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IN THE HIGH COURT OF GAUHATI
RUMI KUMARI PHUKAN, J.
Md. Gulzar Hussain - Appellant
Versus
The State of Assam and Ors - Respondent
Crl. A. 401 of 2017
Decided On : 30-04-2019
Negotiable Instrument Act, 1881 – Section 20 87 118(b), 138, 139 – Code of Criminal Procedure – S. 313 – Appeal Against Acquittal in Dishonoring of Cheque – Being aggrieved by the aforesaid acquittal order of the accused/respondent No. 2 by the learned trial Court, the complainant/appellant has preferred the present appeal on the grounds inter alia that the impugned judgment and order is bad in law and facts, that the learned trial Court did not apply its proper judicious mind and failed to appreciate the evidence on record and thereby came to an erroneous conclusion, that the learned trial Court passed the order in a mechanical manner with total non-application of mind and thereby acquitted the respondent No. 2/accused, etc. and prayed for setting aside the trial Courts judgment and order and upon hearing the parties and after perusal of the records, to pass an appropriate order, in the interest of justice – Held, Bearing in mind the above legal principle and the pronouncement above, turning to the present case in hand it will be found that the accused/respondent neither has challenged the factum of taking loan from the complainant, nor has disputed his signature in the cheque and the amount thereof and no rebuttal evidence has been adduced to rebut the legal presumption but has simply denied the case of the complainant only at this stage of giving his statement u/s. 313 of CrPC – Only on the error of the statement of PW-2 that the cheque was issued on the day of taking the loan the entire case cannot be discredited – It is to be noted that from the totality of the evidence of PW-2 he has affirmed the taking of loan by the accused/respondent and also about issuance of cheque in his presence but he has erred in stating the date of issuance of cheque, which is inconsequential in absence of denial of the respondent and having no rebuttal evidence on the part of accused/respondent – Only because of this one omission on the part of PW-2 his entire evidence cannot be discarded whereas his evidence is all thorough consistent on the entire issue – Such an omission in evidence may also take place as he was examined after more than one year of the occurrence and the learned trial Court has entered into an illegality while acquitting the accused – Rather it can be held that complaint/appellant has successfully proved his case that the accused/respondent No. 2 has committed an offence u/s. 138 of NI Act – Accordingly impugned order of acquittal is set aside and accused/respondent No. 2 is hereby convicted u/s. 138 of NI Act –Bearing in mind the object and reasons behind the act that the object of criminalizing the dishonor of cheque was to regulate the commercial activities and to safeguard the interest of creditor and also bearing in mind the principle laid in AIR (2012) SC 528 R. Vijayan Vs. Baby and Ors. that there is no bar to levy fine twice the cheque amount and can also direct such payment as compensation and also considering the aspects that the accused/respondent is a doctor by profession, instead of sentence of imprisonment, he is hereby sentenced to pay a fine twice the cheque amount within a period of 3 (three) months from today, in default RI for 6 (six) months – The amount of fine be given to the complainant as a compensation – Appeal Allowed
JUDGMENT :
RUMI KUMARI PHUKAN, J.
1. Heard Mr. B. Nath, learned counsel appearing for and on behalf of the appellant/complainant as well as Ms. A. Begum, learned Addl. P.P., Assam, representing the State/respondent. None is present for and on behalf of the respondent No. 2.
2. The present appellant as complainant filed a complaint case before the learned CJM, Kamrup (Metro) at Guwahati against the respondent No. 2/accused, u/s. 138 of the Negotiable Instrument Act, 1881 (In short 'the N.I. Act') alleging that the accused person issued three cheques in favour of the complainant which were dishonoured due to insufficient funds. The complainant alleged that the accused person approached the complainant for monetary assistance to the extent of Rs. 1,32,000/- and promised to repay the same within three months and/or demand or whenever he needed and on such request the complainant paid Rs. 1,32,000/- to the accused person on 13.04.2015 and no document was executed in respect of lending of such amount as the accused was known to him since long. On demand made by the complainant, for return of money, three cheques for Rs. 44,000/- each were issued by the accused on 25.06.2015, 25.07.2015 and 25.08.2015 respectively, in favour of the complainant, to be drawn in the State Bank of India, Khanapara Branch and requested the complainant to deposit the cheques for collection after 26.08.2015. Accordingly the complainant deposited the cheques for encashment on 04.09.2015 in the Co-operative City Bank Ltd., Ganeshguri Branch but the cheques were returned back with the remark "funds insufficient" along with dishonour memo dated 07.09.2015. Then the complainant sent one demand notice dated 14.09.2015 to the accused stating about dishonour of cheques and demanded repayment of the borrowed money with 15 days from the date of receipt of the notice. But as the accused person failed to make repayment within the stipulated time, the complaint lodged the complaint case u/s. 138 of the N.I. Act, as stated above.
3. Resultantly the C.R. Case No. 2540/2015 was registered and transferred to the Court of learned Judicial Magistrate, 1st Class, Kamrup (M) at Guwahati for disposal. Accordingly process was served upon the accused/respondent No. 2. On his appearance, the learned trial Court explained the offence u/s. 138 NI Act to him, to which the accused person pleaded not guilty and claimed to be tried and accordingly the case proceeded for hearing.
4. During the trial, the complainant/appellant examined two witnesses including himself in support of his case and exhibited some documents and the witnesses were subjected to cross-examination by the accused/respondent No. 2. The accused did not adduce any evidence in his defence.
5. The statement of the accused was recorded u/s. 313 CrPC and after hearing the parties, the learned trial Court take up following four points for decision:
(2) Whether the cheques were dishonoured for insufficient funds in the account of the accused?
(3) Whether the accused received the demand notice issued by the complainant regarding the dishonour of the cheque?
(4) Whether the accused has committed the offence under section 138 of the Negotiable Instrument Act, 1881?
6. The learned trial Court decided the point No. 1 against the accused and arrived at the conclusion that the cheques were issued for discharge of legally enforceable debt of liability towards the complainant. The point No. 2 also decided against the accused and held that the cheques were dishonoured due to insufficient funds in the account of the accused. The point No. 3 was decided against the accused and held that the accused received the demand notice issued by the complainant and finally the point No. 4, which was crucial, decided in favour of the accused and held that the accused committed no offence u/s. 138 of the N.I. Act. Resultantly the a
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