Gauhati High Court
Dr. Jiten Barkakoti vs Subrata Patangia And Anr. on 26 April, 2005
Equivalent citations: III(2006)BC196, 2005CRILJ3598, 2006(1)KLT674, 2005 CRI. L. J. 3598, (2006) 37 ALLINDCAS 636 (GAU), 2006 (37) ALLINDCAS 636, (2006) 1 CIVLJ 859, (2005) 4 ALLCRILR 729, (2006) 1 EASTCRIC 158, (2006) 1 CIVILCOURTC 654, (2006) 1 KER LT 674, (2006) 3 BANKCAS 196, (2005) 2 GAU LT 558, (2007) 1 BANKCLR 224
ORDER P.G. Agarwal, J.
1. Heard Mr. J.M. Choudhury, learned Sr. Counsel, assisted by Mr. D. Talukdar, for the petitioner and Mr. K. Agarwal, learned counsel appearing for the respondent-complainant.
2. The complainant, Shri Subrata Patangia, filed a written complaint stating, inter alia, that the petitioner, Dr. Jiten Barkakopty, who is a Medical Practitioner of Tezpur Town, had issued a cheque, bearing No. 165072 dt. 4-1-2000, for Rs. 40,000/-. The cheque was drawn in favour of the State Bank of India, Tezpur Bazar (Evening Branch) and it was a self-cheque and was handed-over to the complainant for withdrawal. The complainant deposited the said cheque in his bank account No. 50/19694 but the said cheque was returned unpaid. On receipt of the rejection memo, the complainant served a notice through his advocate on 16-12-2000 but in spite of the receipt of the statutory notice, the drawer of the cheque, Dr. Jiten Barkakoty, petitioner in this revision, did not arrange to make the payment. The petitioner, therefore, filed the complaint, which was registered as C. R. 14/ 2001. The petitioner-accused was tried by the Additional Chief Judicial Magistrate, Sonitpur, Tezpur and the learned trial Court vide the judgment dated 30-7-2002 convicted the accused petitioner under Section 138 of the Negotiable Instruments Act, for short the Act, and sentenced him with a fine of Rs. 80,000/-, in default to, imprisonment for six months.
3. Feeling aggrieved, the petitioner preferred Criminal Appeal No. 2.9 (S-3)/2002 and vide the impugned judgment, the learned Sessions Judge, Sonitpur, Tezpur, dismissed the appeal, affirming the order of conviction and sentence passed by the trial Court. Hence, the present revision.
4. Shri Choudhury, learned .Sr. Advocate, had challenged the order of conviction and sentence on the sole ground that the complainant was not the holder in due course in respect of the cheque No. 165072 for Rs. 40,000/- and, as such, the petitioner cannot be held guilty under Section 138 of the Act. In the present case, there is no dispute at the Bar that the above cheque was a self-drawn cheque. The cheque was produced before the Court and it is available in the record and marked as Ext. I and we have perused the same and find that this is a selfcheque under the signature of the petitioner-accused. The signatures in the body of the said cheque are not disputed by the petitioner.
Section 9 of the Act reads as follows :
"9. 'Holder in due course'.- 'Holder in due course' means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if (payable to order,) before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title."
5. Learned counsel for the respondent complainant was fair enough to submit that Ext. 1, cheque, was not payable to bearer or to the complainant. It was a self-drawn cheque and there is also no endorsement anywhere in the body of the cheque for payment of the amount in favour of the complainant. Thus, we find that the provision of Sections 13 and 14 of the Act as regards the bearer cheque and even the provision of Sections 15 and 16, as regards endorsement, are not at all applicable to the present case as admittedly it was not a bearer cheque in favour of the complainant nor Ext. 1 contained any endorsement under Section 15 or 16 of the Act.
6. Learned counsel for the respondent has submitted as regards the presumption available under Section 118 of the Act. Presumption under the above section is in respect of consideration whether the complainant is found to be holder in due course and as such in order to give the benefit of provision of Section 118 of the Act, the complainant is required to establish that he was a holder in due course. We have perused the ¦ impugned judgment passed by the appellate Court which has relied on a decision of the Apex Court in the case of Maruti Udyog Ltd. v. Narendra, . In the case of Hiten P. Dalal v. Bratindranath Banerjee, , the Apex Court held that it is obligatory on the Court to raise presumption under Section 118 of the Act in every case where the factual basis for raising of the presumption had been established. The appellate Court had also referred to a decision of the Apex Courtin the case of K.N. Beena v. Muniyappan. The decision in K.N. Beena (supra) is regarding raising of presumption under Section 118A of the Act only when the pre-requisite of Section 138 of the Act are complied with. The question of drawal of presumption, therefore, will arise only when it is held that the cheque was issued by the accused person to another person or that the cpmplainant was the payee or holder in due course of the cheque, as the case may be. Section 138 of the Act reads as follows :
"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 or 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 extend to one year, 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 fifteen 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."
7. Shri Agarwal, learned counsel for the respondent-complainant has referred to the definition of 'holder' as provided in Section 8 of the Act and submits that the complainant being the 'holder' of the cheque had the authority to initiate prosecution " dishonour of the cheque. Clause (b) to the proviso of Section 138, as quoted above, makes the thing clear that the demand for payment or dishonour of the cheque is to be made either by the payee or the holder in due course' of the cheque. It does not. include 'holder', as defined in Section 8 of the Act. Admittedly, the complainant in the present case was neither the payee nor the 'holder' in due course of the cheque in question. There was also no endorsement in favour of the complainant. In the case of Shri Ishwar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609 : (2001 Cri LJ 1250) the Apex Court had observed :
"It is always to be kept in mind that Section 138 of the Act creates an offence and the law relating to the penal provision has to be interpreted strictly so that no one can ingeniously or insidiously or guilefully or strategically be prosecuted."
8. Reverting 'to the facts of the present case, we find that Ext. I is a self;drawn cheque, It was not issued in favour of the complaint. It was also not endorsed in favour of the complainant. Hence, the provisions of Sections 118 and 139 of the Act are not applicable as the complainant is neither a payee nor a holder in due course and the dishonour of such self-drawn cheque does not amount to penal offence under Section 138 of the N. I. Act. We, therefore, hold that the trial Court, as well as, the appellate Court failed to correctly appreciate the provisions of the N. i. Act in holding the petitioner-accused Dr. Jiten Barkakoti guilty of the offence under Section 138 of the N. I. Act for dishonour of a self-drawn cheque, which was never endorsed in favour of any one.
9. In the result, the revision is allowed. The impugned order of conviction and sentence entered into by the trial Court and affirmed by the appellate Court is set aside. The accused petitioner is acquitted of the charge and be set at liberty forthwith. He need not surrender to his bail bonds.