The court upheld the conviction under Section 138 of the N.I. Act, affirming that a cheque issued for a legally enforceable debt is valid despite a shorter notice period for payment.

JUDGMENT :

Heard Mr. S.J. Sarmah, learned counsel for the petitioner. Also heard Mr.S.C. Keyal, learned counsel for the respondent No. 2/complainant and Ms. S.H. Borah, learned Addl. Public Prosecutor for the State respondent.

2. The instant Criminal Revision Petition is filed under Sections 397, 401 read with Section 482 of the Cr.PC for setting aside of the conviction and sentence in the Judgment & Order dated 07.12.2018 passed by the learned Court of Session Judge at Jorhat in connection with Crl.A. No. 8(1)/2017 under Section 138 of Negotiable Instruments Act, 1881, (hereinafter referred to as the “N.I. Act”), whereby the appeal by the accused petitioner have been dismissed and the order passed by the learned Addl. Chief Judicial Magistrate, Sivasagar in C.R. (NI) Case No. 240/2010 is upheld, whereunder the accused person is sentenced to pay a fine of Rs. 3,60,000/- (Rupees Three Lakhs Sixty Thousand) only and in default of payment of fine to undergo Simple Imprisonment for 1 (one) year.

3. The facts of the case is that the complainant lodged a complaint on 12.11.2018 alleging inter alia that the accused petitioner alongwith few family members had constructed a Market Complex by taking loan from HUDCO. Since the said loan could not be returned, the accused petitioner approached the complainant with a request to give him money by stating that the HUDCO is preparing to put the said Market into auction. It is further alleged that accordingly, the complainant gave Rs.3,00,000/- (Rupees Three Lakhs) to the accused petitioner. It is further alleged that the mother of the accused petitioner also took Rs. 5,00,000/- (Rupees Five Lakhs) from the complainant for payment to HUDCO on the same day. It is further alleged that thereafter, the accused petitioner did not return the said amount of Rs. 3,00,000/- (Rupees Three Lakhs) and subsequently, it was discovered that the mortgaged property was already transferred to a third party. It is further alleged that after much persistence, the accused petitioner agreed to return Rs. 3,00,000/- (Rupees Three Lakhs) to the complainant and accordingly issued cheque bearing cheque No. 908960 dated 31.08.2010 amounting to Rs. 3,00,000/- (Rupees Three Lakhs) to the complainant. However, upon deposit of the aforesaid cheque, the same was dishonoured with the remark “Insufficient fund”. Accordingly, a demand notice on 07.10.2010 was issued and the same being not paid, Section 138 of the N.I. Act proceedings have been filed before the ASJM (S), Sivasagar. The Trial Court was pleased to find the accused petitioner guilty under Section138 of the N.I. Act and accordingly sentenced him thereof.

4. Against the above Judgment and order, an appeal was preferred before the Court of Sessions Judge, Sivasagar, wherein the Appellate Court was pleased to dismiss the appeal and affirmed the said Judgment of the Trial Court.Situated thus, the present Criminal Revision Petition has been filed.

5. Mr. S.J. Sarmah, learned counsel for the petitioner submits that the order of the Appellate Court as well as the Trial Court convicting the accused petitioner and sentencing him thereof is erroneous, inasmuch as, the notice issued under Section 138 of the N.I. Act is defective, in view of the fact that time for re-payment given in the said notice was 7 (seven) days instead of the mandatory 15 (fifteen) days.

6. Per contra, Mr. S.C. Keyal, learned counsel for the respondent No. 2/complainant submits that since the accused petitioner after filing the complaint case has already made part payment of the dishonoured cheque amount, the plea of the accused petitioner as regards the 15 days time period not being provided in the demand notice is of no relevance. He further submits that such plea was also not taken before the Trial Court.

7. I have given my prudent consideration to the arguments made by the learned counsels for the contending parties and have perused the materials available on record.

8. It appears that the Trial Court framed