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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Ram Prasanna Sharma, J.
Sukhiram - Appellant
Versus
Khurshid Alam @ Bablukhan - Respondent
Criminal Miscellaneous Petition No. 1202 of 2018
Decided On : 08-05-2020
Negotiable Instruments Act - Cheque Dishonour - Section 138 - 139, 118 - The court discussed the presumption under Section 139 of the Negotiable Instruments Act, 1881, the rebuttable nature of the presumption, and the requirement for the accused to adduce evidence to rebut the presumption. The court also considered the relevance of books of accounts in a criminal case filed under Section 138 of the Act, and the legal principles established in the case of DK Chandel vs. M/s. Wockhardt Ltd. & Anr. The judgment highlights the importance of evidence, the legal presumption in favor of the petitioner, and the liability of the respondent under Section 138 of the Act, 1881.
Fact of the Case:
The respondent borrowed a sum of Rs.7 lakh from the petitioner and issued a cheque for the same, which was dishonored. The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, resulting in the respondent's acquittal by the trial court.
Finding of the Court:
The court found that the evidence presented by the petitioner, including the dishonored cheque and notice to the respondent, established the liability of the respondent under Section 138 of the Act. The court also held that the presumption under Section 139 of the Act was unrebutted by the respondent's evidence.
Issues: The issues included the delay in filing the complaint, the relevance of books of accounts in a criminal case, and the liability of the respondent under Section 138 of the Negotiable Instruments Act, 1881.
Ratio Decidendi: The court's decision was based on the unrebutted presumption under Section 139 of the Act, the lack of evidence from the respondent to rebut the presumption, and the legal principles established in previous cases regarding the relevance of books of accounts in criminal cases.
Final Decision: The appeal was allowed, the trial court's finding was set aside, and the respondent was convicted under Section 138 of the Act, 1881. The respondent was sentenced to pay a fine of Rs.9,75,000 and interest at 6% on the amount advanced by the petitioner.
JUDGMENT
Ram Prasanna Sharma, J. - Heard on leave to appeal under Section 378(4) of the Code of Criminal Procedure, 1973.
2. On due consideration, leave is granted. Registry is directed to register it as regular acquittal appeal.
3. The petition is directed against judgment dated 13.02.2018 passed by Judicial Magistrate First Class, Janjgir Distt. Janjgir Champa (Chhattisgarh) in Criminal Case No. 82/2016 whereby the said Court acquitted the respondent for the offence under Section 138 of the Negotiable Instruments Act, 1881(for short ''the Act 1881'').
4. As per the version of the petitioner/complainant, both parties are well known to each other and when the respondent was willing to purchase some land, he borrowed a sum of Rs.7 lakh from the petitioner on 21.5.2013 and promised to return the said amount on or before 20.6.2013. The respondent for discharging his liability issued a cheque of Bank of Baroda, Janjgir bearing No.029254 dated 21.6.2013 amounting to Rs.7 lakh. The cheque was deposited by the petitioner in the bank for clearance but the same was dishonourned due to insufficiency of fund in the account of the respondent. After dishonour of the cheque the petitioner issued notice to the respondent through his counsel on 25.7.2013 and requested him to repay the amount within 15 days. The notice was received by the respondent on 26.7.2013, but he did not repay the amount within the stipulated period and thereafter complaint was filed against him which was resulted into acquittal.
5. Learned counsel for the petitioner submits as under:
(i) Though the complaint is delayed by 17 days, but the delay was condoned on the application under Section 142(B) of the Act, 1881 by the trial court vide order dated 04.7.2014. Once the delay is condoned and no legal action has been taken against the said order by the respondent, the order attained finality and the complaint cannot be dismissed on the ground of delay.
(ii) Book of accounts and other records are relevant in civil Court but it may not be relevant in present criminal case filed under Section 138 of the Act, 1881 because as per the Act, presumption is raised in favour of the petitioner as per the law laid down by the Hon''ble Apex Court in Criminal Appeal No (S).132 of 2020 in the matter of DK Chandel vs. M/s. Wockhardt Ltd. & Anr. decided on 20.01.2020. Therefore, finding of the trial Court is liable to be set aside and the respondent be convicted for the offence in question.
6. On the other hand, learned counsel for the respondent submits as under:
(i) The trial Court has not discussed the reason of delay in said complaint case in the order sheet dated 04.7.2013, therefore, delay is not condoned in the present case.
(ii) Source of income is not proved by the petitioner by books of accounts, therefore, the trial Court is right in holding that advance of loan is not established by the petitioner.
(iii) Finding of the trial Court is based on proper marshaling of evidence, the same is not liable to be interfered with.
7. I have heard learned counsel for the parties and perused the judgment impugned with record.
8. The first question for consideration before this Court is whether cheque for Rs.7,00,000/- was drawn by the respondent in favour of the petitioner for discharge of debt, whether the cheque deposited in the bank for clearance was returned unpaid on account of insufficiency of fund in the account of the respondent and whether after legal notice the respondent has not returned the amount of cheque to the petitioner.
9. The petitioner side adduced evidence of Sukhiram Sahu (PW-1) and Ashish Rathore (PW-2). As against this, the respondent did not adduce the evidence of any one. As per the version of Sukhiram Sahu (PW-1), the respondent borrowed a sum of Rs.7 lakh on 21.5.2013 and promised to repay the same on or before 20.6.2013. In discharge of his liability, the respondent drawn a cheque in favour of the petitioner bearing No.029254 dated 21.6.2013 for Rs. 7 lakh. The sa
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