Smt. Sikha Samuel @ Shikha Samuel, wife of Shri Samson Samuel, resident of N-133/3 v. 1. The State of Jharkhand 2. Shambhu Dayal, son of late G.S. Prasad, resident
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1421 of 2016 Smt. Sikha Samuel @ Shikha Samuel, wife of Shri Samson Samuel, resident of N-133/3, P.O. Plaza, P.S. Telco, Town Jamshedpur, District East Singhbhum Petitioner … … Versus 1. The State of Jharkhand 2. Shambhu Dayal, son of late G.S. Prasad, resident of Holding No. 289, Bhalubasa, P.O. and P.S. Sitaramdera, Town Jamshedpur, District East Singhbhum … … Opp. Parties CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the State For the O.P. No. 2 07/22nd August 2024
Legal Reasoning
--- : Mr. Prabhash Kumar, Advocate Mr. Ganesh Ram, Advocate Mr. T. Kabiraj, Advocate Mr. Manish Sharma, Advocate : Mr. Manoj Kumar Mishra, Advocate : Mr. Arun Kumar Pandey, Advocate --- 1. 2. Heard the learned counsel for the parties. This revision application has been filed against the judgment dated 28.07.2016 passed by the learned Additional Sessions Judge-IV, Jamshedpur in Criminal Appeal No. 173 of 2012 whereby the learned court has affirmed the judgment of conviction and order of sentence dated 08.06.2012 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur in C/1 Case No. 51 of 2009. The learned trial Court has convicted the petitioner for offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘N.I. Act’) and sentenced the petitioner to undergo simple imprisonment for a period of six months and has been further directed to pay a sum of Rs. 10,50,000/- by way of compensation in terms of Section 357(3) of Cr.P.C. 3. The learned counsel for the petitioner, while assailing the impugned judgments, has submitted that though both the learned courts have held the petitioner guilty for offence under Section 138 of the N.I. Act but they have failed 1 to properly consider the materials on record. He has further submitted that a plea was taken during the course of argument that the complainant had not followed the legal procedures for institution of this case and the witness examined has not supported the case story. It was further submitted that the accused had never taken the money as alleged and that she had never issued the cheque and no such bank account belongs to her. It was argued that once defence is able to rebut the presumption under N.I. Act, it is for the complainant to prove the case beyond all reasonable doubts. 4. The learned counsel has also submitted that the matter arises out of civil dispute and therefore conviction under Section 138 of the N.I. Act is not sustainable. 5. Learned counsel appearing on behalf of the opposite party No. 2 has opposed the prayer and has submitted that there are concurrent judgments holding the petitioner guilty for offence under Section 138 of the N.I. Act and the impugned judgements do not call for any interference. 6. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that as per the complaint petition, the complainant, the accused and her father, namely, Suhas Kumar Mahapatra had long family relation and said Suhas Kumar Mahapatra was in physical possession of certain property. In connection with sale of such property, an amount of Rs. 30,00,000/- was paid by the complainant, his wife and son to the accused and her father in a span of time. After full payment, the complainant requested the accused and her father to execute proper sale deed for the said holding but the accused deferred the execution on one pretext or the other. All of sudden in 2008, the complainant came to know that the said property was sold by the American Baptist Foreign Mission Society, America directly to M/s Shashank Nidhi Construction Private Limited. Thereafter, the complainant contacted the accused and her father and enquired about the same. The accused and her father agreed to return Rs. 55,00,000/- to the complainant, his wife and his son and consequently the accused in discharge of her liability and legal debt issued three account payee cheques each of Rs. 10,00,000/- bearing cheque dated 27.10.2008, 2 07.11.2008 and 17.11.2008 in the name of the complainant; one cheque of Rs. 10,00,000/- in the name of his wife and two cheques of Rs. 10,00,000/- and Rs. 5,00,000/- in the name of the his son with an assurance of their encashment covering the agreed amount of Rs. 55,00,000/-. The complainant presented the one cheque among them dated 17.11.2008 before the bank for encashment, but the said cheque got dishonoured by the said bank with a remark “Payment stopped by the drawer”. Thereafter, the complainant sent demand notice on 27.11.2008 by registered post on which the accused sent an evasive reply on 20.12.2008 but the accused did not pay the cheque amount, hence the complaint case was filed. 7. At the stage of trial only one witness was examined by the complainant, that is, the complainant himself. The complainant in his evidence had supported the complaint case and stated that the accused had issued the cheques towards discharge of her liability and the complainant had followed all the legal procedures in order to institute the complaint case. Among the documents of complainant, cheque dated 17.11.2008 for the amount of Rs. 10,00,000/- was exhibited as Exhibit-1; return memo dated 20.11.2008 was exhibited as Exhibit- 2; money receipt dated 30.04.2008 was exhibited as Exhibit-3; postal receipt was exhibited as Exhibit-4; notice dated 27.11.2008 was exhibited as Exhibit-5; reply dated 20.12.2008 was exhibited as Exhibit-6; bail bond dated 02.04.2009 was exhibited as Exhibit-7 and Vakalatnama dated 2.04.2009 was exhibited as Exhibit-8. After closure of evidence, the accused was examined for recording her statement and the accused was in total denial. 