Jharkhand High Court
Sanjay Agarwal vs The State Of Jharkhand on 24 June, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No.795 of 2016
Sanjay Agarwal, son of Late Babulal Agarwal, resident of Village Malincha
Road, Hara Karkhana Bhawanpur, Kharagpur, P.O. & P.S. Kharagpur
Local, District-West Midnapur (W.B) ...... Petitioner
Versus
1. The State of Jharkhand
2. Ramesh Kumar Dhanuka, s/o Lt. Satyanaryan Dhanuka, R/o Charchka,
P.S. Dhalbhumgarh, East Singhbhum
......Opposite Parties
.....
For the Petitioner : Mr. T.K. Mahto, Advocate
For the State : Mrs. Vandana Bharti, Addl.P.P
For the O.P. No.2 : Mr. Jitendra S. Singh, Advocate
Mr. Aniket Ranjan, Advocate
Mr. Vishal Kumar Binay, Advocate
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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JUDGMENT
C.A.V.On 08/05/2024 Pronounced On: 24/ 06/2024
1. The instant Criminal Revision is directed against judgment dated 01.06.2016 passed by learned Additional Sessions Judge, Ghatshila in Criminal Appeal No. 61 of 2016, whereby and whereunder, the judgment of conviction and order of sentence dated 19.03.2016 for the offence under section 138 of N.I. Act passed against the petitioner/appellant vide complaint case No.99 of 2011 (T.R. No.15 of 2016) passed by learned Judicial Magistrate First Class, Ghatshila, whereby the petitioner sentenced for SI for one year along with fine of Rs.28 lakhs as compensation has been upheld and confirmed.
2. The factual matrix giving rise to this revision is that one Ramesh Kumar Dhanuka instituted the aforesaid complaint case against the petitioner stating inter alia that petitioner is carrying on a business of sugar under the Name and Style, Nurshingardh Traders at Kharagpur, (West Bengal) and the complainant used to carry on sugar business. It is further alleged that earlier the petitioner came to the shop of the complainant and expressed his willingness to purchase sugar on credit which he refused. Later on, upon request of accused-petitioner and his guarantors Pradeep Agrawal and Suresh Agrawal on 05.07.2011, the complainant sold sugar on credit worth Rs.5,09,060/- on 07.07.2011 and again in the month of July itself, the complainant sold sugar worth Rs.34,21,790/- on guarantee of Pradeep Agrawal and Suresh Agrawal. It is further alleged that on demand for payment of the credit, the present petitioner issued two cheques drawn on HDFC Bank, Kharagpur Branch, W.B in favour of the complainant vide cheque No.008080 dated 20.07.2011 of Rs.10 lakhs and another cheque bearing Cheque No.008081 dated 20.07.2011 of Rs.10.50 lakhs total amount of Rs.20,50,000/- and assured him that on presentation of aforesaid cheques would be honoured. The complainant deposited the above both cheques as per instruction of Sanjay Agarwal (petitioner) for encashment in his account maintained with Bank Of India, Saragasole Branch, which were dishonoured on 28.07.2011 with endorsement "payment stopped by the drawer". Thereafter, the complainant contacted with the present petitioner and other co-accused persons, who are partners of the firms, who expressed their apology and advised to deposit the said cheques again, which shall be honoured. Accordingly, the complainant deposited both cheques on 16.08.2011 in his bank, which were again dishonoured on 19.08.2011 with endorsement "payment stopped by the drawer" (Ext.1 & 1/1).
The complainant sent a legal notice dated 07.09.2011 (Ext.2) to the present petitioner who has drawn cheques (Ext.1 & 1/1) in his favour with 2 Criminal Revision No.795 of 2016 Return Memo with endorsement of stop payment (Ext.3 - 3/1), praying to refund the cheques amount within 15 days from the receipt of the notice but no reply was made. Thereafter, this complainant case was lodged within stipulated time.
3. Learned trial court took cognizance for the offences under section 138 of N.I. Act against the petitioner vide order dated 19.07.2012 and issued summons against him. The present petitioner appeared and substance of accusation was explained to him on 22.05.2014 to which he pleaded not guilty and claimed for trial.
