PANKAJ BIHARI SAHA Vs. RAMKRISHNA DEB

JUDGEMENT

(1.) This is an appeal under Section 378(4) of the Cr.P.C. against the judgment dated 25.01.2018 delivered in case No.CR(NI) 48 of 2016 acquitting the accused from the accusation of dishonour of cheque punishable under Section 138 of the Negotiable Instruments Act, 1981, the NI Act in short, by the Judicial Magistrate, First Class, Gomati Judicial District, Udaipur.

(2.) The appellant lodged the complaint under Section 138 of the NI Act when the cheque bearing No.868625 on the account No.21210210000526, maintained in the UCO Bank Udaipur Branch, for an amount of Rs.10,72,583/- Rupees Ten lakhs Seventy Two thousand Five hundred Eighty Three was dishonoured for insufficiency of fund and the amount was not paid by the respondent No.1 the accused even after the notice dated 17.05.2016 demanding payment of the cheque amount was received by the accused on 25.05.2016. The trial Judge has observed that the appellant has failed to prove the account of liability or the credit due to the accused. According to the complainant, total amount fell outstanding was Rs.10,72,583/- which stood contradictory to the pleaded and deposed credit of Rs.15,00,000/- Rs.20,00,00-5,00,000/- . On the contrary, the accused by filing a copy of another bearing No.868624 dated 10.05.2016 Exbt.E has claimed to have paid a sum of Rs.5,54,978/-. In the ledger maintained by the complainant the said amount is not posted. That apart, prior to filing of the complaint being case No.CR(NI) 48 of 2016, another complaint being CR(NI) 47 of 2016 was filed by the complainant where it had been stated at Para-4 that the amount of credit on and from April, 2013 to March, 2016 was about Rs.20,00,000/-. The accused person paid about Rs.5,00,000/- by cash but the rest of the amount had not been paid. In Para-6 of the previous complaint it had been further stated that by the cheque No.868624, the accused had sought to pay a sum of Rs.5,54,978/- on his account but finally the said complaint was withdrawn and the present complaint under reference was perused. But in the present complaint, according to the judgment of acquittal, the complainant has failed to give any explanation how the outstanding of Rs.15,00,000/- came down Rs.10,72,583/-. It has been also asserted that the complainant did not accede that the blank cheque was given by the accused to him with instruction to deposit the said cheque for encashment when the accused would so instruct. Thus, it has been observed as follows:

(3.) Mr. P.K. Biswas, learned senior counsel and Mr. P. Majumder, learned counsel appearing for the appellant has submitted that the said finding is perverse and outcome of misreading of the evidence as led by the appellant. The complainant PW-1 has proved that the accused, the proprietor of Ompi Foreign Liquor Shop under license had the business relation with the complainant. The accused used to lift the foreign liquors from Udaipur Bonded Ware House, owned by the complainant. According to the complainant there was outstanding balance of Rs.20,00,000/- on the account for the period from April, 2013 to March, 2016. Out of that, an amount of Rs.5,00,000/- was paid in cash by reducing the outstanding to Rs.15,00,000/-. It has been stated in the trial by the complainant that on 03.05.2016 the accused issued the said cheque No.868625 Exbt.1 in favour of the complainant, but when the said cheque sought to be encashed through the Union Bank of India, the cheque got dishonoured with reason as communicated by the UCO Bank due to 'insufficient fund'. The communication was received on 04.05.2016 and on 17.05.2016, the demand notice was sent to the accused person demanding immediate payment of the cheque amount. Even though the said notice was received on 25.05.2016, but the accused person did not pay any amount. PW-2, Biswajit Choudhury has testified as shown by Mr. Biswas, learned senior counsel that the transaction used to happen both by cash and cheque. Even though PW-2 was the Manager of Udaipur Bonded Ware House but he has not stated anything about the account. PW-2 has only stated that the said cheque was dishonoured due to the insufficient fund. PW-1 wrongly typed as PW-2 at the time of his re-examination however admitted the related documents, such as the original cheque dated 03.05.2016 and the returned memo as signed by the bank Exbt.3 . The acknowledgment cards Exbt.6 showing the date of receipt of the demand notice on 25.05.2016 has been admitted in the evidence. He has also introduced the copies of the supply order Exbts.8A to 8D and challans Exbts.9A to 9F . Even the ledger account of the accused for the period from 01.04.2014 to 31.03.2015 was submitted by PW-2 Exbt.12 . It may be mentioned that according to the complainant, outstanding fell due during period from April, 2013 to March, 2016 but the ledger account Exbt.12 was for the period from 01.04.2014 to 31.03.2014. PW-2 has denied that at any point of time he has received any blank cheque from the accused. PW-4, Sajal Rakshit, the cashier of the said Bonded House has testified in the trial that the transaction continued between the Bonded Ware House and the accused for the period from 2013 till 04.07.2016 and the complainant had the balance of Rs.10,72,583/-. But in the cross-examination, he has stated that on 05.04.2015 the accused paid Rs.5,00,000/- in cash to him. Mr. Biswas, learned senior counsel has contended that from a reading of the ledger it will be evident that on 31.03.2015 the closing balance was Rs.Rs.11,22,583/-. Thus, the observation of the trial Judge is absolutely perverse. But no explanation how the said outstanding was registered, keeping in mind the complainant has categorically stated that the outstanding was Rs.15,00,000/-. Mr. Biswas, learned senior counsel has submitted that from the documentary evidence the return memo it has been proved that the cheque was dishonoured for insufficient fund and despite the demand notice was received on 25.05.2016, the cheque amount was not paid within 15 days as required by the NI Act. On 18.06.2016 the complaint was filed. When the liability has been clearly proved by the complainant, there had been no other alternative but to convict the accused under Section 138 of the NI Act.