Rajasthan High Court - Jodhpur
Aditya Ram Sharma @ A.R.Sharma vs Vijay Kumar on 6 February, 2012
Author: R.S. Chauhan
Bench: R.S. Chauhan
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
Aditya Ram Sharma @ A.R.Sharma
Vs.
Vijay Kumar
S.B. CRIMINAL LEAVE TO APPEAL NO.50/2009
S.B. Criminal Leave to Appeal
No. 50/2009 filed under Section
378(4) Cr.P.C. against the
judgment dated 19.01.2009
passed by Additional Chief
Judicial Magistrate, No.3
Bikaner.
Date of Judgment: 6.2.2012
HON'BLE MR. JUSTICE R.S. CHAUHAN
Mr.M.K.Garg, for the appellant.
Mr.Sikandar Khan, for the respondent.
The complainant is aggrieved by the judgment dated 19.1.2009 passed by the Additional Chief Judicial Magistrate, No.3 Bikaner, whereby the learned Magistrate has acquitted the accused respondent, Vijay Kumar for offences under Section 138 Negotiable Instrument Act read with Section 420 IPC.
Briefly the facts of the case are that according to the complainant, Aditya Ram Sharma as part of his post retiral benefits, he had received about Rs. 2,25,000/-. Since Vijay Kumar was known to 2 him, Vijay Kumar sought a loan for his construction business. He had given him a loan of about Rs. 1,00,000/-. In order to repay the said loan, Vijay Kumar had issued a cheque, cheque No. FC-617637 dated 21.12.1995. On 22.12.1995, when the complainant submitted the cheque for encashment, he was informed that the cheque could not be honoured as Vijay Kumar had closed the account. Therefore, on 9.1.1996, the complainant had a legal notice sent to Vijay Kumar. However, despite having received the said notice Vijay Kumar did not repay the said loan. Therefore, the complainant filed the complaint under Section 138 of the Act read with Section 420 IPC.
In order to buttress his case, the complainant examined himself as witness, and submitted five documents. In turn, the defence examined a single witness, but did not submit any document. After going through the oral and documentary evidence, vide judgment dated 19.1.2009 the learned Magistrate acquitted Vijay Kumar of the aforementioned offences. Hence, this criminal leave to appeal before this Court.
Mr. M.K.Garg, the learned counsel for the appellant, has vehemently contended that the learned 3 Magistrate has failed to appreciate the evidence in proper perspective. One of the grounds taken by the learned Magistrate is that the notice was not sent within the stipulated period of fifteen days. However, according to the appellant, he came to know about the dishonor of the cheque, five days after it was disnonoured by the bank. Thus, he came to know about the dishonor of the cheque on 27.12.1995. Therefore, the notice was well within the stipulated period of fifteen days.
On the other hand, Mr. Sikandar Khan, the learned counsel for the accused respondent, has contended that neither in his notice nor in his deposition before the court, did the complainant claim that "he came to know about the dishonor of the cheque on 27.12.1995." Therefore, the stand taken by the accused appellant is misplaced. Since the cheque was dishonoured on 22.12.1995, since the notice was sent on 9.1.1996, obviously the notice was sent beyond the statutory period of fifteen days. Thus, the learned Magistrate was justified in dismissing the complaint.
Heard learned counsel for the appellant, and perused the impugned judgment.
Section 138 of the Negotiable Instrument 4 Act is as under;
138. Dishonour of cheque for insufficiency, etc., of funds in the accounts - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of 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 provisions of this Act, be punished with imprisonment for 2["a term which may be extended to two 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 induce 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, 3["within thirty days"] of the receipt of information by him from the bank regarding the return of the cheques 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 5 receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability.
One of the legal requirements for bringing the case under the ambit of Section 138 of the Act is that notice has to be sent within fifteen days from the date of the dishonoured of the cheque. Although, the learned counsel for the appellant has contended that the complainant came to know about the dishonor of the cheque on 27.12.1995, however, this contention is without any basis.
A bare perusal of Ex.P-3, the notice dated 9.1.1996, clearly reveals that in the notice the complainant has not taken the stand that in fact he came to know about the dishonour of the cheque on 27.12.1995. Moreover, even in his testimony before the Court, the complainant has not taken a stand. Therefore, the learned Magistrate was certainly justified in concluding that the complainant knew about the dishonor of the cheque on 22.12.95 itself. Hence, the notice dated 9.1.1996 was sent beyond the statutory period of fifteen days. Thus, the learned Magistrate was certainly justified in dismissing the 6 complaint under Section 138 of the Act.
Therefore, this Court does not find any illegality or perversity in the impugned judgment dated 19.1.2009. The criminal leave to appeal is devoid of any merit; it is, hereby, dismissed.
[R.S.CHAUHAN] J arti sr.no.27