Wipro Limited vs Prasanna Kumar Baral
2023 Latest Caselaw 11811 Ori

                         IN THE HIGH COURT OF ORISSA AT CUTTACK

                                             C.R.A. No.174 of 1995

                     (In the matter of an application under Section 378(4) of the
                   Criminal Procedure Code.)

                   Wipro Limited, Banpur, Cuttack                ....         Appellant
                                                      -versus-
                   Prasanna Kumar Baral                          ....       Respondent

                   Appeared in this case:-
                         For Appellant            :                               None

                         For Respondent           :                               None

                    Appeared in this case:-

                    CORAM:
                    JUSTICE A.C. BEHERA

                                            JUDGMENT

Date of hearing : 12.09.2023 / date of judgment :29.09.2023

A.C. Behera, J. This is an appeal under Section 378(4) of the Cr.P.C., 1973, which has been preferred by the appellant against the judgment of acquittal of an accused from an offence under Section 138 of the N.I. Act, 1881 passed on dated 03.02.1995 in I.C.C. No.54 of 1993/ Trial No.1508 of 1993 by the learned S.D.J.M.(Sadar), Cuttack.

2. Due to the absence of the learned counsels of both the sides to argue the appeal, when this appeal was called for hearing, as per the dictum of the Apex Court in 1996 (II) OLR (S.C.)-216 : Bani Singh vrs. State of U.P., this appeal has been taken up for its final disposal on merit on perusal of the materials and evidence available in the record.

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3. The appellant and the respondent of this appeal were complainant and accused respectively before the learned trial court below, i.e., before the learned court below S.D.J.M.(Sadar), Cuttack in I.C.C. No.54 of 1993.

The I.C.C. No.54 of 1993 was filed by the complainant/appellant against the accused/respondent by stating in its complaint petition that, the complainant being a company was running its business having its Head Office at Bombay and its one Branch Office at Bhanpur in the district of Cutack. The accused is the proprietor of M/s. Premier Agency, Jaraka, Jajpur and used to purchase the articles from the Branch Office of the complaint and sale the same to his customers through his agencies. On 14.12.1992, the accused placed an order before the complainant for dispatching the articles. On that day, the complainant dispatched the articles to the accused as per invoice No.941 dated 14.12.1992 and the costs thereof was Rs.7,534.68 Paise. In order to satisfy the cost of the said articles, the accused issued a cheque bearing No.445278 dated 14.12.1992 to the complainant. The complainant presented that cheque on 15.12.1992 before its banker, i.e., State Bank of India, Industrial Estate Branch, Cuttack for collection, but, the said cheque was not honoured and the same was dishonoured due to insufficient funds in the account of the accused. So, the Bank of the complainant intimated the complainant about the same on dated 11.02.1993 through a cheque return memo. Thereafter, the complainant issued demand notice under Section 113(b) of the N.I. Act, 1881 to the accused through Registered Post on dated 23.02.1993 requesting the accused to pay the cheque amount within fifteen days. That, demand notice was received by the accused on dated 27.02.1993 when in spite of receiving that demand notice on 27.02.1993, the accused did not pay the cheque amount, then the // 3 //

complainant filed I.C.C. No.54 of 1994 before the learned court below being the complainant against the accused praying for penalizing the accused under Section 138 of the N.I. Act, 1881.

4. Having been noticed from the learned court below in I.C.C. No.54 of 1993, the accused contested the said case by taking the plea that, as he was continuing business transactions with the complainant, for which, the complainant had kept his some cheques for security purpose, but the complainant has utilized one of that cheques for the purpose of this case. So, this case against him (accused) is a false case. Further plea of the accused in his defence was that, he(accused) had never issued any cheque to the complainant for any debt or liability. Any demand notice under Section 138(b) of the N.I. Act, 1881 has not been sent or served on him (accused), but, he has been implicated into the case falsely.

5. In order to establish the aforesaid case against the accused, the complainant had examined two witnesses from its side as P.Ws.1 and 2, but, defence had examined none of its behalf. Both the witnesses of the complainant, i.e. P.Ws.1 and 2 are the Supervisors of the complainant- company.

After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the learned trial court below acquitted the accused from the offence under Section 138 of the N.I. Act vide judgment dated 08.02.1995 passed in I.C.C. No.54 of 1993 on the ground that, the complaint petition of the complainant against the accused was not maintainable under law due to the failure of proving the service of demand notice under Section 138(b) of the N.I. Act, 1881 on the accused.

