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2018 Supreme(Jhk) 1699
IN THE HIGH COURT OF JHARKHAND AT RANCHI
APARESH KUMAR SINGH, RATNAKER BHENGRA, JJ.
Ravi Shankar Mishra - Petitioner
Versus
The State of Jharkhand & Anr. - Opposite Parties
Cri. M.P. No. 2128 of 2017
Decided On : 14-02-2018
For the Petitioner: Ms. Asmita Shrivastava
For the Opposite Parties : Tapas Roy. APP.
The central legal point established in the judgment is the requirement for the complainant to establish the existence of a legally enforceable date in cases involving charges under Section 138 of the Negotiable Instruments Act.
Headnote:
Negotiable Instruments Act - Acquittal Appeal - Section 138 - 118, 139 - Summary of Acts and Sections
Fact of the Case:
The petitioner, who is the complainant, sought leave to appeal against the judgment of acquittal passed by the trial court in a case involving the accused's acquittal of charges under Section 138 of the Negotiable Instruments Act. The accused had issued two cheques to the complainant, which were returned unpaid, leading to the legal dispute.
Finding of the Court:
The trial court found that the complainant failed to establish the existence of a legally enforceable date and doubted the authenticity of the bill and cheques presented as evidence. The court acquitted the accused based on the lack of evidence establishing the offense under Section 138 of the Negotiable Instruments Act.
Issues: The main issue was whether the complainant had provided sufficient evidence to establish the offense under Section 138 of the Negotiable Instruments Act, specifically regarding the existence of a legally enforceable date.
Ratio Decidendi: The court's decision was influenced by the lack of cogent evidence establishing the existence of a legally enforceable date, as well as doubts regarding the authenticity of the bill and cheques presented as evidence.
Final Decision: The court dismissed the petitioner's appeal, stating that the petitioner had not made out a case for the grant of leave to appeal.
Heard learned counsel for the petitioner and learned APP for the State.
2. Petitioner is the complainant who seeks leave to appeal against judgment of acquittal dated 9th June, 2017 passed by Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 2076 of 2012 where under the sole accused/opposite party No. 2 has been acquitted of the charges under Section 138 of the Negotiable Instruments Act.
3. As per the complainant's case. the accused purchased cement from time to time from the complainant on duel credit. He purchased cement amounting to Rs. 3,96,0001/- and in discharge of his liability issued two cheques of Rs. 2,00,0001/- each bearing Nos. 411321 and 411322 dated 22nd September, 2012 which included the transportation cost of Rs. 4,0001-. On being presented before the United Bank of India. Irby Branch, Ranchi on 22.9.2012 they were returned unpaid on 26.9.2012 with remark "exceeds arrangement". A legal notice was sent on 11.10.2012 through speed post but the accused never replied thereto nor made the payments. Mter enquiry and S.A. of the complainant. summons were issued upon the accused. who appeared and denied accusations explained to him in Hindi and claimed to be tried.
4. Trial commenced. Two witnesses being the complainant and one Haldhar Singh were examined by the complainant. He also produced the following documentary evidences :
"Ext. 1 is Bill dated 20.9.12
Ext. 2 and 3 are two Cheques bearing No. 411321 and 411322 both of dated 22.9.12 amounting to Rs. 2.00.000/- (Two Lacs).
Ext. 4 and 5 are two Cheque return memos’ dt. 26.9.12.
Ext.6 is Legal Notice dated 11.10.12
Ext. 7 is Postal receipt dated 11.10.12.
Ext.8 is Acknowledgement of legal notice."
5. After conclusion of the complainant's witnesses' examination. the statement of the accused under Section 313. Cr PC was recorded on 24.6.2015. He pleaded innocence and stated that he had given cheques to the complainant as security but not a single bag of cement had been sent by the complainant. Thereafter. the complainant told him to pay Rs. 1,00,000/- and he would send 200 bags of cement but he did not send.
6. Learned trial Court after analyzing the evidence on record arrived at an opinion that initial burden of proof on the accused to rebut the presumption under Sections 118 and 139 of the N.J. Act by raising a probable defence has been discharged but the complainant has not been able to establish his case beyond shadow of all reasonable doubts relating to the existence of a legally enforceable date. The learned trial Court found that Ext. 1, the bill dated 20th September, 2012 for purchase of 1100 bags of Ultra Teck cement for Rs. 3,96,000/- was untrustworthy document as the date on the bill was overwritten and in the column of quantity also there was a cut. It also found that the two cheques dated 22nd September, 2012 amounting to Rs. 2 lac each, on perusal showed that the name and date on both the cheques have been filled by some other person in other pen. Ext.6, the legal notice stated that his client supplied demanded cement on 20.3.2012 but as per C.W. 1, the accused purchased cement on 20.9.2012. There was a difference in the dates which could not be discarded. The learned trial Court accordingly, observed that the bill Ext.l is a manipulated document and the date and name of the firm had been filled up by some other person on the cheque. Further during cross-examination C.W.-l deposed that the accused issued cheques on 22nd September, 2012 and after taking goods told him to produce the same after two to three days but C.W.2 in his examination-in-chief stated that Sanjay Kumar Mishra told Ravi Shankar Mishra to present both cheques on 22nd September, 2012. C.W.2 appears to be hearsay witness who had no personal knowledge about delivery of the cement to the accused. Though, as per complainant's case, the amount of Rs. 2 lac comprising two cheques also included Rs. 4,000/- as transportation charge but the complainant had not produced any chit of paper re
