The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Acquittal Appeal No. 15 of 2006 Trade Well Finance Limited, a company duly incorporated and registered under the Indian Companies Act, 1956 having its registered office at Radhika Mansion, Kunwar Singh Chawk, Judgsalai, PO and PS Jugsalai, Town Jamshedpur District Singhbhum East, being represented by its Lawful constituted attorney Sri Manoj Kumar Singh ...… Appellant Versus 1.The State of Jharkhand 2.Ramjee Prasad, son of Sri Mahabir Prasad, resident of E/300, Khutadih, Sonari, PO and PS Sonari, Town Jamshedpur, District Singhbhum East, …. ... Respondents State of Jharkhand CORAM: HON'BLE THE ACTING CHIEF JUSTICE For the Appellant For the Respondents
Legal Reasoning
: Mr. S. K. Lall, Advocate : None --------- Order No.14/Dated: 12th March 2024 This Acquittal Appeal seeks to challenge the judgment rendered on 26th July 2005 in Criminal Appeal No. 103 of 2004 by which the respondent no. 2 has been acquitted and the judgment dated 9th June 2004 in C/1 Case No. 223 of 2000 has been set-aside. 2. 2008. 3. This Acquittal Appeal was admitted vide order dated 7th January C/1 Case No. 223 of 2000 was filed by Trade Well Finance Limited under section 138 of the NI Act. The brief facts of the case are that the complainant-Trade Well Finance Limited (in short, Company) extended financial assistance to the respondent no. 2 to the tune of Rs. 1,78,000/- on 23rd February 1998, upon execution of various loan documents. As per the loan conditions, the respondent no. 2 was liable to make payment in seven monthly installments of Rs. 27,625/-. However, the respondent no. 2 failed to make payment of the instalments and, in respect thereof, on demand being made by the Company, the respondent no. 2 issued a cheque for Rs. 1,50,000/- which on presentation was dishonored and returned to him vide memo dated 31st January 2000. 4. In the trial three witnesses were examined in support of the charge against the respondent no. 2, out of whom Manoj Kumar Singh who claimed himself power of attorney holder on behalf of the Company 2 Acquittal Appeal No. 15 of 2006 tendered evidence as CW2. The trial Court by a judgment dated 9th June 2004 held the respondent no. 2 guilty. However, in Criminal Appeal No. 103 of 2004, the appellate Court set-aside the judgment passed in TR No. 402 of 2004 corresponding to C/1 Case No. 223 of 2000 on the ground that the complaint petition at the instance of Manoj Kumar Singh who was not duly authorized constituted attorney of the Company was not maintainable and the prosecution case must fail. The appellate Court held that Manoj Kumar Singh not being the payee or the holder in due course of the cheque and, thus not covered under section 142 of the NI Act could not have been maintained the complaint petition without being duly authorized by the Company. 5. On a glance at the appellate judgment, it appears that in support of the complaint case the complainant laid documentary evidence such as Exts. 1, 2 and 3. However, no evidence as regards service of notice upon the respondent no. 2 was tendered during the trial. On the contrary, the period of limitation is counted on a suspicious plea that the notice which was sent on 7th February 2002 could have taken atleast seven days’ time to reaching the destination and adding 15 days more from that day the requirement under clause (c) to the proviso of section 138 of the NI Act stood satisfied. 6. Under clause (b) to proviso to section 138 of the NI Act, it is provided that the payee or the holder in due course of cheque shall make a demand by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by the Bank regarding return of the cheque unpaid. Under clause (c) it is provided that within 15 days of receipt of notice if the drawer of the cheque fails to make payment the complainant may be laid in the Court. 7. In “K. Bhaskaran v. Sankaran Vaidhyan Balan” (1999) 7 SCC 510 the Hon'ble Supreme Court held as under: “17. ….The conditions pertaining to the notice to be given to the drawer, have been formulated and incorporated in clauses (b) to (c) of the proviso to Section 138 of the Act. The said clauses are extracted below: “(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 fifteen 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 3 Acquittal Appeal No. 15 of 2006 due course of the cheque within fifteen days of the receipt of the said notice.” 18. On the part of the payee he has to make a demand by “giving a notice” in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such “giving”, the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days “of the receipt” of the said notice. It is, therefore, clear that “giving notice” in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address.” 8. In “Yogendra Pratap Singh v. Savitri Pandey” (2014) 10 SCC 713 the Hon'ble Supreme Court observed as under: “36. A complaint filed before the expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to Section 138 and upon such complaint which does not disclose the cause of action the court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the NI Act, that reiterates the position of the point of time when the cause of action has arisen, leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, in fact, elapsed. Therefore, a court is barred in law from taking cognizance of such complaint. It is not open to the court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of the NI Act, as noted in the judgment of this Court in Kusum Ingots & Alloys Ltd. and which we have approved, must be satisfied for a complaint to be filed under Section 138. If the period prescribed in clause (c) of the proviso to Section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under Section 138 of the NI Act.” 9. Although the judgment in C/1 Case No. 223 of 2000 has been set-aside by the appellate Court primarily for the reason that the complainant did not produce authorization from the company, suffice would be to indicate that the complaint case was instituted before expiry of the period provided under clauses (b) and (c) of the proviso to section 138 of the Negotiable Instrument Act, 1881 (in short, NI Act). 10. 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 4 Acquittal Appeal No. 15 of 2006 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. 11. In “Jaswant Singh v. State of Haryana” (2000) 4 SCC 484 the Hon’ble Supreme Court has observed as under: 21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable” it is a compelling reason for interference (see Shivaji Sahabrao Bobade v. State of Maharashtra). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat: (SCC p. 229, para 7) “While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then — and then only — reappraise the evidence to arrive at its own conclusions.” (See also George v. State of Kerala).” 12. For the aforementioned reasons, this Court is not inclined to interfere in the matter and, accordingly, Acquittal Appeal No. 15 of 2006 is dismissed. Tanuj (Shree Chandrashekhar, A.C.J.)