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6. On being aggrieved with the aforesaid judgment of acquittal of the accused from an offence under Section 138 of the N.I. Act passed on 08.02.1995 in I.C.C. No.54 of 1993, the complainant had preferred this appeal under Section 378(4) of the Cr.P.C., 1973 being the appellant against the accused by arraying him (accused) as respondent after taking several grounds in its appeal memo.

7. In para no.(g) of the complaint petition, it has been specifically indicated that, the accused had received the demand notice on 27.02.1993 but, in fact, no material or document was brought on behalf of the complainant into the record to establish about the receiving up of the so- called demand notice of the complainant by the accused on 27.02.1993.

8. P.W.1 has deposed in para no.3 of his deposition by answering to the questions of the learned defence counsel that, "they have not made any enquiry from the postal authority to know, if the demand notice dated 23.02.1993 was actually received by the accused or not."

Likewise another witness of the complainant, i.e., P.W.2 has deposed para No.2 of his deposition by answering to the questions of the learned defence counsel that, "he cannot say, whether any correspondence has been made on behalf of the complainant to the postal authority to ascertain, if the notice issued under Section 138 of the N.I. Act has actually been received by the accused or not."

9. When it has been specifically stated in the complaint petition that, the so-called demand notice, which was said to have been issued by the complainant to the accused was received by the accused on 27.02.1993, to which the accused has flatly denied by taking the plea that, no demand notice was issued to him and he has not received any demand notice, then at this juncture, it was obligatory on the part of the complainant to // 5 //

establish firmly by bringing materials into the record that, the accused had received the so-called demand notice on 27.02.1993. But, no such material has been placed in the record on behalf of the prosecution/complainant to show that, the accused had received that so- called demand notice on 27.02.1993. Rather, the above evidence of the witnesses of the complainant, i.e., P.Ws.1 and 2 is going to show that, they have no knowledge at all, whether the accused had received the so- called demand notice issued under Section 138(b) of the N.I. Act. So, the above materials are going to show that, the findings and observations made by the learned trial court below about the non-proving of any service of demand notice under Section 138(b) of the N.I. Act on behalf of the complainant on the accused was not unreasonable. For which, the acquittal of the accused from the offence under Section 138 of the N.I. Act passed by the learned trial court below cannot be held as inacceptable under law.

On this aspect, it has been clarified by the Apex Court in (2003) 25 OCR(S.C.)-479 : Shakti Travel & Tours vrs. State of Bihar and another that, "N.I. Act, 1881 Section 138(b) and (c)-- "complainant not ascertaining that demand notice had been served on the accused, the complaint not maintainable."

Therefore, unless a notice is served in conformity with the proviso

(b) and (c) appended to Section 138 of the N.I. Act, 1881, the complaint petition filed by the complainant would not be maintainable under law.

10. It is settled propositions of law that, a judgment of an acquittal cannot be disturbed unless the findings of the learned trial court below are perverse or unreasonable. Because presumption of innocence is reinforced by an order of acquittal passed by the learned trial court below // 6 //

in favour of an accused. So, there is double presumption of innocence in favour of an accused after his acquittal. Because, firstly the presumption of innocence that is available to him (accused) under the fundamental principle of criminal jurisprudence that, every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of innocence is further reinforced/reaffirmed and strengthened by the court. Thirdly, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the findings of an acquittal recorded by the trial court. Therefore, the scope of interference in an appeal against an acquittal like this appeal at hand is very limited.

When, as per the observations made above, the reasons assigned by the learned trial court below acquitting the accused/respondent from an offence under Section 138 of N.I. Act, 1881 in the impugned judgment are neither perverse nor unreasonable, then, at this juncture, the question of making an interference with the judgment of acquittal passed by the learned court below through this appeal does not arise. So, there is no merit in the appeal of the appellant, the same must fail.

11. Therefore, the appeal filed by the appellant is dismissed on merit. Accordingly, the impugned judgment of acquittal passed by the learned trial court below on dated 08.02.1995 in I.C.C. No.54 of 1993 / Trial No.1508 of 1993 is confirmed.

12. Accordingly, the appeal is disposed of finally.

( A.C. Behera ) Judge Orissa High Court, Cuttack The 29th of September, 2023/ Jagabandhu, P.A.