Radha Kant Mishra son of Late Liladhar Mishra, resident of New Saket Nagar, Hinoo v. 1. The State of Jharkhand 2. Manjula Devi wife of Late S.P. Singh, resident
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 1482 of 2016 Radha Kant Mishra son of Late Liladhar Mishra, resident of New Saket Nagar, Hinoo, P.O. and P.S. Doranda, District Ranchi. … … Petitioner Versus 1. The State of Jharkhand 2. Manjula Devi wife of Late S.P. Singh, resident of Qr. No. J/56, Shyamli Colony, P.O. and P.S. Doranda, District Ranchi, Jharkhand … … Opposite Parties --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the State --- : Mr. Y. N. Mishra, Advocate : Mr. Abhay Kumar Tiwari, APP --- 10/30.08.2024 Heard the learned counsel for the petitioner and the opposite party- State. 2. This criminal revision petition has been filed for the following reliefs:
Legal Reasoning
"That the petitioner craves your Lordships indulgence for setting aside his conviction and sentenced dated 05.09.2016 passed by Sri Shyam Nandan Tiwari, the Learned Additional Judicial Commissioner-VIII, Ranchi, in Cr. Appeal No. 133 of 2013/ T.R. No. 08 of 2016, whereby and whereunder he has been pleased to dismiss the aforesaid criminal appeal and the judgment dated the Learned Judicial 08.05.2013 passed by Sri Manish, Magistrate, 1st Class, Ranchi, in Complaint Case No. 1727 of 2008 / T.R. No. 124 of 2013 is upheld and confirmed, whereby and whereunder the petitioner has been convicted under Section 138 of the Negotiable Instrument Act and has been sentenced to go simple imprisonment for 3 months for committing an offence under Section 138 of the Negotiable Instrument Act. He is also liable to pay a fine for a sum of Rs. 1,40,000/- (Rupees One Lakh Forty Thousand). The amount of fine shall be payable to the complainant by way of compensation. In default of payment of fine he shall be liable for S.I. for 3 months." 3. In spite of service of notice upon Opposite Party No. 2, she has not entered appearance. 4. The learned counsel for the petitioner, while assailing the impugned judgments, has submitted that though there are consistent findings recorded by both the learned Courts, but the impugned judgments suffer from perversity on account of two reasons: a. The notice regarding bouncing of cheque was not served upon the petitioner. b. The cheque-return memo indicated "refer to drawer for correct A/c No.". The learner counsel submits that the account number mentioned in the cheque was incorrect. 5.
Legal Reasoning
Learned counsel for the petitioner has referred to examination- in-chief of the complainant and has submitted that the complainant had stated that the complainant herself filled up the columns of the cheque and the accused had only put the signature. The learner counsel has also referred to the cheque and has submitted that the account number in the cheque at that point of time used to be filled up in hand. He submits that the account number mentioned in the cheque being incorrect and as the same was filled up by the complainant herself, under such circumstances, the cheque was not issued in connection with the correct account and therefore, the basic ingredient for constituting offence under Section 138 of the Negotiable Instruments Act was not made out. 6. The learned counsel has further submitted that it is not the case of the complainant that wrong account number was fraudulently given by the accused. 7. The learned counsel for the petitioner has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2008) 4 SCC 54 (Krishna Janardhan Bhat Vs. Dattatraya G. Hegde) and has submitted that the basic ingredients of Section 138 of Negotiable Instruments Act have been enumerated in paragraph 29 of the said judgment, which are:- (i) There is a legally enforceable debt, (ii) The cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt, and 2 (iii) The cheque so issued had been returned due to insufficiency of funds. The learned counsel submits that the ingredient no. (ii) was not satisfied, in as much as, the cheque was not drawn from the account of the bank as the bank account number was incorrect in the cheque itself, which was the reason for return of the cheque. The learned counsel submits that this aspect of the matter has not been considered by the learned Courts, although it was duly raised by the petitioner. 8. The learned counsel has thereafter submitted that though it was the case of the complainant that the legal notice was sent through registered post, but the petitioner had taken a specific plea that the notice was not served and it was not the case of the complainant that the petitioner had intentionally avoided to receive the notice. In such circumstances, the finding of the learned Court that the notice was served is also not sustainable in the eyes of law. 9. The learned counsel appearing on behalf of the opposite party State, while opposing the prayer, has submitted that there is no scope for re-appreciation of evidence and to come to a different finding in revisional jurisdiction. He has submitted that every aspect of the matter has been duly considered by the learned Courts and therefore the impugned judgments do not call for any interference. The learned counsel has further submitted that it is not in dispute that the legal notice was sent at the correct address under registered cover, therefore, the notice is deemed to have been served to the petitioner. 10. The learned counsel for the State has also submitted that with respect to notice every aspect of the matter has also been considered and therefore, there is no scope for giving a different finding. 