Jharkhand High Court
Paramhansh Singh vs The State Of Jharkhand on 25 July, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. (D.B.) No. 725 of 2018
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Paramhansh Singh .. Petitioner
vs.-
1. The State of Jharkhand
2. Digvijay Singh ... Opposite parties
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CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Petitioner : Mr. Gautam Kumar, Adv.
For the Opposite party no. 2 : Mr. Kalyan Banerjee, Adv.
For the State : Mr. Sanjay Kr. Pandey, A.P.P
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05/25.7.2018 Heard learned counsel for the parties.
2. Petitioner seeks special leave to appeal in terms of Section 378(4) of the Code of Criminal Procedure against the judgment of acquittal dated 20th January, 2018 passed by learned Judicial Magistrate, 1st Class, Dhanbad in C. P. Case No. 1789 of 2015/T.R. Case No. 1761 of 2018, whereunder the sole accused/opposite party no. 2 has been acquitted of the charge under Section 138 of Negotiable Instrument Act.
3. Complainant alleged that the accused being the owner of depot run in the name and style of M/s. N. K. Coal at Barwadda, used to purchase coal from his Firm M/s. Jai Bajrang Enterprises at Hetlibandh, Jharia, District-Dhanbad on credit during the period 17th November, 2012 to 23rd February, 2013. On several requests, he handed over three Cheques to the complainant bearing nos. 009079 dated 27 th April, 2015 of Rs. 1 lakh, 009082 dated 4th May, 2015 of Rs. 2 lakhs and 009083 dated 25th May, 2015 of Rs. 4,67,261.00 drawn at Union Bank of India, DGMS Branch, Dhanbad for payment of his outstanding dues to the tune of Rs. 7,67,261.46/-. These three Cheques on being deposited on 8th June, 2015 were dishonoured for want of insufficient fund as per return memo dated 10th June, 2015 issued by the Bank. Complainant sent legal notice through speed post and courier on 17th June, 2015, which was received on 18th June, 2015. However, the accused did not reply neither repaid the amount. The complaint case was instituted under the aforesaid section thereafter.
4. The accused was summoned to face trial under Section 138 of N.I. 2. Act after examining the complainant on Solemn Affirmation vide order dated 10th September, 2015. On his appearance, accusation was explained to him to which he pleaded not guilty and claimed to be tried. Statement of the accused under Section 313 Cr.P.C was recorded on 20th June, 2017. His case was that the Cheques were issued as security.
5. During trial complainant examined himself as C.W.-1 and produced the following documents:
"Cheque no. 009079, Cheque no. 009082 and Cheque no. 009083 Ext.-1, 1/1, 1/2 respectively. Deposit slip dated 08.06.15 Ext.-2, Cheques' return memos Ext.-3, 3/1 and 3/2 respectively, Cheque return memo of HDFC, Dhanbad dated 10.06.15 and it has been marked Ext.-4, Signature of P.W.1 and signature of his advocate on each pages of the legal notice has been marked Ext.- 5, 5/1, 5/2 and 5/3 respectively, Speed post and courier slip has been marked Ext.-6, Receiving of courier has been marked Ext.- 7 and he identified his signature and his advocate's signature on each pages of the complaint petition and the whole complaint petition has been marked Ext.-8 and 8/1 respectively."
C.W.-1 supported his case in full during examination-in-chief and asserted that the accused owed Rs. 7,67,261.46 against purchase of coal on credit between the period 17th November, 2012 to 23rd February, 2013. Three Cheques were issued in lieu thereof and on presentation, were dishonoured due to insufficient fund. In his cross-examination, he stated that the accused failed to pay this amount despite several requests. Cheques were issued after 2 ½ -3 years of purchase of coal. Though there were persons like Mithlesh Kr. Upadhyay and Rajesh Singh at the time he received the Cheques, but there were no return memo given with the Cheques regarding the dues for which it has been given. He denied the suggestion that there was no dues on the accused.
6. Defence examined Ashok Tiwari as D.W.-1. He stated that the accused was in the business of coal with the proprietor Firm of complainant. He knew that the accused had purchased coal from the complainant and as a security, given him total 9 Cheques on 16th November, 2012. All the Cheques were signed. Complainant supplied coal from 17th November, 2012 to 23rd February, 2013. Total coal supplied was worth Rs. 7,67,000/- approximately and in lieu whereof, the accused had issued Cheque worth Rs. 7,20,000/-. Bank statement of 11 pages dated 6th January, 2017 with the signature of Bank 3. Account Officer, the seal of the Bank and signature of Accountant Roop Bouri were filed and exhibited as Ext.-A. He deposed that total 6 Cheques worth Rs. 7,20,000/- were given to complainant's Firm. He further deposed that instead of returning the security Cheques, the complainant had filed this case. In his cross-examination, he deposed that he has no identity card, was not partner of the accused and lives in Dhanbad while the accused lives in Katras. He had no proof that the Cheque had been given as security. He could state the Cheque number by seeing the same. He deposed that Ext.-A is the statement of the Account of the accused. He could not tell the name of Bank Manager as well as present case number.
