Ratan Saha vs Bappa Das And Ors

Heard Mr. S. Das, learned counsel appearing for the appellant as well as Mr. D. Datta, learned counsel appearing for the respondent No.1 and Mr. S. Debnath, learned Special P.P. appearing for the respondent No.2.

This is an appeal by leave under Section 378 of the Cr.P.C. against the judgment and order of acquittal dated 05.05.2012 delivered in Crl.A.03(1) of 2017 by the Additional Sessions Judge, Gomati Judicial District, Udaipur. A complaint under Section 138 of the Negotiable Instrument Act, N.I. Act in short, was instituted by the appellant in the court of the Chief Judicial Magistrate, Gomati Judicial District, Udaipur being C.R(N.I.)55 of 2015.

The respondent No.1 namely Sri Bappa Das borrowed a sum of Rs.39,000/- from the complainant [the appellant herein] with condition that he will repay the said amount on demand. Subsequently, on demand of the complainant on 27.09.2015, the respondent No.1 [the accused] issued the cheque bearing No.004161 on I.D.B.I. bank, Udaipur branch to repay the loan. On 28.09.2015, the appellant deposited the said cheque for collection in his savings bank account in U.B.I., Udaipur branch. By the letter dated 29.09.2015, the bank informed the complainant "drawers signature differs" and for that reason, the cheque was not honoured. On 27.10.2015, the complainant visited the bank to make the further inquiry in the matter and he was informed that the signature on the cheque was not tallying with the specimen signature of the drawer and at that time, the appellant's banker handed over the letter of I.D.B.I. dated 29.09.2015 along with the original cheque. Prior to 27.10.2015, the complainant had no knowledge about the dishonour of the said cheque by I.D.B.I. bank as no detailed information was passed to the complainant by his banker. On 16.11.2015, the complainant issued a demand notice by registered post with AD through his lawyer.

On 21.11.2015, the respondent No.1 received the demand notice but he did not make the payment. As a result, the appellant had filed the complaint for penal action against the respondent No.1. On taking cognizance, the process was issued. The respondent No.1 appeared in the proceeding as the accused. The substance of accusation under Section 251 of the Cr.P.C. was read over to him. The respondent No.1 denied the accusation.

It appears from the records that to substantiate the accusation, the complainant had examined himself as PW-1 and introduced six documentary evidence namely the said cheque dated 27.09.2015 [Exbt.1], counter-part of the bank deposit slip [Exbt.2], the bank's return memo dated 29.09.2015 [Exbt.3], the demand notice [Exbt.4], the postal receipt [Exbt.5] and the AD card [Exbt.6]. To rebut, the respondent No.1 examined himself as DW-1.

After recording the evidence of the complainant and after examining the respondent No.1 under Section 313, the trial Judge has categorically observed that the cheque was issued in order to discharge the legal debt and liability and he had discarded the contention of the accused [the respondent No.1] that he had purchased a T.V. from the shop of the complainant for Rs.29,000/- out of which Rs.18,000/- was paid in cash and a blank cheque was issued only as security for payment of the balanced money. On 12.07.2015, the accused paid the whole money, but the complainant did not return the cheque and fabricated the story of taking loan from him in order to file the complaint under Section 138 of the N.I. Act. Not only that, even the documents of purchase and the warranty card was not given to the accused. In support of purchase, no document was produced before the court. T.V. that was purchased was also not produced in the trial court. The accused [the respondent No.1] has admitted that he did not make any reply to the demand notice sent by the complainant [the appellant herein]. In para-9 of the judgment dated 05.12.2016 delivered in C.R.(N.I.)55 of 2015, it has been observed by the trial court as follows :

"Moreover, D.W.1 deposed and admitted his signature in Ext.1, the cheque in question and accused also admitted that he has issued the cheque in question. During examination of accused under Section 313 of Cr.P.C. the accused admitted his signature in the cheque in question and also the fact of issuing cheque."

