issuance of cheque by him as against sale of the land in favour of Respondent No.2.

4. In course of evidence before the trial court while Respondent No.2 examined himself as the only witness (PW 1), the Petitioner examined two witnesses (DWs 1 and 2). While Respondent No.2 as complainant proved the documents vide Exts.1 to 13 whereas the Petitioner as accused proved no document in support of his plea.

5. Learned trial court upon adjudication of the matter having assessed the evidence led before it, found the Petitioner to have committed the offence under Section 138 of the N.I. Act, held him guilty there under and sentenced as mentioned above.

6. Being aggrieved by the impugned judgment and order, the Petitioner preferred Appeal before the learned Sessions Judge, Cuttack registered vide Criminal Appeal No.66 of 2008 which having transferred to the

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court of learned Second Additional Sessions Judge, Cuttack was heard and disposed of vide the impugned judgment. The learned Additional Sessions Judge having reassessed the evidence found the order of the learned S.D.J.M. to be in consonance with the law and evidence. The learned Appellate Court having concurred with the findings dismissed the Appeal against the Petitioner.

7. Being aggrieved with the judgment passed by the learned Addl. Sessions Judge, the Petitioner moved in the present, inter alia, challenging the judgment on the sole ground that there was no debt or liability against the Petitioner to be discharged in favour of Respondent No.2 by issuance of cheque and that those cheques were issued against the purchase of shop owned by Respondent No.2 at Dolamundai and as such the Petitioner is not liable in the offence under Section 138 of the N.I. Act and the impugned judgment being not in conformity with law are liable to be set aside.

8. In course of the hearing in the revision, the learned counsel for the Petitioner reiterated his plea and cited the decision in support of his contention. Learned counsel on behalf of Respondent No.2, on the contrary, submitted that the impugned judgment and order being in consonance with the law and evidence is legal and justified and requires no interference and prayed for dismissal of the revision.

9. On a meticulous analysis of the evidence it emerges that Respondent No.2 as complainant before the trial court has vividly narrated the fact constituting the complaint, the statutory compliance required to bring the complaint such as the manner in which the transaction took place, the amount and cheque, the cheque number, its value, the presentation of the cheque before his banker, the intimation received from his banker

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regarding dishonour of cheque, the statutory notice addressed to the Petitioner accused and its service. From the evidence it is crystal clear and has also not been disputed by the Petitioner that the statutory obligation required under Section 138 of the N.I. Act by the complainant has been complied and as such found proved.

10. Coming to the point of dispute as raised by the Petitioner to the effect that the cheques were not issued against a legally enforceable debt, this Court assessed the evidence laid by the Petitioner before the court in trial. No formidable evidence is found to have brought by the Petitioner during trial before the court to substantiate the plea propounded by him as regards the purpose for which the cheque was issued in favour of the complainant. On the contrary the presumption goes in favour of Respondent No.2/complainant under Section 139 of the N.I. Act that the cheques were issued only against a legally enforceable debt. The Apex Court in the matter of Vijay v. Laxman and another reported in (2013) 1 CJD (SC) 120 held as under:

"9. Having heard the learned counsels for the contesting parties in the light of the evidence led by them, we find substance in the plea urged on behalf of the complainant-appellant to the extent that in spite of the admitted signature of the respondent-accused on the cheque, it was not available to the respondent-accused to deny the fact that he had not issued the cheque in favour of the complainant for once the signature on the cheque is admitted and the same had been returned on account of insufficient funds, the offence under Section 138 of the Act will clearly be held to have been made out and it was not open for the respondent- accused to urge that although the cheque had been dishonoured, no offence under the Act is made out. Reliance placed by learned counsel for the complainant-appellant on the authority

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of this Court in the matter of K.N. Beena vs. Muniyappan and Anr. [1] adds sufficient weight to the plea of the complainant- appellant that the burden of proving the consideration for dishonour of the cheque is not on the complainant-appellant, but the burden of proving that a cheque had not been issued for discharge of a lawful debt or a liability is on the accused and if he fails to discharge such burden, he is liable to be convicted for the offence under the Act. Thus, the contention of the counsel for the appellant that it is the respondent-accused (since acquitted) who should have discharged the burden that the cheque was given merely by way of security, lay upon the Respondent/ accused to establish that the cheque was not meant to be encashed by the complainant since respondent had already supplied the milk towards the amount. But then the question remains whether the High Court was justified in holding that the respondent had succeeded in proving his case that the cheque was merely by way of security deposit which should not have been encashed in the facts and circumstances of the case since inaction to do so was bound to result into conviction and sentence of the Respondent/Accused.

11. In the instant case the initial burden having been discharged by the Respondent No.2/ complainant as regards the issuance of cheque was against discharge of legally enforceable debt, the presumption under Section 139 of the N.I. Act can very well be read in favour of Respondent No.2. Conversely, the same being not rebutted in any manner by the Petitioner, even an inference cannot be drawn that the transaction was towards the purchase of shop, thereby, goes completely in favour of Respondent No.2. In essence, it is apt to say that the plea taken by the Petitioner is otherwise for the purpose of the case only inasmuch as even after filing of the complaint by the Respondent No.2

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no such attempt has been made by the Petitioner resorting to the forum available under law insisting for specific performance of contract or for refund and damage against the payment made to the complainant on his failure to comply the promise, if at all. Consequently, the plea propounded by the Petitioner subsequent to the filing of the complaint is apparently to stall the proceeding initiated against him and as such cannot be said to be sufficient to dislodge the claim of the Respondent as required under the law. The decision cited by the learned counsel being factually distinguishable to the present case cannot be read in favour of the Petitioner so as to give him an advantage. Hence, ordered.

12. The impugned judgment being in conformity with the evidence and law requires no interference. In the result, the Revision being devoid of merit is dismissed but in the circumstance without any cost.

(Chittaranjan Dash) Judge

KC Bisoi /Secretary