NIBEDITA PARIDA Vs. CHITARANJAN SAHOO

JUDGEMENT

(1.) In this revision, the Petitioner assails the Judgment dated 10.9.2008 passed by the Learned Ad hoc Additional Sessions Judge, Fast Track Court No. II, Bhubaneswar in Crl. Appeal No. 46/16 of 2007 confirming the Judgment dated to 27.4.2007 passed by the Learned J.M.F.C., Bhubaneswar in I.C.C.Case No. 2705 of 2005 (Trial No. 1532 of 2006). From the record it reveals that the Opp. Party had filed I.C.C.Case No. 2705 of 2005 for commission of offence under Section 138 of the Negotiable Instrument Act (hereinafter referred to as "the Act"). In the said application, he has alleged that the Petitioner had issued an account payee cheque bearing No. 839470 dated 15.6.2005 drawn on Canara Bank, Cuttack Road, Bhubaneswar for an amount of Rs. 5,00,000. The said cheque was presented before the U.Co. Bank, Bapujinagar Branch, Bhubaneswar by Opp. Party on 5.7.2005, which was dishonoured & returned by the Banker of the Petitioner with a remarks "stop payment" on 7.7.2005. Thereafter, the complaint-Opp. Party served demand notice through his Counsel on 3.8.2005 by registered post with A.D. The said notice was received by the Petitioner on 4.8.2005 & she gave her reply on 16.8.2005. Thereafter, Opp. Party had filed the aforesaid I.C.C. Case. The Petitioner after receiving notice in the complaint case filed her defence, wherein she pleaded that she was residing separately from her husband since last ten years & she was no way concerned with her husband's business. She further pleaded that the Opp. Party had requested her for purchasing a land belonging to him. After negotiation between her & the Opp. Party, it was decided that the cost of the land will be Rs. 10,00,000 & in case the Petitioner will pay 50% of the total cost of the land, the Opp. Party will repay the said amount towards loan incurred by him & the transaction will be completed thereafter. Accordingly, the Petitioner had issued the account payee cheque in favour of the Opp. Party. However, the Opp. Party did not execute the agreement as stipulated earlier. Therefore, the Petitioner had intimated the Bank to stop payment on the said cheque & requested the Opp. Party to return the cheque in her favour. Instead of returning the cheque to her, the Opp. Party had issued legal notice & filed the aforesaid complaint case.

(2.) In support of the above pleadings, both the complainant & accused have adduced their oral evidence as well as documentary evidence & they have examined themselves as P.W.1 & D.W.1 along with one more witness each.

(3.) The Trial Court on analyzing the evidence adduced by the parties recorded the findings that though the Petitioner ended her story regarding sale of plot belonging to the Opp. Party, which she intended to purchase, she has not produced any document to prove the said fact, rather she has only given a suggestion to Opp. Party about the non-existence of any liability. Therefore, it cannot be concluded that the Petitioner has satisfactorily rebutted her liabilities. Accordingly, she is liable under the Act. The Branch Manager of the Bank has been examined as P.W.2. From his statement it reveals that the accused had no sufficient money in her account when the cheque was issued. Accordingly, in view of the Decision reported in the case of Goa Plast (P) Ltd. v. Chico Ursula D Souza, 2004 AIR(SC) 408 & in the case of M/s. M.M.T.C. Ltd. & another v. Medchi Chemicals & Pharma (P) Ltd. & anr, 2002 AIR(SC) 182 the accused cannot succeed, as the cheque was returned with the fact that the payment was stopped by the drawer & issuance of cheque constituted the offence under Section 138 of the Act.