As the questioned cheque [Exbt.1] had been issued by the respondent No.1, the statutory presumption under Sections 118 and 139 of the N.I. Act has been drawn against the accused. Thus, the cheque was deemed to have been issued for discharging the debt or liability. According to the trial Judge, since the existence of legally enforceable debt or liability has been presumed under Section 139 read with Section 118 of the N.I. Act, it was the onus of the accused to rebut the aforesaid presumption [see K. Bhaskaran vs. Sankaran Vaidhyan and Another reported in AIR 1999 SC 3762]. According to the trial Judge, the accused-respondent failed to discharge that onus. It has been observed by the trial Judge further that the court shall in respect of every proceeding under Chapter-XVI including the proceeding under Section 138 of N.I. Act shall presume on production of the banker's slip or the memo having the official mark denoting that the cheque was dishonoured as correct unless, of course, that fact is disproved. Hence, the trial Judge has accepted that the cheque was dishonoured for the reason recorded in the banker's return memo. Further, it has been observed by the trial Judge that since on demand, the amount was not paid, the accused is liable to be convicted under Section 138 of the N.I. Act. But surprisingly, the trial Judge has observed in the said judgment as follows:

"If the fact of dishonor of cheque and demand of cheque amount is made the same is proper notice as in this case. Non mentioning the date of receipt of information of dishonor in the cheque is not fatal for the complainant as Section 138 of the NI Act only requires to make a demand of cheque amount within 30 days from the date of receiving information of the dishonor of cheque (and not from the date of dishonour) and it is not mandated that date of receiving information of dishonor is required to be mentioned in the damand notice."

Based on those finding, the respondent No.1 was convicted under Section 138 of the N.I. Act and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.78,000/- with default stipulation. The said judgment was challenged by the accused. The respondent No.1 under Section 374(3) of the Cr.P.C. in the court of the Sessions Judge, Gomati judicial District , Udaipur being Crl.A No.03(1) of 2017. In the course of time, for deciding, the appeal was transferred to the court of the Additional Sessions Judge, Gomati Judicial District, Udaipur. On hearing the appellant and the respondent, by the judgment dated 05.05.2018, which has been challenged in this appeal, the judgment dated 05.12.2016 was set aside and the accused respondent No.1 was acquitted from the accusation. The basis of such finding of acquittal may be gathered from para-10 of the judgment dated 05.05.2018, which reads as follows :

"At this stage it is to be considered as to whether the only evidence of the complainant that he received information from the bank on 27.10.2015 and before that the bank authority did not give information about dishonor of cheque, is believable or not.

It is settled position of law that the standard/degree of proof in a criminal case stands on a much higher footing that an Civil case which means that the prosecution must prove its case beyond all reasonable doubt.

Again S.3 of the Indian Evidence defines the term Proved" as :-

"A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

Considering the above principal of law in mind, if I look at the evidence of the complainant what I get is that on 28.09.2015, the complainant deposited the cheque for encashment in his account maintained at UBI bank and the same was sent for clearance to IDBI Bank and the cheque was returned on 29.09.2015 and subsequently, on 27.10.2015, he came to know from his banker about the fact of dishonor on the ground of signature mismatch and it was also stated that he had no knowledge about dishonor before 27.10.2015 and on 16.11.2015, the complainant made demand for payment by sending notice through his advocate.

But on perusal of Exbt.4, the demand notice, it appears that the complainant did not mention the date as to when he received the information from the bank about dishonor of cheque. When the complainant incorporated every details in his demand notice dated 16.11.2015, the non-mentioning of date of receiving information from the bank creates a doubt in respect of date of receiving information from the bank. It was for the first time in complaint petition that he disclosed the date of receiving information from the bank. Though, it was not fatal for the complainant in not disclosing the date of receiving the information from the bank in the demand notice, there was scope for the complainant to clarify that point by adducing evidence from the UBI bank but no such evidence from the UBI bank was adduced showing that the complainant received the information from his banker about dishonor of cheque on 27.10.2015.

Thus in absence of evidence in respect of the date of receiving the information from the bank about dishonor, it cannot be said that the complainant proved the fact that he made a demand for payment within 30 days of receiving the information of dishonor of cheque from the bank, which is mandatory to be proved before application of penal provision of S. 138 of the N.I. Act."

