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2019 Supreme(Jhk) 966
IN THE HIGH COURT OF JHARKHAND AT RANCHI
DEEPAK ROSHAN, J.
Sharwan Kumar Gupta – Petitioner
Versus
The State of Jharkhand – Respondent
Cr. Revision No. 244 of 2013
Decided On : 20-11-2019
Advocate Appeared:
For the Petitioner: Md. Faruque Ansari.
For the Respondents: Mr. Sudhir Kumar Mahto, Mr. J.S. Singh, Ms. Pinki Kumari.
Headnote:
N.I. Act - Section 138 - Three decimals of land and house in village - Return with memo - Complainant’s case in brief is that complainant and petitioner are co villagers and known to each other - Petitioner took loan from complainant against his three decimals of land and house in village Atbara which he had mortgaged for period years - Petitioner also promised to refund aforesaid amount to complainant within years and if he fails then he would execute sale deed in respect aforesaid land to complainant and for that written agreement was also executed between them – Held, In order to attract offence Section Negotiable Instrument Act following ingredients are necessary - Proviso to Section is all important and stipulates three distinct conditions precedent which must be satisfied before dishonor of cherub can constitute an offence and become punishable - First condition is that cherub ought to have been presented to bank within period six months from date on which it is drawn or within period of its validity whichever is earlier - Second condition is that payee or holder in due course cherub case may be sought to make demand for payment said amount of money by giving notice in writing to drawer of cherub within thirty days receipt of information by him from bank regarding return cherub as unpaid - third condition is that drawer of such cherub should have failed to make payment said amount of money to payee or as case may be to holder in due course within fifteen days receipt of said notice - It is only upon satisfaction of all three conditions mentioned above and enumerated proviso to Section as clauses thereof that an offence Section can be said to have been committed by person issuing cherub - Expression cause of action has been universally understood to mean bundle of facts which plaintiff must prove in order to entitle him to succeed in suit – Order accordingly
JUDGMENT :
DEEPAK ROSHAN, J.
1. The instant application is directed against the judgment dated 12.02.2013, passed by the learned Additional Sessions Judge-IV, Palamau at Daltonganj, in Criminal Appeal No. 116 of 2012, whereby the appeal preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence dated 30.08.2012 passed by the learned CJM, Daltonganj in Complaint Case No. 536 of 2008 (T.R. No. 2574 of 2012) holding the petitioner guilty for the offence under Section 138 N.I. Act and sentencing him to undergo S.I. for 6 months with fine of Rs. 2,58,000/- has been affirmed.
2. The complainant’s case in brief is that the complainant and the petitioner are co-villagers and known to each other. The petitioner took loan of Rs. 2,58,000/- from the complainant on 05.01.2006 against his three decimals of land and house in village Satbarwa which he had mortgaged for a period of 2 years. The petitioner also promised to refund the aforesaid amount to the complainant within 2 years and if, he fails then he would execute a sale deed in respect of the aforesaid land to the complainant and for that written agreement was also executed between them. The further case of the complainant is that the accused did not refund Rs. 2,58,000/- to the complainant within the stipulated period nor executed the sale deed and, therefore, after the repeated persuation by the complainant, the petitioner issued 3 cheques of Vananchal Gramin Bank, Satbarwa Branch on 24.05.2008; two cheques for Rs. 95,000/- and one cheque Rs. 97,000/- in favour of the complainant, as against the loan amount alongwith compensation for holding money for 2½ years. It is the further case of the complainant that the petitioner assured the complainant that the said cheques would be cleared whenever they were presented in the Bank. On 24.05.2008, the complainant deposited the aforesaid cheques but they were dishonoured on account of insufficiency of fund in the account and the cheques were returned with memo. Thereafter, on 09.06.2008 the legal notice was received by the complainant but since the petitioner did not pay the amount, the complaint case was presented before the learned trial court.
3. On the basis of evidences, both oral and documentary, laid before him, the learned trial court came to the conclusion that the complainant has been able to prove the ingredients under Section 138 N.I. Act against the petitioner and found the petitioner guilty for the offence under Section 138 N.I. Act and sentenced him S.I. for 6 months with fine of Rs. 2,58,000/- to be paid by the petitioner to the complainant. It has also been ordered that if the petitioner fails to pay the fine he shall suffer further S.I. for one month.
4. Being aggrieved, the petitioner challenged the aforesaid order before the learned Sessions Judge-IV, Palamau being Criminal Appeal No. 116 of 2012 and the learned appellate court after appreciating the arguments adduced by the parties and after perusing the documents placed before him concurred with the finding of the learned trial court and dismissed the appeal.
5. The learned counsel for the petitioner submits that it is true that the loan was taken by the petitioner and an agreement to that effect was also signed stipulating therein that if the loan amount will not be repaid by the petitioner to the complainant then the petitioner shall execute the sale deed of the land which was mortgaged with the complainant as surety of the said loan. He further submits that the cheque was issued in favour of the complainant was undated. He further submits that there are contradictions in the deposition of the complainant witnesses and the prosecution has failed to prove its case beyond all shadow of reasonable doubts.
6. Per-contra, learned counsel for the opposite party no. 2 supports the impugned orders and submits that the case is very clear and all the ingredients of 138 N.I. Act has been fulfilled. The petitioner has failed to point out any erro