8. One witness was also examined from the side of the defence, namely, Vidya Bhushan as D.W-1, who is an advocate in civil court, Jamshedpur. He has stated during examination in-chief that he had purchased one form of right to information which was filled up by accused. After getting copy thereof he had gone to submit it before bank with the accused and had also got the receiving thereof. According to D.W.1 two postal orders were also purchased. Copy of such application is marked ‘X’ for identification and copy of postal orders (blank) are marked ‘Y’ for identification. A letter of S.B.I. dated 11.02.2012 issued in favour 3 of accused under R.T.I. Act has been marked ‘A’ as a public document in this case wherein it was stated that information sought relates to third party and is exempted from disclosure D.W. 1 has stated during cross examination that he has also put his signature upon the Vakalatnama executed in this case by accused. 9. The case of the defence was that accused had never issued the cheque and no such bank account belonged to the accused. It was also the case that the accused had never taken money from the complainant and therefore there was no occasion to return the same. 10. The learned trial court recorded that the accused had raised two main contentions as her defence. The first contention was that the acccused had never taken money as alleged by the complainant and the second was that she did not give any cheque to the complainant and the cheque was not drawn out of an account maintained by her. 11. The learned trial court considered the materials on record and rejected both the aforesaid contentions. 12. The learned trial court in paragraph 14 to 16 of its judgment observed that the cheque got dishonoured due to ‘payment stopped by drawer’ and further observed that the information Exhibit-A given by the bank under the Right to Information was very vague, inasmuch as, it was stated in that information that the bank could not disclose information relating to third party. The learned trial court also considered the Vakalatnama (Exhibit-8) executed by the accused in favour of her counsel which was an admitted signature and such signature resembled with the signature over the cheque Exhibit-1. The learned trial court ultimately rejected the contention of the petitioner that the cheque did not relate to her account. 13. So far as the contention of the accused that she had not received any money from the complainant is concerned, this aspect of the matter has also been considered by the learned trial court. It has been observed that admittedly the complainant was not stranger to the accused and signature over the money receipt of the accused was also not denied. The complainant had explained in his evidence as to how and when the money was given to the accused and her father, 4 and on the other hand the accused had not produced any evidence in defence so as to disprove the complainant’s version and the documents proved by him. The learned trial court thereafter referred to the nature of presumption under Section 139 of the Negotiable Instruments Act and observed that the defence raised by way of rebuttal must be probable and capable of being accepted by the court and ultimately rejected the argument of the accused in connection with denial of receipt of money from the complainant. The learned court recorded a finding that the complainant had discharged initial burden of his part and the defence raised by the accused by way of rebuttal evidence did not give any probable and acceptable defence in the eyes of law. 14. After rejecting the points raised by the defence and upon holding that the offence under Section 138 of the N.I. Act was made out, the learned trial court convicted the petitioner and sentenced accordingly. 15. The appellate court also considered the materials on record and recorded its finding in paragraph 9 in the following manner: - “9. In this case complainant has been examined as C.W.1. He explained in his evidence that accused and her father agreed to return Rs.55 lacs in lieu of money (Rs.30 lacs) taking during a long period of time. It was also explained by him that since 1999 onwards the complainant and his wife and son paid the amount to the accused and her father. It was also disclosed by him that among several cheques one cheque dated 17.11.08 for the amount of Rs. 10,00,000/- was issued by accused in favour of the complainant is Exhibit-1. Further it was explained that when the exhibit-1 was produced before the Bank it got dishonoured with remarks payment stopped by drawer. The information received by him on 22.11.08 after getting return memo (Exhibit-2) he sent a demand notice (Exhibit-5) to the accused through his lawyer by registered post and the said notice got served upon the accused and accused also sent the reply (Exhibit-6) through his lawyer dated 20.12.08. Postal receipt of demand notice is Exhibit-4. The case was instituted on 05.01.09. These facts and circumstances and the document proved by the complainant during his evidence and obviously necessary condition to institute a case U/s 138 of N.I. Act has been fulfilled by the complainant. During statement U/s 313 Cr.P.C. the appellant narrated that no cheque was issued by him. He denied the allegations and he explained that his advocate has replied of the notice. It is an admitted fact that Exhibit-6 was sent on behalf of the accused and it was reply of notice (Exhibit-5) which was addressed to Smt. Shikha Samuel, W/o Samson Samuel and her residence mentioned as N/133/3, P.O. Plaza, P.S. Telco, Jamshedpur and in the reply (Exhibit-6) same address of the accused was mentioned. During 5 statement U/s 313 Cr.P.C. accused narrated that his advocate has replied of the notice, hence it is admitted that notice was received by the accused and reply was also sent on her behalf. Exhibit-7 is bail bond filed by the accused and there also her husband name and address was