JUDGMENT & ORDER

T. AMARNATH GOUD, J. –

Both the above criminal petition being Crl.Petn 43 of 2018 as well as criminal revision petition being Crl. Rev. Petn 27 of 2021 relate to judgment and order dated 22.05.2018 arising out of CR (NI) 34 of 2017 and thus these petitions have been disposed of by way of common judgment and order.

Crl.Petn 43 of 2018

2. The petitioner in this case is the complainant before the court of Judicial Magistrate, 1st Class cum Civil Judge (Sr.Division), Court No.1, Udipuar, Gomati in CR(NI) 34 of 2017 under Section 138 of the NI Act filed against dishonor of Cheque bearing No.997483 dated 12.06.2017 for an amount of Rs.4,70,000/- and the court below has awarded punishment to the accused imposing him to Rs.4,00,000/- and in default to pay the fine the accused would suffer R.I for a period of three months.

Crl.Rev.Petn 27 of 2021

3. The petitioner in this criminal revision petition is the accused and respondent is complainant in CR(NI) 34 of 2017 which is disposed of on 22.05.2018. The court below against the cheque amount Rs.4,70,000/-, awarded punishment imposing of paying Rs.4,00,000/- to be paid by the accused to the complainant in default to pay the fine the accused would suffer R.I for a period of three months. Aggrieved by the same, the accused preferred an appeal vide Crl.A. 19(2) of 2018 in Sessions Judge, Court, Gomati District, Udaipur and the said appeal has been discussed by the order dated 03.05.2021 confirming the trial court order dated 22.05.2018. Aggrieved thereby, the instant criminal revision petition has been filed by the accused.

4. For the sake of brevity, the parties herein are referred to as complainant and accused in Crl.Pet 43 of 2018 as well as in Crl.Rev.Petn 27 of 2021.

5. The brief facts of the case as per CR(NI) 31 of 2017 are as under:-

It is the case of the complainant that the complainant and the accused-respondent know each other and were also into monetory transaction. The accused-respondent used to borrow money from the complainant as and when required. On 09.04.2017 in the morning at 11 am the accused respondent borrowed an amount of Rs.4,70,000/- (Rupees four lacs seventy thousand) from the complainant at his shop Duranta Travels, Lake city shopping complex, Udaipur in presence of (i) Utpal Datta S/o Suresh Chandra Datta, (ii) Swapan Das S/o Nimai Ch. Das both residents of Badarmokam & (iii) Mr. Pintu Saha S/o Haripada Saha of North Sataria for the purpose of his personal need with a condition to repay the sum by 15th of June 2017 but was in vain. On being approached by the complainant on 12.06.2017 the accused-respondent issued a Cheque bearing No.997483 dated 12.06.2017 for an amount of Rs.4,70,000/- only on State Bank of India, Udaipur Branch vide his account NO.10515470637 in the house of the complainant again in presence of (i) Sri Utpal Datta, (ii) Swapan Das and (iii) Pintu Saha. The complainant for encashing the same on said date had deposited the said cheque vide no.997483 dated 12.06.2017 for Rs.4,70,000/- in his account 31455728000 with the State Bank of India, Udaipur Branch, Gomati Tripura. On 19.06.2017 the State Bank of India, Udaipur Branch returned the said cheque bearing no-997483 dated 12.06.2017 for Rs.4,70,000/- issued by the accused with return slip to the complainant stating inter alia that due to “Drawer’s Sign Mismatch” the cheque has been dishonoured. On 12.07.2017 the complainant through his Advocate got issued a demand notice to the accused by registered post demanding to pay the cheque amount of Rs.4,70,000/- failing which legal action shall be taken against him. On 24.07.2017 the accused person has received the demand notice addressed to him dated 12.07.2017 but he did not pay back the amount. Since the accused failed to pay the complainant invoked proceeding under Section 138 of the NI Act by filing the criminal petition vide CR(NI) 31 of 2017. The accused in his defence replied to the notice as well as before trial court submitted that the cheque books with no. 997476 to 997500 and from no. 428251 to 428270 were lost in 2016 much before the date of subject cheque dishonoured. He also filed police complaint about cheque lost on 08.06.2016 to PS Kakraban and it is entered in G.D.

6. The court below tried the case and examined witnessed on behalf complainant as CWs-1, 2 and 3 and for accused-respondent as DWs 1 and 2 and marked exhibits 1 to 6 for complainant and „B? for accused. After hearing both sides the court below imposed a fine of Rs.4,00,000/- is to be paid to complainant in default to suffer RI for 3 months. Aggrieved by the said judgment in awarding the accused to pay Rs.4,00,000/- as against the cheque amount Rs.4,70,000/- the complainant preferred the present criminal petition seeking to modify Rs.4,00,000/- to Rs.4,70,000/- since the error has been committed by the trial court.

7. The petitioner in criminal revision petition who is the accused in the above CR(NI) 34 of 2017 being aggrieved by the said judgment wherein the trial court has directed him to pay Rs.4,00,000/- he has preferred the criminal appeal No.19(2) of 2018 in the court of the Sessions Judge, Gomati District, Udaipur. The accused has made a police complaint in Kakraban Police Station stating that his two cheque books have been lost bearing series from 997476 to 997500 and from 428251 to 428270. The accused denied the fact that the complainant and the accused do not know each other and there is no relationship between them and he has never borrowed the amount and accordingly he has not issued any cheque in favour of the complainant. The lower appellate court has not appreciated the appeal and while dismissing the appeal confirmed the trial court order. Hence the Crl.Rev.Petn.