4. In course of trial, the complainant has examined three witnesses namely C.W. 1 Raj Kishore Mishra, C.W 2 Ramesh Kumdar Dhanuka (Complainat) and C.W.3 Kishan Kumar Singh and also adduced the following documentary evidence:-
Ext.1- cheque No.008080 HDFC Bank, Kharakpur dated 20.07.2011 Ext.-1/1 Cheque No.008081 of HDFC Bank, Kharakpur dated 20.07.2011 Ext.-2 is the office copy of demand notice for the cheque amount dated 07.09.2011 Ext.3 is cheque return memo of cheque number 008081 Ext.3/1 is cheque return memo of cheque number 008080
5. In his statement under section 313 of Cr.PC, the accused-petitioner has admitted the issuance of cheques in favour of the complainant in his signature however denied any liability and stated that above cheques were delivered to the complainant due to family relations to be used as per 3 Criminal Revision No.795 of 2016 necessity, otherwise to be returned. It is further pleaded that the complainant told him about misplace of cheques then he instructed the bankers for stop payment. The cheques were meant for private use of the complainant and there was no liability of the accused-petitioner against the complainant. After considering the oral as well as documentary evidence adduced by the complainant and the plea of the defence, the learned trial court has held the petitioner guilty for the offences under section 138 of N.I. Act and sentenced him to undergo SI of one year along with fine of Rs.28 lakhs as compensation which has been upheld and confirmed by the appellate court also and challenged in this revision.
6. Learned counsel for the petitioner has strenuously argued that both courts below have not properly considered the issues involve in this case. The complaint case registered under section 138 of NI Act was not maintainable as there is no evidence on record about mode of service of legal notice demanding the cheque amount against the petitioner. No postal receipt and acknowledgment showing receipt of notice by the petitioner has been adduced in this case. The petitioner has denied specifically that he has purchased nothing from the complainant and due to family and friendly relationship cheques were issued by the petitioner in favour of the complainant and on information of the complainant that the cheques have been misplaced instruction for stop the payment was given to the bank. Hence, no offence under section 138 of N.I. Act is constituted in the present scenario of the case. It is further submitted that the complainant has categorically stated that in his income tax, he has not mentioned any supply of sugar of such a huge quantity in favour of the petitioner and its value. In 4 Criminal Revision No.795 of 2016 totality of circumstances, the petitioner has to be acquitted and his conviction and sentence is absolutely illegal perverse and not warranted under law, which is fit to be set aside by allowing this revision.
7. On the other hand, learned A.P.P. for the State assisted by learned counsel for the opposite party No.2 has vehemently opposed the aforesaid contentions raised on behalf of the petitioner and submitted that the plea of non-receipt of legal notice demanding the cheque amount from the petitioner issued by the complainant was never challenged the disputed by the petitioner during the course of trial or at the appellate stage. The learned appellate court has also considered the evidence of the complainant that in the case of selling sugar, no income tax was required. Moreover, the tax matter is a distinct question and even after realization of amount of petitioner that might be subject matter of income tax, if applicable, which can not be sole ground for denial of genuine claim of complainant. No case has been made out by the petitioner showing any reasonable ground to entertain his pleas taken at the present stage of proceeding. There is no merit in this revision and petitioner is taking a dilatory tactics to frustrate the reasonable claim of the complainant in this way and that way showing his malafide intents. Therefore, this revision petition is fit to be dismissed.
8. I have given anxious consideration on rival contentions of the learned counsel for the respective parties. It is crystal clear from record that legal notice demanding for the cheques amount with specific description of purchase of sugar by the petitioner from the complainant has been mentioned with all accuracy. The issuance of two cheques of the amount mentioned in the complaint has also been admitted by the petitioner. The 5 Criminal Revision No.795 of 2016 receipt of legal notice(Ext.2) has never been challenged or denied by the petitioner in course of trial or at the appellate stage. The existence of legally enforceable liability of the petitioner in favour of the complainant has also not been rebutted by the petitioner by placing any cogent and reliable evidence except bald denial in the statement under section 313 of Cr.PC but the question of payment of income tax regarding the dues or supply is not a matter connected with the allegations of present case.
9. It is pertinent to quote the principle laid down by the Apex Court in C.C Alavi Haji Vs Palpetty Muhammad & Anr. (2007) 6 SCC 555, wherein the Hon'ble Apex Court has held as under:-
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under 6 Criminal Revision No.795 of 2016 Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. ............"
10.In my considered view, there are no valid reasons calling for any interference in the concurrent findings of guilt of present petitioner for the offence under section 138 of NI Act.
11.In view of the aforesaid discussions and reasons, this revision appears to be devoid of merits and hereby dismissed.
12.Pending I.As., if any, is disposed of accordingly.
13.Let the copy of this order along with record of trial court be sent back for information and needful.
(Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi Date: 24/ 06/2024 Pappu/- N.A.F.R. 7 Criminal Revision No.795 of 2016