mentioned as above. Similarly, in Vakalatnama (Exhibit- 8) name of the accused mentioned as Smits Samuel and husband name and address mentioned as above (mentioned in the aforesaid documents). In Vakalatnama it is clearly explained that it is for accused of Case No. C/1 Case No. 51/09 and the accused is Smt Samuel. There is no doubt that the said Vakalatnama, bail bond has been filed by other accused and signature on Vakalatnama, bail bond has resemblance with the signature over cheque (Exhibit-1), Address and husband name are same in the above mentioned documents. It is admitted fact that both parties are familiar with each other for several years. Complainant explained in her evidence that accused’s father name is Subhash Kumar Mohapatra and had long family relation. Regarding the name of father and previous relation no suspicion raised by the defence. From aforesaid fact it is clear that Shikha Samuel and Smita Samuel is the same person. It is possible that either the accused has both names or the complainant knows her as Shikha Samuel. Signature of accused over cheque was never been denied. Hon'ble Andhra High Court pleased to hold in Waterbase Ltd. Vs. Karuturu Ravendra, reported 2002 (2) Crimes 453 (AP)132; 2002(1)ALD CRI 689 the court has to draw presumption that drawer of the cheque has issued it for legally enforceable debt or liability unless the contrary is proved. Hon'ble Apex Court held in APPEAL (cri-1015 of 1999) K. Bhaskaran vs. Sankaran Vaidhyan Balan & others 1999 (4) Crimes 212 (SC) 162 burden of rebuttal is on the drawer i.e. on appellant in this case. In the case of Girishbhai Natuarbhai Patel vs. State of Gujarat, reported in 2006 Cri.L.J. 3378 (Guj) it has been held that the presumption u/s 139 is a statutory and mandatory presumption. The mandatory presumption can't be dislodged merely by bare explanation which may appear only plausible. It is a duty cast upon the accused to lead cogent and plausible evidence demolishing the presumption that the cheques were issued against existing liability or debt. However, defence argued that the cheque does not relate to her account. No sufficient evidence oral or documentary adduced by the defence to establish that the account relating to cheque has nowhere been communicated with the accused. Only Exhibit A has been brought by the defence in his favour. It is Exhibit-A which is the information got by the accused under right to information. Further photocopy of formate to get the said information has also been filed which has been marked ‘X’ for identification, this document has not been proved before the court but it is noticeable that in these documents neither husband name nor fathers name of the accused has been narrated by the accused. In reply (Exhibit-A) it has been mentioned by the Regional Manager, Central Public Information Officer, State Bank of India, Golmuri, Jamshedpur that information sought relates to third party and is exempted from disclosure under 6 section 8(e) and 8(j) of the provision of RTI Act. Obviously this document is not going to support the defence in any way. It is established fact that both parties are familiar to each other for last several years. Hon’ble High Court pleased to hold in its judgment Krishna P. Morajkar Versus Joe Ferro & Anr. Reported in 2013 CRI J(NOC) 572 Bombay pronounced date 19.07.2013 that – there is no provision of Income Tax Act which makes an amount not shown in income tax returns unrecoverable-Entire scheme of Income Tax Act is for ensuring that all amount are accounted for. If some amounts are not accounted for, person would be visited with penalty, or at times even prosecution under Income Tax Act, but it does not mean that borrower can refuse to pay amount which he has borrowed simply, because there is some infraction of provision of Income Tax Act-Infraction of provisions of Income Tax Act would be a matter between revenue and defaulter and advantage thereof cannot be taken by borrower- To pay that an amount not disclosed in income tax returns becomes irrecoverable would itself defeat provisions of section 138 of the Negotiable Instruments Act (Paragraph no. 26). Reasoning regarding cheque bounce mentioned in Exhibit-2 is payment stopped by the drawer. Hon'ble apex Court pleased to hold in criminal appeal no 1020 of 2010 Rangappa v. Sri. Mohan, 2010(11) SCC 441, AIR, that "stop payment" instruction sent by the accused to bank in respect of a cheque. Section 138 is attracted.” 16. This Court finds that there are concurrent findings recorded by both the courts after scrutinizing the materials on record. The point regarding presumption of cheque having been issued in connection with legally payable debt has been rightly considered by both the courts. The learned courts have rightly held that the defence had not raised any plausible and acceptable defence and did not discharge her onus even on the touchstone of the principles of preponderance of probabilities. The argument of the petitioner that the matter arises out of civil dispute does not help the petitioner in any manner as such arguments do not apply in the matter of offence relating to bouncing of cheques and once the ingredients of Section 138 of the N.I. Act is satisfied even in the circumstances arising out of civil liability, the accused has to be convicted. 17. This Court finds no illegality or perversity or material irregularity in the impugned judgments. The impugned judgments are well discussed and reasoned judgments. There is no scope for re-appreciating the materials on record and 7 coming to a different finding in revisional jurisdiction in absence of any perversity. 18. Consequently, this revision petition is dismissed. 19. Pending I.A., if any, is closed. 20. Let a copy of this order be communicated to the court concerned through ‘e-mail/FAX’. Mukul (Anubha Rawat Choudhary, J.) 8