Navin Kumar Sahay vs State Of Jharkhand And Others

Anubha Rawat Choudhary, J

Heard Mr. Rajeeva Sharma, learned senior counsel appearing on behalf of the petitioner along with Mr. Sarfaraz Akhtar, Advocate.

Heard Mr. Shekhar Sinha, learned counsel appearing on behalf of the opposite party-State.

Heard Mr. J. N. Upadhyay, learned counsel appearing on behalf of the opposite party No. 2.

This revision petition has been filed for setting aside the order dated 23.02.2012 passed by learned Sessions Judge, I, Jamshedpur in Cr. Appeal No.

23/2010, whereby the Appellate Court confirmed the Judgment dated 13.01.2010 passed by Judicial Magistrate, 1st Class, Jamshedpur in C/1 Case

No. 241/2004 convicting the petitioner for the offence under Section 138 of the Negotiable Instruments Act sentencing him to undergo rigorous

imprisonment for one year and to pay a sum of Rs. One Lakh to the complainant company as compensation.

Arguments on behalf of the petitioner

The learned senior counsel for the petitioner while advancing his argument, has submitted that though the dues was against the company in which

the petitioner was working, but the cheque was issued by the petitioner from his personal account and accordingly, there was no debt recoverable

from the petitioner in his personal capacity. It has been submitted that in such circumstances, the conviction of the petitioner under section 138 of

Negotiable Instruments Act, 1881 cannot be sustained in the eyes of law.

Learned senior counsel has relied upon a judgment passed by the Hon’ble Supreme Court in the case of “S.M.S.

Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another†reported in (2005) 8 SCC 89. The learned senior counsel submits that there is a concept of

vicarious liability when the cheque is issued by the company, but merely because one of the employees of the company has issued the cheque from his

personal account, he cannot be said to have issued the cheque in discharge of the debt of the company.

Arguments on behalf of the opposite party no. 2 and State

Learned counsel appearing on behalf of the opposite party No. 2 has referred to para 5 and 6 of the complaint petition to submit that the impugned

judgment does not call for any interference. He has further submitted that the cheque had bounced twice. He has submitted that there is no illegality

or perversity in the impugned judgements and accordingly no interference is called for in revisional jurisdiction.

Learned counsel appearing on behalf of the opposite party-State while opposing the prayer also does not dispute the fact that the company against

whom the amount was due to the complainant was never made accused in the present case, but the petitioner had issued his personal cheque which

had bounced.

Findings of this court

The case was registered on the basis of complainant filed by M/s Eastern Travels Pvt. Ltd. It has been alleged that on 09.08.2003 accused-

petitioner came to the office of the complainant and induced the manager of the complainant to believe that accused-petitioner is Zonal Sales manager

of another company at Hyderabad who is interested to support the business of supply of railway reservation ticket. The accused also represented that

his company will make payment of the bills to be placed by the complainant within 5th to 10th of every month and issued letter dated 09.08.2003

requesting for extending credit facility. The said letter was signed by the accused-petitioner on behalf of his company as authorized signatory. The

further contention is that the complainant believed the aforesaid representation of the accused and the complainant started supplying railway tickets to

the accused from 11.08.03 as per requirements of the accused and the accused used to collect the bills from the complainant every month in respect

of the railway tickets. On each occasion the accused assured the complainant to make payment of all the bills in one lump sum. The complainant

continued supplying the railway tickets to the accused as per instruction of the accused till 18.11.03 and the total amount of Railway Tickets supplied

by the complainant amounted to Rs. 1,33,101/- which was payable to the complainant. As no payment was made by the accused or by the company of

the accused to the complainant on one pretext or other, the complainant developed suspicion and insisted for payment of the entire outstanding dues

forthwith and also stopped supplying railway tickets to the accused from 18.11.2003.

On 28.11.2003 the accused came to the office of the complainant and handed over one account payee cheque dated 06.11.03 for Rs. 88,355/- being

part payment of the aforesaid outstanding dues and it was issued by the accused from his personal saving bank account and at the time of handing

over the said cheque, accused requested the complainant to produce the said cheque on or after 06.12.03 as in the meantime the accused promised to

get one Cheque issued by his company towards payment of the entire outstanding dues. The complainant waited till 5th December, 2003 as per

assurance of the accused for bringing the company’s cheque but the accused never produced Cheque of his company, accordingly cheque of the

accused was presented which stood dishonoured on the ground “Insufficiency of Fundsâ€. Thereafter the complainant apprised the accused about

the dishonour of the aforesaid cheque over telephone and the accused requested the complainant to present it for encashment in the last week of Jan.

2004. As per aforesaid request, the complainant again presented the Cheque but was dishonoured on 28.01.2004 due to “insufficiency of fundsâ€​ in

the account of the accused. Thereafter on 04.02.2004, the complainant sent a notice through his lawyer through registered post with A/D demanding

the money covered under the cheque which returned as unclaimed on 12.02.2004 and the accused did not pay the cheque amount to the complainant.

The specific case of the complainant was that the accused procured the supply of railway tickets in his favour from the complainant dishonestly

with fraudulent intention and did not intend to pay the same and the case was filed under Sections 420 IPC as well as Section 138 of the Negotiable

Instruments Act. However, ultimately cognizance was taken and the petitioner was charged for an offence under Section 138 of the Negotiable

Instrument Act only. The complaint case was filed only against the present petitioner who had issued the cheque from his personal account and the

company in which he was working was not made an accused.

Considering the evidences and the materials on record , the learned Trial Court held that the cheque was produced for encashment within the

stipulated period; legal notice was also sent to the accused within the stipulated time of one month from the date of dishonour of the cheque; the case

was also filed within the stipulated period and all the relevant documents such as cheque, bank memos, carbon copy of legal notice, the letter of the

Authority, the letter of the accused to the complainant were duly proved. These findings of the learned trial court are not in dispute.

