Lokesh Singh Bohra vs State Of Uttarakhand And Another on 25 April, 2013

[Cites 8, Cited by 1]

Uttarakhand High Court

Lokesh Singh Bohra vs State Of Uttarakhand And Another on 25 April, 2013

Bench: U.C. Dhyani

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL

               Criminal Revision No. 84 of 2009
                 (Under Section 397/401 Cr.P.C.)



Lokesh Singh Bohra                          ...........Revisionist


                              versus


State of Uttarakhand and another          .......... Respondents


Ms. Pushpa Joshi, Senior Advocate, assisted by Mr. Saurabh Adhikari
Advocate, present for the revisionist.
Mr. P.S Soun, learned AGA, present for the respondents no. 1 /State.
Mr. Prem Kaushal, Advocate, present for the respondent no. 2.




Hon'ble U.C. Dhyani, J. (Oral)

1. The case of respondent no. 2 is that the revisionist, who was due in a sum of Rs. 85,000/- issued a cheque in respect of his liability, and when the cheque was presented for encashment, the same was returned with an endorsement of 'insufficiency of funds'. The respondent no. 2 then issued a notice to the revisionist demanding the payment and in spite of service of notice, the revisionist failed to pay the amount covered by the cheque and thus committed an offence under Section 138 of the Negotiable Insturments Act, 1881 and, accordingly, approached the learned Magistrate for appropriate reliefs.

2. Learned Magistrate, after taking cognizance of the offence, recorded the evidence of the parties, and after analyzing the 2 same, found the accused-revisionist guilty of the offence punishable under Section 138 of the Act. The accused- revisionist was sentenced appropriately.

3. Aggrieved against the said order, the accused filed appeal before the Sessions Judge, who, eventually, affirmed the judgment of conviction and sentence passed by learned Magistrate.

4. Having received two consecutive adverse orders, the accused preferred this criminal revision before this Court.

5. I have heard learned counsel for the parties at length and perused the material on record. I proceed with the grounds taken up by the Revisionist, one by one.

6. Ground No. 1: - The first ground, which is taken by the revisionist is that the notice allegedly given by the respondent no. 2 is not proved. It is not proved as to when the same was served upon the revisionist. Notice was said to have been given on 18.02.2006 and the complaint was filed on 01.04.2006. It is the requirement of Section 138 of the Negotiable Instruments Act, 1881, that the complainant should provide as to when the notice was served upon the revisionist, but the trial court as well as the appellate court did not consider this legal aspect.

7. Learned counsel for the revisionist argued that it was not mentioned in the complaint as to when the notice was served. The same remained un-served and was also not returned. It was also necessary for the complainant to have indicated the same in the complaint in order to calculate the time.

8. Learned counsel for the respondent no. 2, on the other hand, submitted that this plea cannot be raised at this stage. The revisionist could have raised this plea before the trial court as well as the appellate court.

9. A look at the judgment of the trial court reveals that the respondent no. 2 sent a notice to the revisionist for payment of Rs.85,000/-on 18.02.2006, which was served upon the revisionist, but the revisionist neither replied the notice nor made a payment of Rs. 85,000/- to the respondent no. 2.

10. It was also indicated by the trial court in para 7 of it's judgment that the respondent no. 2 proved the original cheque no. 158611 (Ext. Ka-2) information relating to dishonour of cheque (Exts. Ka-3 and Ka-4), notice (Ext. Ka-5), receipt (Ext. Ka-6) and complaint (Ext. Ka-7), as also the fact that no payment of Rs. 85,000/- was made to respondent no. 2.

11. Learned trial court in para no. 8 of judgment said that PW 2 proved the fact that the amount of money standing to the credit of the revisionist was insufficient to honour the cheque. PW 2 also proved the written intimation (Ext. Ka-9) regarding dishonour of cheque.

12. Learned appellate court in internal page 3 of it's judgment has said that there was no document available on record to show that the accused made the payment of money during the period of notice or after the period of notice was expired. If his cheque was lost, why did he not request the bank concerned for "stop payment"?

13. It was held by the Hon'ble Superme Court C.C.Alavi Haji vs. Palapetti Mohammed and another, (2007) 6 SCC 555 that once the notice is sent by registered post by correctly addressing the drawer of the cheque, the service of notice is deemed to have been effected. Mandatory requirement of issue of notice in terms of Section 138 proviso (b) stands complied with when the notice is sent in the said manner. Hon'ble Apex Court held the same on the strength of Section 27 General Clauses Act and Section 114 of the Evidence Act. In view of the same, the revisionist in the instant case, cannot contend that there was no proper service of notice.

14. Ground No. 2: - The second ground which is taken up by the revisionist is that the cheque in question is not covered by the definition of 'Negotiable Instrument' and the courts below did not appreciate this legal aspect of the case. A bare look at the definition of 'Negotiable Instrument' as given in Section 13 of the Negotiable Instruments Act, 1881 suggests that the same includes a cheque payable either to order or to bearer. The cheque issued by the revisionist to the respondent no. 2 in the instant case is thus covered by the definition of 'negotiable instrument'.

15. Ground No. 3: - The third ground which is taken up by the revisionist is that it is proved by evidence that the impugned cheque was lost and used by the respondent but the trial court has not considered this fact while convicting the revisionist.

16. Learned counsel for the revisionist submitted that it was a 'self' cheque, which was lost and information to this effect was given to the bank. It is also submitted that DW 1 proved 5 that the cheques were lost. According to the learned counsel for the revisionist, 'he (respondent no. 2) was not holder in due course'.