Mr. S. Das, learned counsel appearing for the complainant has submitted that after taking the cognizance, the issue of limitation cannot be looked into. Moreover, there is no limitation, inasmuch as, the knowledge in respect of dishonor of cheque was available to the complainant only on 27.10.2015 and the demand notice was issued on 16.11.2015 as would be evident from Exbt.4. That apart, Mr. Das, learned counsel has submitted that the trial Judge has correctly drawn the presumption in respect of legally enforceable debt under Section 139 of the N.I. Act. In this respect he has relied on two decisions of the apex court in T. Vasantha Kumar versus Vijaya Kumari reported in (2015) 8 SCC 378 and Rangappa versus Sri Mohan reported in (2010) 11 SCC 441.

In reply, Mr. D. Datta, learned counsel appearing for the respondent No.1 has submitted that the judgment of acquittal is based on sound analogy. The plea that has been raised that after taking of cognizance, the objection relating to limitation cannot be raised, is grossly misconceived, as in a complaint proceeding, the accused does not have opportunity to raise any objection at the time of taking cognizance. Moreover, Mr. Datta, learned counsel has submitted that even though, Sections 118 and 139 of the N.I. Act provide drawing of statutory presumption in respect of legally enforceable debt or liability on the basis of the cheque duly drawn, the primary burden as to the legally enforceable debt or liability be discharged by the complainant proving the foundational fact. In this regard, a reference has been made to K.N. Beena versus Muniyappan and Another reported in (2001) 8 SCC 458 where the apex court has observed as follows :

"8. In this case admittedly the 1st Respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/averments in his reply dated 21.05.1993 were sufficient to shift the burden of proof onto the Appellant complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1st Respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The 1st Respondent not having led any evidence could not be said to have discharged the burden cast on him. The 1st Respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability, the conviction as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction."

This decision is contrast to the plea as raised by Mr. Datta, learned counsel appearing for the respondent No.1.

Having appreciated the submissions of the learned counsel of the parties and scrutinized the records, this court finds that the complainant in his evidence even did not state that he got the information on 27.10.2015, in the face of the records that I.D.B.I. by their letter dated 29.09.2015 informed the UBI, the reason for dishonor as drawer signature differs. Therefore, the reason was disclosed on 27.10.2015 but when the UBI has done so, is not borne in the evidence. The statement in the complaint in this regard may be taken as primafacie material for purpose of cognizance but unless such statement is proved by the complainant, that cannot be treated as the evidence in respect of that fact. Section 138(c) of the N.I. Act provides that the drawer of such dishonoured cheque if 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 thirty days of the receipt of the said notice may institute the complaint for offence punishable under Section 138. If the complainant however is prevented by any sufficient cause, that may be condoned by the Magistrate with prior notice to the accused. It goes without saying that the complaint should contain the following ingredients:

(i) there is a legally enforceable debt or liability.

(ii) the cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt.

(iii) cheque so issued had been returned due to insufficiency of fund (see Krishna Janardhan Bhatt versus Dattatraya G. Hegde, reported in (2008) 4 SCC 54).

On the face of the records and in absence of the evidence that the reason for dishonour of cheque was disclosed by UBI on 27.10.2015 and the return memo with cause of dishonour being issued on 29.09.2015, the complaint was clearly barred under Section 138(c) of the Negotiable Instrument Act. That apart, the cheque was not dishonored for insufficiency of fund or the amount of money standing in the credit of the account was insufficient to honour the cheque. Thus, the cause cannot be treated sufficient to institute a complaint under Section 138 of the N.I. Act. The evidence of the accused that the signature on the cheque belongs to him will not help the situation, as the court cannot in exercise its jurisdiction for the act which falls in the exclusive domain of the concerned bank for transaction. It was the duty of the accused to instruct the bank to honour the said cheque with information to the complainant, but he had not done so. For that, no criminal action under Section 138 of the N.I. Act can be instituted. The said occasion might however, give rise of further criminal liability, based on the conduct of the accused, under Section 420 of the IPC. In that circumstance, the remedy of the complainant would have been different, but he has instituted the complaint which is manifestly barred by Section 138(c) of the N.I. Act as the complainant did not make any application even for condoning the delay on assigning sufficient cause which prevented him from approaching the Magistrate within the prescribed limitation.

Thus, the finding of the appellate court below does not warrant any interference an accordingly, the appeal stands dismissed.

Send down the records forthwith.