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2023 Supreme(Online)(TRI) 192
HIGH COURT OF TRIPURA
HON'BLE THE CHIEF JUSTICE(ACTING)
Sri Subhrangshu Das – Appellant
Versus
Sri Prasanta Das and Anr – Respondent
Crl.Rev.P./30/2022
A person cannot be held guilty of dishonoring a cheque under Section 138 of the Negotiable Instruments Act if the cheque was lost before the demand notice was issued and the respondent suppressed the petitioner's reply to the demand notice.
Headnote:
NEGOTIABLE INSTRUMENTS ACT - DISHONOR OF CHEQUE - [The court set aside the lower court's judgment and ordered the petitioner to repay the amount to the respondent in three equal installments. The court found that the petitioner had lost the cheque before the demand notice was issued and that the respondent had suppressed the petitioner's reply to the demand notice.]
Fact of the Case:
The petitioner borrowed Rs. 3,00,000/- from the respondent in 2011 and issued a cheque for the same amount in 2014. The cheque was dishonored due to insufficient funds. The respondent filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act, and the petitioner was convicted and sentenced to pay a fine of Rs. 4,00,000/-. The petitioner appealed to the Sessions Court, which upheld the lower court's judgment.
Finding of the Court:
The court found that the petitioner had lost the cheque before the demand notice was issued and that the respondent had suppressed the petitioner's reply to the demand notice. The court also found that the petitioner had informed the bank and the police about the lost cheque.
Issues: Whether the petitioner was guilty of dishonoring the cheque under Section 138 of the Negotiable Instruments Act.
Ratio Decidendi: The court held that the petitioner was not guilty of dishonoring the cheque because he had lost the cheque before the demand notice was issued and the respondent had suppressed the petitioner's reply to the demand notice.
Final Decision: The court set aside the lower court's judgment and ordered the petitioner to repay the amount to the respondent in three equal installments.
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HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl. Rev P. No.30 of 2022
1.
Sri Subhrangshu Das (Age-39) son of Sri Sukhendu Bikash Das of
Ratiabari, P.S. & P.O. Kumarghat, District: Unakoti Tripura, Pin-
799264.
.....Petitioner(s)
-V E R S U S-
1.
Sri Prasanta Das, son of late Bhanulal Das of Pabiacherra, P.S. &
P.O. Kumarghat, District: Unakoti Tripura, Pin-799264.
2.
The State of Tripura, represented by the Secretary & Commissioner
to the Home Department, Government of Tripura, having his office
at the New Secretariat Complex, Agartala, P.O. Kunjaban, P.S. New
Capital Complex, Sub-Division: Sadar, West Tripura, Pin-799006.
….. Respondents
B_E_F_O_R_E
HON’BLE THE CHIEF JUSTICE (ACTING)
For Petitioner(s)
:
Mr. K. Chakraborty, Advocate.
Mr. K. Roy, Advocate.
Mr. R. Chakraborty, Advocate.
For Respondent(s)
:
Mr. R. Datta Public Prosecutor.
Mr. H.K. Bhowmik, Advocate.
Date of hearing & delivery of
judgment and order
:
10.01.2023
Whether fit for reporting
:
NO
JUDGMENT & ORDER [ORAL]
Heard Mr. K. Chakraborty and Mr. R. Chakraborty learned
counsel appearing for the petitioner. Also heard Mr. R. Datta, learned Public
Prosecutor and Mr. H. K. Bhowmik, learned counsel appearing for the
respondents.
[2]
The present criminal revision petition has been filed under
Section-397 of Cr. P.C. read with Section-401 of Cr. P.C., 1973 for setting
aside/quashing the judgment dated 12.04.2022 passed by the learned Sessions
Judge, Unakoti Tripura District, Kailashahar in case No. Criminal Appeal
No.04 (3) of 2021, affirming the judgment and order of sentence passed by the
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learned Judicial Magistrate, First Class, Kailashahar, Unakoti Tripura on
17.04.2021 in case No. CR (NI) 08 of 2014 awarding sentence upon the
appellant/convict/accused-person to pay a fine of Rs.4,00,000/- and in default
to suffer simple imprisonment for one year, under Section-138 of NI Act.
[3]
The succinct fact of the case is that in the year 2011 the petitioner
borrowed Rs.3,00,000/- (Rupees Three Lakhs) only from the respondent -
complainant No. 1 for his some personal necessity by virtue of having a good
relation with complainant for being a fellow businessman with an assurance
that he would repay the same within a few months and thereafter on
07.04.2014, the petitioner issued a cheque bearing No 324985 for an amount of
Rs. 3,00,000/- (Rupees Three Lakhs) only of the State Bank of India,
Kumarghat Branch through State Bank of India, Ratiabari Branch, Kumarghat
on 24.04.2014, but the said cheque was dis-honoured for insufficiency of fund
in the account of the petitioner.
[4]
Accordingly, the respondent No.1 issued a demand notice on
07.05.2014 demanding Rs. 3,00,000/- ( Rupees Three Lakhs) only and in spite
of receiving the said notice on 10.05.2014 the petitioner failed to make the
payment of the said amount. Subsequently, the respondent No.1 submitted one
Court complaint against the petitioner before the Court of the learned Chief
Judicial Magistrate, Unakoti District, Kailashahar, which was transferred to the
Court of the learned Judicial Magistrate, First Class, Kailashahar, for trial.
[5]
On receipt of complaint, cognizance of offence was taken U/S
138 of the Negotiable Instruments Act, 1881 by the learned Judicial Magistrate
First Class, Kailashahar against the petitioner after examining the complainant
under Section-200 of Cr.P.C., summons were issued against him and
accordingly he appeared before the Court and on 10.11.2014 and when the
memorandum of substance of accusation under Section-138 of Negotiable
Instruments Act, 1881 was prepared against the petitioner by the learned
Judicial Magistrate Class, Kailashahar and conducting trial, the learned trial
court convicted the petitioner and also sentenced him, as indicted above. The
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learned Court below after hearing the parties and perusal
