The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Acquittal Appeal (S.J) No. 28 of 2011 Navin Kumar Pathak, s/o Sri Nand Kishore Pathak, r/o village -Gola Road, PO & PS-Ramgarh Cantt, District-Ramgarh …………………….Appellant Vrs. 1.The State of Jharkhand 2. Binod Kumar Rai, s/o Sri Sitab Rai, r/o Mauza-Hadis, PO & PS-Gomia, District-Bokaro …. Respondents CORAM: HON’BLE THE ACTING CHIEF JUSTICE --------- For the Appellant For the Respondents
Legal Reasoning
--------- : Mr. Ajit Kumar, Advocate : Mrs. Vandana Bharti, APP --------- Order No. 15 /Dated: 12th March 2024 This acquittal appeal is directed against the judgment dated 18th August 2009 passed by the Judicial Magistrate 1st Class in Complaint Case No. 44 of 2005; the respondent no.2 was acquitted from the charge under section 138 of the Negotiable Instrument Act. 2. The appellant was granted leave to appeal by an order dated 23rd November 2011 passed in Cr.M.P. No. 1291 of 2009. 3. The facts of the present case in brief are that the respondent no.2 was a regular customer of the complainant and he used to purchase cement and iron from his shop. In such business transactions, Rs.1.5 lakhs became due on the respondent no.2 for which he issued three cheques each for Rs. 50,000/- dated 10th June 2004, 15th June 2004 and 21st June 2004. The complainant presented these cheques in the Central Bank of India, Ramgarh but those were returned with a note “insufficient fund” on 9th August 2004. The complainant then sent legal notice on 20th August 2004 and after receiving the notice the respondent no.2 approached the complainant with a request for some time for arranging money but he failed to pay the due amount. The complainant again presented the cheques on 2nd December 2004 in the bank but this time the cheques were returned on 3rd December 2004 with a note “stop payment”. Therefore, the petitioner issued another legal notice on 10th December 2004 and, on the failure of the respondent no.2 to pay the due amount, the present case was instituted. 1 Acquittal Appeal (S.J) No.28 of 2011 4. The Court of Judicial Magistrate 1st Class, Hazaribagh after carefully scrutinizing the evidence on record observed that the three cheques given by the respondent in the name of the complainant were bounced and the information regarding the same was sent to the respondent no.2 through a legal notice but the complaint case was filed beyond the period of limitation. 5. The learned Judicial Magistrate has held as under: “(10) I have carefully scrutinized all the evidences and found that it is admitted fact that the three cheques 1.3. cheque no. 0243675, 0243674 & 0243670 i.e. Ext. 1, 2 & 3 is given by accused in the name of complainant i.e Naveen Kumar Pathak. According to complainant, he presented the said cheque in bank but the same were bounced. According to complaint petition, information regarding bouncing of cheques was received on 9.08.04 than 20.08.04 a legal notice was sent. Legal notice dated 20.8.04 is proved as Ext.6, and further evidence on record that again the said cheque was presented in bank and again the cheque were bounced as the notice regarding the bouncing of cheque were received on 3.12.04 then complainant again issued legal notice on 10.12.04 and when the accused failed to fulfill the demand this case was instituted. I have perused the entire record and found that from the evidence it is coming that the cheque was presented twice and the notice was also issued twice. According to evidence, I found that first time the cheque was presented before 9.08.04 as because according to para-4 of the complaint petition, the information regarding the bouncing of cheque was received on 9.8.04 then a legal notice was issued on 20.8.04. The legal notice dt. 20.8.04 which is proved as Ext.6 totally proved that a demand was made by the accused regarding the bouncing of cheque. In the case, it may be presumed that the said notice we received to accused upto 01.9.04, so after the expiry of 15 days 15.9.04 to 15.10.04, the complainant had cause of action to file this case because as per N.I Act. Once the notice has been issued within time the cause of action from the First notice. But this case was filed on 10.01.05 after a long-long delay. So I am in the opinion that there is a too much delay in filing of the case and during trial complainant failed to explain the delay in filing of the case. So I am in the opinion that the complainant failed to fulfill all requriment to convict the accused U/s 138 N.I. Act. (11) Considering these all above evidences facts & circumstances, I am in the opinion that the prove complainant totally failed to prove charge against the accused U/s 138 N.I Act. (12) Accordingly, the accused is acquitted from the charge levelled against him and he is also discharged from the liabilities of his bail bond.” 6. Section 138 of the Negotiable Instruments Act, 1881 is reads as under: “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 extend 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— 2 Acquittal Appeal (S.J) No.28 of 2011 (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. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.” 7. In “MSR Leathers v. S. Palaniappan” (2013) 1 SCC 177 the Hon’ble Supreme Court held as under:
Decision
“35. In the result, we overrule the decision in Sadanandan case and hold that the prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138 of the Negotiable Instruments Act. …..” 8. In view of the law laid down in “MSR Leathers” the trial Court’s judgment is patently wrong. Still, this Court is not inclined to interfere in the matter and the reason is that no proof of the service of 2nd legal notice was produced by the petitioner-complainant. On the basis of the evidence tendered during the trial, this is also not possible to raise a presumption on demand service of legal notice upon the opposite-party. 9. In “Rahul Builders v. Arihant Fertilizers & Chemicals” (2008) 2 SCC 321 the Hon’ble Supreme Court held as under: “10. Service of a notice, it is trite, is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main section would not. Unless a notice is served in conformity with proviso (b) appended to Section 138 of the Act, the complaint petition would not be maintainable. Parliament while enacting the said provision consciously imposed certain conditions. One of the conditions was service of a notice making demand of the payment of the amount of cheque as is evident from the use of the phraseology “payment of the said amount of money”. Such a notice has to be issued within a period of 30 (sic 15) days from the date of receipt of information from the bank in regard to the return of the cheque as unpaid. The statute envisages application of the penal provisions. A penal provision should be construed strictly; the condition precedent wherefor is service of notice.…” 10. In “Ashok Shewakramani v. State of A.P.” (2023) 8 SCC 473 the Hon’ble Supreme Court held as under: “7. In fact, the service of notice of demand is a condition precedent for filing a complaint in view of clause (c) of Section 138 of the NI Act. This is one ground on which the complaint must fail.” 3 Acquittal Appeal (S.J) No.28 of 2011 11. The powers of the High Court under section 378 of the Code of Criminal Procedure are very wide and acting as an appellate Court the High Court may re-appreciate the evidence, record its independent findings and may come to a different conclusion. The provisions under the Code of Criminal Procedure do not put any limitation over the powers of the appellate Court in dealing with the appeal against acquittal. However, as a rule of prudence certain restraints have been prescribed. 12. In “Chandrappa v. State of Karnataka” (2007) 4 SCC 415 the Hon’ble Supreme Court has observed as under: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him 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 his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 13. In view of the aforesaid discussions, Acquittal Appeal (S.J.) No. 28 of 2011 is dismissed. (Shree Chandrashekhar, A.C.J.) sudhir 4 Acquittal Appeal (S.J) No.28 of 2011