11. After hearing learned counsel for the the parties and considering the facts and circumstances of this case, this Court finds that the sole reason for bouncing of the cheque in the present case was that the account number in the cheque was not correct. This Court also finds that the complainant in her evidence-in-chief has herself stated that all the columns were filled by herself in the cheque and she 3 identified the signature of the accused. The cheque had not bounced on account of any mismatch in signature. 12. This Court finds that the evidence of the complainant that the accused had issued the cheque for a sum of Rs. 70,000/- and the same was filled up by her and bears the signature of the accused has been recorded by the learned Court also while recording the testimony of PW-1 i.e. the complainant. This is apparent from the judgment passed by the learned Trial Court. The complainant, during course of trial, produced three witnesses. PW-1 is the complainant herself, PW-2 is Madhu Mishra and PW-3 is Braj Kishor Vijay. 13. The complainant also exhibited some documents which were marked as exhibits. Exhibit 1 is the cheque dated 10.12.2007, Exhibit 2 is cheque return memo dated 17.06.2008, Exhibit – 3 is Demand notice dated 28.06.2008, Exhibit 4 and 4/1 are postal receipts, Signature over A/D card were exhibited as Exhibit 5 and 5/1 and payment slip was exhibited as Exhibit 6. The defence contested the claim of the complainant, but no witness or any other evidence was produced on the part of the defence. 14. The learned Trial Court considered the materials on record and recorded the submission of the learned defence counsel that the complainant had misused the cheque as it was evident from the fact that the complainant had herself filled the cheque though with wrong account number and when it was placed before the bank it was dishonoured on account of wrong account number. The learned Court also recorded the argument of the defence in connection with the non- service of notice. 15. The learned Court, while recording the finding, has also recorded that the dispute arose when the bank dishonoured the cheque on account of wrong account number mentioned over the cheque. However, the learned Court recorded that when the facts were applied to Section 138 of Negotiable Instruments Act, it appeared that valid cheques were deposited by the complainant within a time-frame prescribed under law. 4 16. So far as the argument with regard to service of notice is concerned, the same was rejected by the learned Court by referring to the judgment passed by the Hon'ble Supreme Court reported in (1999) 7 SCC 510 (K. Bhaskaran Vs. Sankaran Vaidhyan Balan) and observing that once the notice is dispatched by post in correct address, it is presumed to have been served within 30 days. Thereafter, the learned Court referred to Section 139 of the Negotiable Instruments Act and dealt with the presumption in connection with the existence of legally enforceable debt and ultimately, the learned Court observed that there was initial presumption in favor of the complainant. The learned Court accordingly held that the charge under Section 138 of the Negotiable Instruments Act was established. 17. The learned Appellate Court also considered the materials on record and observed that the liability of the drawer cannot be avoided if he closes the account and the cheque is dishonoured. With that background, the learned Appellate Court has held that the dishonour due to wrong account number also comes within the purview of Section 138 of the Negotiable Instruments Act. 18. This Court is of the considered view that a cheque carrying a wrong account number cannot be said to be a valid cheque, particularly in the circumstances when the complainant herself had filled the cheque. The cheque bearing a wrong account number cannot be said to be a cheque drawn on the bank account of the person issuing the cheque, and thus, one of the basic ingredients for constituting offence under Section 138 of the Negotiable Instruments Act was absent. 19. So far as the argument of the petitioner with regard to service of notice is concerned, this Court is of the view that both the learned Courts have considered the materials on record and have held that the notice was duly served upon the petitioner. Such finding does not call for any interference in revisional jurisdiction which does not permit reappreciation of materials and coming to a different finding. 20. This Court is of the considered view that the dishonour of cheque in the present case having occurred on account of mentioning 5 of wrong account number and that the entries in the cheque except the signature were said to have been filled up by the complainant herself, in such circumstances, the basic ingredient of offence under Section 138 of the Negotiable Instruments Act was not satisfied. 21. In view of the aforesaid facts and circumstances, this Court finds that both the learned Courts have passed perverse judgments by holding that the cheque issued by mentioning wrong account number was satisfying the basic requirements for offence under Section 138 of the Negotiable Instruments Act. 22. Having held as aforesaid, the conviction of the petitioner under Section 138 of the Negotiable Instruments Act cannot be sustained in the eyes of law which is accordingly set-aside. 23. This criminal revision petition is accordingly allowed. 24. 25. Let a copy of this order be communicated to the court Pending interlocutory application, if any, is closed. concerned through ‘FAX’. Pankaj (Anubha Rawat Choudhary, J.) 6