NARAHARI BARIK Vs. SAMAPTI PATTANAYAK AND ORS

JUDGEMENT

(1.) The judgment dated 06.12.2013 passed by the learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Balasore in Criminal Appeal No. 82/23 of 2011/2012 confirming the trial Court's judgment convicting and sentencing the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short "the N.I. Act") is sought to be set-aside on the ground of the same being legally not sustainable. The case of the complainant (opposite party No. 1 herein) is that on 10.04.2005, on the request of the petitioner accused, she advanced a friendly loan of Rs. 3,50,000/- to him under a written agreement on 20.09.2005, and towards discharge of the said liability, the petitioner issued a cheque for the aforesaid amount which the opposite party No. 1 presented to her Bank for encashment. The cheque, however, was dishonoured on the ground of "insufficiency of funds" and intimation in that regard was received by the opposite party No. 1 vide the return memo dated 06.10.2005. the opposite party No. 1 thereafter issued a demand notice through her Advocate to the petitioner on 18.10.2005 in terms of Clause (b) of the proviso to Section 138 of the N.I. Act. The same was returned unserved with postal remark dated 27.10.2005 that the addressee (petitioner) was found absent from 21.10.2005 to 26.10.2005. The opposite party No. 1 received back the said undelivered notice on 30.10.2005 and as the petitioner did not make payment, the opposite party No. 1 filed the complaint on 09.11.2005 before the S.D. J.M., Balasore who took cognizance of the offence under Section 138 of the N.I. Act and subsequently the case was made over to the Special Judicial Magistrate, Balasore for trial. As the petitioner pleaded not guilty, trial was held, in course of which both the sides adduced evidence and the learned trial magistrate on appreciation of the evidence found the petitioner guilty under Section 138 of the N.I. Act and sentenced him to undergo S.I. for a period of six moths and pay a sum of Rs. 3,75,000/- as compensation to the opposite party No. 1 complainant. Upon appeal, the verdict of the trial Court having been upheld by the learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Balasore, the petitioner has approached this Court by filing the present revision petition.

(2.) Both the sides have been heard. The concurrent finding of guilt recorded by the Courts below is challenged mainly on the ground that the complaint was premature on account of the same having been filed before expiry of fifteen days of the statutory notice as stipulated in Clause (c) of the proviso to Section 138 of the N.I. Act, and there is also no specific finding by the Courts below that the petitioner intentionally avoided the said notice. The learned counsel for the petitioner has placed reliance on a decision of the Apex Court in the case of Yogendra Pratap Singh vrs. Savitri Pandey, 2015 AIR(SC) 157, to bolster his contention.

(3.) On the other hand, the learned counsel for the opposite party No. 1 complainant while supporting the impugned judgment draws the attention of this Court to paragraph-9 and 10 of the judgment of the appellate Court, to submit that the points raised by the petitioner have already been dealt with by the learned appellate Court and the view in that behalf so taken by the appellate Court being in consonance with the principle settled by the Apex Court in the case of K. Bhaskaran vrs. Sankaran Vaidhyan Balan and another, 2000 1 OrissaLR 1 (SC) and another there Bench decision of the Apex Court in the case of C.C. Alavi Haji vrs. Palapetty Muhammed and another, 2007 2 OrissaLR 384 (SC), needs no interference by this Court.