8. Heard Mr. B. Debnath, learned counsel appearing for the accused-respondent as well as Mr. Samar Das learned counsel appearing for the complainant-petitioner.

9. It is the case of the complainant that the complainant and the accused know each other for business purpose and they had a friendly relation. The accused has taken a loan from the complainant of Rs.4,70,000/- and the accused has issued a cheque bearing no-997483 dated 12.06.2017 against the said loan of Rs.4,70,000/-. On 19.06.2017 the State Bank of India, Udaipur Branch returned the said cheque bearing no-997483 dated 12.06.2017 for Rs.4,70,000/- issued by the accused person with a certificate to the complainant stating inter alia that due to “Drawer’s Sign Mismatch” the cheque has been dishonoured. When the cognizance was taken by the trial court, it has ordered the accused to pay Rs.4,00,000/- in favour of the complainant. In this regard, CW1 the complainant examined himself and CW 2 and 3 supported the case of the complainant and marked Exhibits – 1 to 6.

10. On the other hand denying the very liability as well as the cheque being lost and accordingly complaint being filed before the Kakraban Police Station on 08.06.2016 with reference no. KKB-PS, DE No.10, the said complaint has been entered in the General Diary which is marked as exhibit ‘B’. The cheque consists of series nos. from 997476 to 997500 and from 428251 to 428270. The said complaint regarding the loss of cheque books was made way back in 08.06.2016 and the said dishonor of cheque is of 12.06.2017. The accused denied the fact that the complainant and the accused do not know each other and there is no relationship between them and he has never borrowed the amount and accordingly he has not issued any cheque in favour of the complainant.

11. It is pertinent to note that on perusal of the record both the courts below have not appreciated the fact that the cheque books were lost bearing No. 997476 to 997500 and from 428251 to 428270 in 2016. The GD entry and the acknowledgment of the concerned police station having reference no. KKB-PS, DE. NO.-10 dated 08.06.2016 marked as exhibit-B cannot be ignored. With regard to the stopping of cheques way back in 2016 request has been made as per evidence of the DW2, Assistant Branch Manager, SBI Udaipur Branch. He has stated that a cheque bearing No. 997483 dated 12.06.2017 of Rs.4,70,000/- was returned back due to mis-match of the signature. Since the subject cheque which has been dishonoured bearing No.997483 is the leaf from the cheque book which is lost containing series of 997476 to 997500, this fact of filing a complaint way back in 2016 cannot be ignored. Both the trial court and the lower appellate court have failed to appreciate the said fact. Moreover, the trial court when the cheque amount is Rs.4,70,000/-, imposing a fine of Rs.4,00,000/- is not proper.

12. The lower appellate court has also totally ignored the fact of complaint and the GD entry and the exhibit B. This court feels it pertinent to refer to the Section 138 and 139 of the NI Act which has been taken into cognizance by the courts below while appreciating dishonor of cheque by the bank. For ready reference, Section 138 & 139 of NI Act is reproduced herein below:

“138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both”

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.—For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.

139. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.”

13. To take the cognizance under Section 138 of the NI Act the amount should be legally enforceable debt and the complainant except the oral statement of CWs 1, 2, 3, cheque and bank return slip on the ground of “Drawer’s Sign Mismatch” has not produced any other evidence which would strengthen the case of the complainant in view of the defence taken by the accused. The defence runs around the cheque being lost by the accused and the GD entry. While initiating the said criminal proceeding before the trial court nothing prevented the complainant to place on record documentary evidence with regard to the transaction to say legally enforceable debt. According to him the amount of Rs.4,70,000/- has been given to the accused by way of a loan by placing on record any documentary evidence to that effect which would have been an additional evidence strengthening the case of complainant as stated supra. In the absence of the same, it throws a doubt that whether the cheque which is the subject matter of the dispute is legally enforceable or not. Hence, this court has no hesitation to draw an inference that the complainant failed before the court for not placing any document to establish the transaction between the complainant and the accused herein. CW3 at one point of time says that he does not know Pintu Saha and later he says Pintu Saha was also present along with him in the shop of the complainant when transaction has taken place. The evidence of CW3 is inconsistent and the evidence appears to be fishy. Mr. Pintu saha who was shown as witness by complainant was not examined before the trial court.

14. There are several laches on the part of the complainant and the order of the trial court and lower appellate court not considering the fact of cheque being lost and GD entry made before the police station Exhibit “B” cannot be appreciated and this court has no hesitation to set aside the Judgment & order passed by the trial court dated 22.05.2018 and further order of the lower appellate court dated 03.05.2021 confirming the order of the trial court is also set aside.

Accordingly, the criminal petition being Crl.Petn 43 of 2018 is dismissed and the Criminal revision petition being Crl.Rev.Petn 27 of 2021 is allowed.

Criminal revision petition 43 of 2018 dismissed.

Criminal revision petition 27 of 2021 allowed.