7. Learned trial court analyzed the evidence on record in the light of the allegations made in the complaint, statement of the complainant and the defence and arrived at an opinion that the defence had successfully rebutted the presumption. It observed that perusal of Ext.-A showed that accused had transferred Rs. 80,000/- through Cheque no. 78790 on 26th December, 2012, Rs. 1 lakh through Cheque no. 78791 on 31st December, 2012, Rs. 1.60 lakh through Cheque no. 78792 on 11th January, 2013, Rs. 1.80 lakh through Cheque no. 2009051 on 14th February, 2013, Rs. 1 lakh through Cheque no. 2009056 on 6 th March, 2013 and Rs. 1 lakh through Cheque no. 2009092 on 25th January, 2014 to the complainant. He had been able to rebut the presumption under Section 139 of N. I. Act. Therefore, the burden shifted upon the complainant to prove the existence of legally enforceable liability against the accused. The complainant failed to establish the same. As such, one of the necessary ingredients to constitute the offence under Section 138 of N.I.Act was not established. Accordingly, the accused was acquitted of the charges.
8. Learned counsel for the petitioner has laboured to question the findings of the learned trial court in order to seek Special Leave to Appeal. He submits that Ext.-A though filed earlier was not allowed to be brought on record. However, the same document was brought on record and exhibited later on by the defence which is an error of law. Learned Trial Court has further committed error of law and on facts in arriving at an opinion that the accused had successfully rebutted the 4. presumption under Section 139 of N.I. Act. There was admission on the part of the defence witness of outstanding dues of Rs. 7,67,261.46/-, while payment through Cheques evidenced through Ext.-A were only to the tune of Rs. 7.20 lakh,. The outstanding dues remained unpaid due to dishonor of three Cheques. As such, the ingredients of the offence were made out. The findings of learned trial court are therefore susceptible to challenge before the appellate court if Special Leave to Appeal is granted.
9. Learned counsel for the accused-opposite party no. 2 has supported the findings rendered by learned trial court in the impugned judgment. He submits that apart from the ingredient of issuance of cheque; return by the bank due to insufficient fund; giving of notice and failure to make payment within time, shown by the complainant, one of the necessary ingredients of the offence under Section 138 of N.I. Act is existence of legally enforceable liability. The onus to rebut this presumption is to be satisfied on the test of preponderance of probability which the accused had ably discharged. However, the complainant failed to establish the existence of legally enforceable debt by evidencing any concrete document to show the liability of Rs. 7,67,261.46/- against him. Therefore, the findings rendered by the learned trial court do not deserve to be questioned in appeal.
10. We have considered the submissions of learned counsel for the parties, perused the impugned judgment and also the material evidence on record relied upon by learned counsel for the parties and as discussed by learned trial court as well. From the facts on record taken note of in the preceding paragraphs, it is evident that the parties were in continuous business transaction relating to supply and purchase of coal between the period 17th November, 2012 to 23rd February, 2013. Defence has taken a plea that the outstanding dues were paid through 6 different Cheques totaling Rs. 7.20 lakhs. Ext.-A was adduced without objection during trial. Ext.-A is the bank statement from which these inferences have been drawn. Accused had been able to rebut the presumption on the test of preponderance of probability. The onus to establish the legally enforceable debt was thereafter upon the complainant. Learned trial court, however, found that the complainant had not been able to establish 5. the essential ingredient of the offence i.e. existence of legally enforceable debt as against the accused. No invoices or documents showing purchase of coal to the tune of Rs. 7,67,261.46/- were brought on record by the complainant. In such circumstances, learned trial court had reason to record the finding that the complainant had not been successful in bringing home the charges against the accused beyond the shadow of all reasonable doubts. One of the basic ingredients of Section 138 of N.I. Act i.e. existence of legally enforceable liability had not been proved.
11. Upon consideration of these material facts, we are of the view that the petitioner has failed to make out grounds to allow Special Leave to Appeal to challenge the impugned judgment before Appellate Court. Accordingly, the instant petition is dismissed.
(Aparesh Kumar Singh, J) (Ratnaker Bhengra, J) Jk/