The learned Trial Court also considered as to whether there was any liability of the accused to pay the admitted dues to the complainant or he was

not at all liable for the dues and had given the cheque to the complainant only to save his service as he was acting in the capacity of Zonal Sales

Manager of his company. The learned Trial Court recorded that it was the accused and only the accused who had approached the complainant in the

capacity of zonal manager of his company for tickets on credit facilities. The tickets were supplied to the accused and no other man of the company

ever visited the complainant. The learned trial court was also of the view that the company is also responsible for the liability but the accused cannot

escape from the liability of the company since he was acting on behalf of the company. The learned trial court also held that it was the accused only

who was responsible for dues to the complainant. The learned Trial Court also recorded that so far as document on behalf of the defence and reply in

terms of Section 313 Cr. P.C. the accused has not denied the liability of the complainant and had falsely deposed that the account pertaining to the

cheque was not his personal account, rather the account of the company.

The learned Trial Court also considered the letter written by the accused in his letter pad to the Managing Director of the complainant company on

25.11.2003 which is as follows:- “As per the letter of the company we will pay the Rly-Ticket within a month. But there is some reason were are

unable to pay the amount. So, that I am submitting my personal cheque with should be kept on hold till sixth Dec, 03 as I intend to give the

company’s cheque before this date in exchange the same.“ Learned Trial Court also considered the defence document of the accused i.e.

Exhibit-A said to be personally delivered to the complainant written on 03.12.03, while the cheque was dated 06.11.2003 and in Exhibit-4 i.e. letter

dated 25.11.2003 the accused-petitioner had written and requested that the cheque should be kept on hold till 06.12.2003 as he was intending to give

the cheque of the company. After considering all these aspects of the matter the learned Trial Court was of the view that the prosecution has been

able to prove the case under section 138 of Negotiable Instruments Act, 1881 beyond all reasonable doubts.

The learned Appellate Court while considering the materials on record found that the accused had admitted in his evidence that he had issued

personal cheque to the complainant company. Learned Appellate Court also found that it was proved by the prosecution that the said cheque was

presented in the bank for encashment which was twice dishonoured consequent upon which the complainant sent a legal notice to the accused through

his lawyer, but in spite of knowledge the accused did not pay the amount to the complainant. Learned Appellate Court was of the considered view that

the signatory of the bounced cheque is clearly responsible for the incriminating act and concluded that the accused was wholly responsible for

bouncing of the cheque and for non-payment of the amount to the complainant. It was held that the learned Trial Court had committed no error in

convicting the accused for offence punishable under Section 138 of the Negotiable Instruments Act.

This Court finds that Section 138 of the Negotiable Instruments Act provides that the cheque should be issued against legally enforceable debt or

liability. This has reference to the nature of debt or liability that it should be legally enforceable, but it nowhere mentions that the cheque should be

issued by the person against whom the debt or liability would be enforced. The word used is “any debt or liability†which would include a cheque

drawn by a person towards legally enforceable debt or liability of any person. Thus, there is no bar in issuance of cheque for discharge of legally

enforceable debt of another person.

In the instant case, the cheque has been issued by the petitioner and the petitioner claims that the debt was legally enforceable against the

company in which he was working and not against him as the petitioner was merely an employee of the company having office at Hyderabad. This

Court finds that vide letter dated 25.11.2003 issued by the petitioner, the complainant was asked by the accused to hold the cheque for some time as it

was likely that his company would issue appropriate cheque in discharge of the entire debt. The cheque was issued by the petitioner only to the extent

of Rs. 88,355/-and the entire amount payable to the complainant-company was to the tune of 1,33,101/-. Thus, the cheque was certainly issued in

discharge of the legally enforceable debt. Further from aforesaid letter dated 25.11.2003, the petitioner clearly intended and indicated that the cheque

was to be encashed if his company did not clear the dues of the complainant. The company having not cleared the dues of the complainant, the

complainant presented the cheque which bounced twice.

This Court finds that the presumption in connection with issuance of cheque that the same was issued against legally enforceable debt could not be

rebutted by the petitioner and the only argument advanced by the petitioner is that there was no legally enforceable debt against the petitioner and the

debt was only against his company. As already held above in para 12 that there is no bar in issuance of cheque for discharge of legally enforceable

debt of another person, there is no merit in the arguments of the learned counsel for the petitioner that the petitioner could not have been convicted for

bouncing of cheque when issued from in personal account though the dues were against the company in which he was working.

So far as the judgment reported in (2005) 8 SCC 89 (Supra) is concerned, the same has no applicability to the facts and circumstances of this case

which relates to vicarious liability of the persons of the company under section 141 of the Negotiable Instruments Act, 1881 when the cheque is issued

by the company. The present case is not related to any vicarious liability which arises when the cheque is issued by the company. In this case, the

cheque is issued by the accused in his personal capacity and his specific case is that the debt was against the company and not against him. As held

above, the petitioner would still be convicted even if he issues his personal cheque in discharge of the dues of the company. The learned appellate

court has rightly held that petitioner being signatory of the bounced cheque is clearly responsible for non-payment of the amount to the complainant

and rightly upheld the conviction of the petitioner for offence under Section 138 of the Negotiable Instruments Act, 1881.

This Court does not find any irregularity, illegality or perversity in conviction of the petitioner for offence under Section 138 of the Negotiable

Instrument Act, 1881.

Accordingly, the present revision petition is hereby dismissed.

Interim order, if any, stands vacated.

Pending interlocutory applications, if any, are closed.

The bail bond furnished by the petitioner is cancelled.

Let the lower court records be immediately sent back to the court concerned.

Let a copy of this order be communicated to the learned court below through FAX/e-mail.