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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anubha Rawat Choudhary, J.
Rang Lal Ram, son of Late Jitan Ram - Petitioner
Versus
The State of Jharkhand and ors. – Opposite Parties
Cr. Revision No. 156 of 2012
Decided On : 16-03-2021
Negotiable Instruments Act, 1881 – Section 138 to 142 - Petitioner submits that complainant himself that he was to invest in business of accused and in lieu of that, he would be entitled to get 40% profit - There have been no accounts regarding profit and cheques were issued only by way of security and not against any existing debt or liability - It is come in trial court’s judgment that notice was served upon son of petitioner and it is submitted that notice was not served upon petitioner - Opposite party No.-2 submits that learned courts below have rightly appreciated materials on record and have come to concurrent findings of fact that all basic ingredients for offence under Section 138 of Negotiable Instruments Act, 1881 have been satisfied and there is no scope for re-appreciation of evidence and coming to a different finding – Held, nature of transactions between parties and read with presumption under Section 139 of Negotiable Instruments Act that cheque was issued against discharge of existing debt or other liability, argument of petitioner that same was issued by way of security has no legal basis and this Court finds that accused could not discharge his onus against presumption of cheque having been drawn in discharge of liability - This Court finds that learned court has dealt with plea of petitioner regarding applicability of Sections 138 to 142 of N.I. Act and in view of presumption raised under Section 139 of N.I. Act, plea of petitioner has no legal basis - Petitioner did not adduce any defence evidence - There is no material on record to show that reverse burden upon petitioner regarding cheque having been issued against a debt or any liability has not been discharged at all and presumption under section 139 of Negotiable Instruments Act, 1881 remained intact - Revision petition dismissed.
JUDGMENT :
1. Heard Mr. A. K. Sahani, learned counsel appearing on behalf of the petitioner.
2. Heard Mr. P. D. Agarwal, learned counsel appearing on behalf of opposite party-State.
3. Heard Mr. Sanjay Kumar, learned counsel appearing on behalf of opposite party No.-2.
4. This revision has been filed for the following reliefs: -
Arguments of the petitioner
5. Learned counsel for the petitioner submits that it was the specific case of the complainant himself that he was to invest in the business of the accused and in lieu of that, he would be entitled to get 40% profit. He further submits that there have been no accounts regarding profit and the cheques were issued only by way of security and not against any existing debt or liability. The further point which has been argued by the learned counsel for the petitioner is that it is come in the trial court’s judgment that the notice was served upon the son of the petitioner and therefore it is submitted that the notice was not served upon the petitioner. He submits that these aspects of the matter have not been properly considered by the learned courts below and accordingly both the judgments are perverse and fit to be setaside.
6. Learned counsel for the petitioner has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2014) 12 SCC 539 para-12 onwards.
Arguments of the opposite party-State
7. Learned counsel appearing on behalf of opposite party-State has relied upon a judgment passed by the Hon’ble Supreme Court reported in (2007) 14 SCC 750 to submit that there is no illegality or perversity in the impugned judgments passed by the learned courts below regarding finding of service of notice upon the petitioner. He submits that there can be a number of ways in which the accused can avoid service of notice and in such situation, the Hon’ble Supreme Court has held that the moment the accused appears before the learned court below, he has an opportunity to pay the amount by stating that he had not received the notice regarding bouncing of cheque. He further submits that there is no scope for re-appreciation of evidence particularly when the notice as per the petitioner himself was served upon his son who was residing with him.
Arguments of the opposite party No.-2
8. Learned counsel appearing on behalf of opposite party No.-2 submits that the learned courts below have rightly appreciated the materials on record and have come to concurrent findings of fact that all the basic ingredients for offence under Section 138 of the Negotiable Instruments Act, 1881 have been satisfied and accordingly, there is no scope for re-appreciation of evidence and coming to a different finding. He further submits that otherwise also there is presumption of law in connection with existing debt when a cheque is issued and the reverse burden has not been discharged by the petitioner. He submits that there is no illegality and perversity in the impugned judgments and therefore the present petition is fit to be dismissed.
Findings of this Court
9. The prosecution case, in brief, is that the accused in the month of February, 2003 approached the complainant for financial accommodation as the accused was going to receive two work orders. The accused
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