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2010 Supreme(Chh) 270
IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
T.P. Sharma, J.
Nilesh Kumar Lukand - Appellant
Versus
Nirmal Bardiya - Respondent
Criminal Revision No. 7 of 2009
Decided On : 09-03-2010
For the Appellant :Mr. P.P. Sahu, Advocate.
For the Respondent:Mr. Rajendra Tripathi, Advocate.
The main legal point established in the judgment is that the complainant must prove that the cheque was issued in discharge of debt or liability, and the notice must be read as a whole, with any differences in the cheque amount and loan amounts potentially affecting the validity of the notice.
Headnote:
Negotiable Instruments Act - Conviction under Section 138 - Act of 1881 - Summary of Acts and Sections: The court discussed the provisions of Section 138 of the Negotiable Instruments Act, 1881 and referred to key legal principles established in the cases of Kumar Exports v. Sharma, K.R. Indira v. Dr. G. Adinarayana, and Suman Sethi v. Ajay K. Churiwal & Anr. The court emphasized the requirement for the complainant to prove that the cheque was issued in discharge of debt or liability, the need for the notice to be read as a whole, and the validity of the notice in case of differences between the cheque amount and loan amounts.
Fact of the Case:
The applicant was convicted under Section 138 of the Negotiable Instruments Act, 1881 for issuing a dishonored cheque. The respondent filed a complaint based on the dishonored cheque, which led to the conviction and sentencing of the applicant.
Finding of the Court:
The court found that the applicant had issued a cheque bearing a different number than the one mentioned in the complaint and notice. However, the court maintained the conviction and modified the sentence, emphasizing that the facts were within the knowledge of the applicant and the clerical mistake of the cheque number did not invalidate the claim of the respondent.
Issues: The key issue was whether the discrepancy in the cheque number mentioned in the complaint and notice invalidated the claim under Section 138 of the Act of 1881.
Ratio Decidendi: The court held that the complainant must prove that the cheque was issued in discharge of debt or liability, and the notice must be read as a whole. The court emphasized that differences in the cheque amount and loan amounts could affect the validity of the notice.
Final Decision: The court dismissed the criminal revision, affirming the conviction and modified sentence of the applicant under Section 138 of the Negotiable Instruments Act, 1881.
T.P. Sharma, J.
By this criminal revision applicant has challenged the legality and propriety of the judgment dated 29/9/2008 passed by the Additional Sessions Judge (F.T.C.) Dhamtari, in criminal appeal No. 33/2007 affirming the judgment of conviction of applicant under Section 138 of the Negotiable Instruments Act, 1881 (in short 'the Act of 1881') and setting aside the sentence of imprisonment of 3 months by maintaining the sentence of fine of Rs. 10,000/- by Judicial Magistrate First Class, Dhamtari vide judgment dated 5/12/2007 in criminal case No. 264/06.
2. Judgment is impugned on the ground that both the Courts below has not considered the question of law involved in the present case is that the applicant have been convicted and sentenced for the offence which he has not committed.
3. Brief facts necessary for disposal of this criminal revision as per complaint of the respondent present applicant has issued cheque No. 053208 on 4/5/01 in discharge of liability of Rs. 75,000/- in favour of the respondent same was presented before Bank which was dishonored the cheque then applicant was served with the notice relating to cheque No. 053208. On failing to make the payment so demanded, the respondent has filed the complaint under Section 138 of the Act of 1881.
4. After affording an opportunity of hearing the parties learned Judicial Magistrate First Class, Dhamtari has convicted and sentenced the applicant. Applicant has preferred an appeal before the Additional Sessions Judge, Dhamtari. Additional Sessions Judge, Dhamtari has affirmed the conviction but modified the sentence awarded to applicant. Both the Courts below have arrived at finding that applicant has issued the cheque No. 055208 but as a mistake the number of the cheque has been mentioned in complaint and notice as 053208.
5. Learned counsel for the parties are heard.
Judgment impugned and record of the Court below perused.
6. Learned counsel for the applicant vehemently argued that applicant was under obligation to discharge the liability incurred cheque No. 055208 and not in the cheque No. 053208. Respondent has served the notice to the applicant for discharge of liability incurred in relation to the cheque No. 053208. Respondent has also filed the complaint in relation to cheque No. 053208 but has filed cheque No. 055208 which was dishonored by the Bank. Therefore, in absence of any notice on demand in terms of under Section 138 of the Act of 1881 relating to cheque No. 055208 present applicant is not liable for commission of any offence punishable under Section 138 of the Act of 1881.
7. Learned counsel for the applicant placed reliance in the matter of Kumar Exports v. Sharma 2009(2) SCC 513 (SC) Carpets in which Apex Court has held that complainant is required to prove the fact that cheque was issued in discharge of debt or liability but if complainant himself made declaration to the Sales Tax Department that no sale had taken place then same would be sufficient displacement of the presumption.
Learned counsel for the applicant further placed reliance in the matter of K.R. Indira v. Dr. G. Adinarayana 2003(8) SCC 300 in which Apex Court has held that in case of difference between the cheque amount and loan amounts the notice is not valid notice interims of Section 138 of the Act of 1881.
Learned counsel for the applicant also placed reliance in the matter of Suman Sethi v. Ajay K. Churiwal & Anr. 2000 (2) MPHT 411 (SC) in which Apex Court has held that complainant is required to make specific term of the notice and notice has to be read as a whole.
8. On the other hand, learned counsel for the respondent vehemently opposed the criminal revision and submits that only on the ground of clerical mistake applicant is not entitled for acquittal. In the present case only one cheque has been issued by the applicant but by mistake erroneously wrong number has been mentioned in the complaint and notice.
9. In order to appreciate the argument advanced on behalf of the p
