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Jharkhand High Court

Ram Prasad Sahu vs Pandey Giri & Ors. on 22 January, 2009

Equivalent citations: AIR 2009 (NOC) 2573 (JHA), 2009 CRI. L. J. 3768, 2009 (2) AIR JHAR R 1007, (2010) 1 ICC 186, (2009) 1 EASTCRIC 430, (2010) 1 RECCRIR 165, (2009) 3 BANKCAS 415, (2010) 1 NIJ 142, (2010) 1 ALLCRILR 68, AIR 2009 (NOC) 2573 (JHAR)

Author: Jaya Roy

Bench: Jaya Roy

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          Complaint Appeal No. 5 of 1997 ®
                                     ---
             Ram Prasad Sahu                       ....     .... Appellant
                                  Versus
             Pandey Giri and another               ....     .... Respondents
                                       ----
             CORAM:           HON'BLE MRS. JUSTICE JAYA ROY
                                       -----
             For the Appellant :       Mr. A.K. Sahni
             For the Respondents:      None
                          ----
12/ 22.01.2009

Heard learned counsel for the appellant.

2. The complainant-appellant has filed the instant appeal for setting aside the impugned judgment dated 10th April, 1996 passed by Sri Dinesh Prasad Singh, Judicial Magistrate, Ist Class, Ranchi in complaint case no. 274 of 1993 corresponding to Trial No. 553 of 1996 after granting leave by this Court.

3. The complaint case in brief is that the appellant has entered into an agreement with the respondent for sale of his house for which a cheque was issued on 04.04.1993 amounting to Rs. 3,000/- by the respondent which was dishonoured by the bank due to insufficient amount in the account. An Advocate notice was sent on 04.09.1993 by registered post with A/D, but no amount was deposited or sent by the respondent to him. Hence, this case was filed. The complainant examined three witnessed in this case including himself as PW 1. PW 2, Pradip Kumar Mukherjee, a formal witness who proved the notice dated 04.09.1993 and PW 3, Bipin Kumar Deogharia, is a witness to prove the issuance of a cheque in question by the accused respondent. After considering the oral and documentary evidence of the witnesses, the trial court has given its finding to the effect that the complainant has failed to prove whether the notice was actually received by the accused or not.

4. Learned counsel for the appellant submits that he has sent the notice under registered post to the accused-respondent, but the same was returned with an endorsement "refused" on 08.09.1993 (exhibit 4) and the appellant has filed the complaint case in October, 1993. Thus, the appellant submits that he has complied the provision of Section 138

(c) of The Negotiable Instruments Act which reads as under:-

" 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"

5. Learned counsel for the appellant further submits that the finding of the trial court is wholly illegal as the complainant has complied the provision of Section 138 (c) of the N.I. Act properly and it is not heed of Clause (c) of provision of Section 138 N.I. Act.

6. I perused the exhibit 4 and I find that there is an endorsement "refused", but there is no signature of any of the witness before whom the accused person refused to take the said notice or any signature made by the accused himself on the said letter. Thus, it is not possible to hold that the said letter (exhibit-4) has actually been refused by the accused.

7. I further find that the complainant has not examined the postal Peon who went to deliver the said letter, exhibit 4, to the accused respondent. On the contrary, the complainant has stated in his evidence that the notice carries the endorsement made by him.

8. The complainant has further stated in his evidence that the house for which the cheque was given to him, did not belong to him, neither at the time of agreement nor even on the day of his evidence. The complainant has not produced the said agreement in the court. All these circumstances cannot be ignored and it can be said safely that the case of the complainant is not based on a firm platform.

9. The Hon'ble Apex Court has observed in a number of cases that in the matter for considering the judgment of acquittal the High Court is required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstratively unsustainable.

10. Considering the whole aspect thoroughly, in my opinion, the complainant has failed to prove his case and also failed to comply the provision of Section 138 (c) of the N.I. Act. I further find that the alleged occurrence took place in the year 1993 and the trial court has concluded its trial by order of acquittal on 10th April, 1996. Therefore, to remand the case for fresh evidence in respect to the compliance of Section 138 (c) of the N.I. Act i.e. practically for protracted trial, it will be a great injustice to the accused persons, as such, I am not inclined to interfere with the order of the acquittal. Accordingly, this appeal is dismissed.

(Jaya Roy, J) VK