17. Learned counsel for the respondent no. 2, on the other hand, submitted that the said cheque was lost on 15.07.2005. Respondent no. 2 was issued cheque on 15.11.2005, which was dishonoured on 02.02.2006. Revisionist, in this case, can not take the plea that the cheque was lost, in as much as, the said fact is contrary to the material on record.

18. The ruling of Rajkumar Khurana vs. State (NCT of Delhi) and another, (2009) 2 SCC (Cri.) 936 is plaed before me by the learned counsel for the revisionist. The facts of the case of Rajkumar Khurana are distinct from the facts of the instant case. It was held in Rajkumar Khurana's case that Section 138 of the Act creates a legal fiction of deemed commission of offence when a cheque is dishonoured due to insufficiency of funds, but this fiction does not extend to lost cheque. The appellant in Rajkumar Khurana's case was drawer of cheque in question, reported to police as well as to the bank that two unfilled cheques which were signed by him were lost. When the cheque in question was presented for payment, the bank returned with remarks "said cheque reported lost by the drawer". The facts of the instant case are different, in as much as, the cheque in question here was returned by the bank with remarks 'insufficiency of funds'. No first information report was lodged in this respect because of the reasons best known to the revisionist. Because of this reason also, the respondent no. 2 in this case cannot be said to be 'non-holder in due course".

19. No 'Stop Payment' instructions were given to the bank by the revisionist. The accused was aware of the fact that the cheque was with the complainant. The very fact that the accused failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version. Mere intimation to the bank regarding loss of cheque was not enough. No FIR was lodged and no 'Stop Payment' instructions were given to the Bank. Half hearted and unsuccessful attempts were made by the revisionist for saving himself from the liability under the law relating to Negotiable Instruments.

20. Ground No. 4: - The fourth ground, which is taken up by the learned counsel for the revisionist is that the amount of cheque is not proved by the respondent no. 2. It was not proved whether it was the debt? On which account it was given ?

21. It is the contention of the learned counsel for the revisionist that it is not legally recoverable debt. He cannot claim the same on behalf of the helper (of the bus), who was not examined by the trial court. There was no authority letter of the helper in favour of the respondent no. 2. The total sum comes to Rs. 78, 350/-. Then how he is claiming Rs. 80,000/- plus. It is also the contention of the learned counsel for the revisionist that whereas the respondent has specifically stated in the complaint that the balance amount was Rs. 83,000/- due on the revisionist, but the cheque of Rs. 85,000/- was asked for, which was more than the due amount, but no reason was assigned for the same as to why the excess amount was being demanded? Learned counsel for the respondent no. 2, on the other hand, submitted that why the revisionist did not raise this 7 plea before the Courts below? Apart from not raising a probable defence, the revisionist accused was not able to contest the existence of a legally enforceable debt or liability.

22. Learned trial court in paras no. 9 & 10 of the judgment has addressed the said issues. An information regarding loss of 'self' cheques was given by the revisionist on 15.07.2005 to the bank, but no FIR was lodged regarding the same. The bank, on 02.02.2006, made an endorsement on the cheque regarding "insufficiency of funds". Learned trial court said that a cheque of Rs. 85,000/- was given by the revisionist. A complete explanation of the calculation was given by the trial court in para no. 9 of it's judgment saying that there was relationship of employee and employer between the respondent no. 2 and revisionist, a sum of Rs. 83,350/- was due to the employee and therefore, employer issued a cheque of Rs. 85,000/-. Learned trial court has also given the reasons for not issuing instructions to the bank for stop payment (by the revisionist) and it's fall out. The said cheque was given by the accused-revisionist to the complainant and was in the possession of the latter (complainant) and thus, he was 'holder in due course'. The intimation by the accused-revisionist to the bank concerned regarding loss of cheque was nothing but a 'camouflage' to save himself from his liability and that is why, he did not instruct the bank for 'stop payment'.

23. Each and every aspect of the complaint was elaborately dealt with by the trial court. Two legal aspects, viz., payment made towards the dues of helper and notice as well as loss of the cheque in question were also dealt with by the learned Sessions Judge, Almora/Appellate Court.

24. Complaint under Section 138 of the Negotiable Instruments Act, 1881 must contain the following ingredients, viz, (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt, and (iii) cheque so issued had been returned due to insufficiency of funds. Learned trial court has gone into the details of each and every aspect of the complaint, to the satisfaction of this Court. No additional input is required to be made in this behalf. Ground No. 5 is thus taken care of by holding that the offence under section 138 of the Act is made out and proved against the revisionist on the basis of material on record.

25. This Court thus finds no reason to interfere with the impugned judgments and orders passed by the courts below, who recorded concurrent findings as regards the guilt of the revisionist.

26. This Court finds no force in the criminal revision and the same is accordingly dismissed.

27. This Court, while admitting the revision, directed the revisionist to deposit Rs. 1,30,000/- in the trial court, who, in turn, was directed to invest the amount in automatically renewable fixed deposit yielding maximum interest. The deposit was subject to the final result of the revision.

28. It is accordingly directed that a sum of Rs. 1,25,000/- and interest accrued thereon be released in favour of the 9 respondent no. 2 as compensation. The balance be deposited in favour of respondent no. 1 as payment of fine.

(U.C. Dhyani, J.) 25.04.2013 Kaushal 10

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