JOSE PULLAN ALIAS JOSEPH P Vs. UMA JASRASARIA

JUDGEMENT

(1.) This revision is directed against the judgment and order dated 8-6-2009 passed by the learned Chief Judicial Magistrate, Shillong in C.R. No. 369(S) of 2004 acquitting the Respondent of the charge under Section 138, Negotiable Instruments Act, 1881("NI Act").

(2.) The case of the Petitioner, who filed the complaint petition, is that the Respondent, who is a carrying on business under the name and style of "M/S Kojani's" at Dhanketi, Shillong, along with her two children, who were initially arraigned as the accused No. 2 and 3 but later on dropped by this Court, approached him for loan from time to time to meet their financial requirements and for meeting the treatment expenses of her ailing husband. In acknowledgement of the loan and for the repayment thereof, six different cheques bearing dated 23-2-2004 and one cheque amounting to 10,000/- dated 16.02.2004 were issued by her in his favour. The total loan amount comes to 2,10,000/-. The Respondent, however, requested the Petitioner to encash the cheques later on so that necessary funds could be arranged by her. In the meantime, the husband of the Respondent died sometime in the month of August-September, 2003 and as a result, Respondent requested the Petitioner to wait for sometime for encashing the cheques as she was due to receive the amounts payable to her from LIC for which the accused No. 2 and 3 were the nominees. In the month of December, he made enquiries in the Bank about the availability of fund in the account of the Respondent as he was badly in need of money for the education of his son but found from the Bank that there was insufficient fund. The Petitioner thereafter repeatedly requested the Respondent to return the money and issued the letter dated 15-12-2003 to that effect, but the Respondent asked for time till February, 2004. Finally, he in consultation with the Respondent presented the cheques to the Vijaya Bank, Laitumkhrah Branch, Shillong on 16-2-2004 and 23-2-2004, which were, however, returned vide memos dated 16-2-2004 and 23-2-2004 without being honoured on the ground that they exceeded the arrangement. The Petitioner then issued pleader's notice dated 2-3-2004 to the Respondent for payment of the amount within a stipulated time, but the Respondent refused to do so. It is contended by the Petitioner that from the conduct of the Respondent, she intentionally and knowingly issued the cheques without having any balance in her account with a view to defraud him and has thereby committed the offence punishable under Section 138 NI Act and Section 420 IPC.

(3.) In response to the summons issued by the trial court, the Respondent entered her appearance and contested the case. She pleaded not guilty to the charge and claimed to be tried whereupon the trial court commenced the trial. The case of the Respondent is that of total denial. On the conclusion of the trial, the trial court passed the impugned judgment of acquittal. Mrs. T. Yangi, the learned Counsel for the Petitioner, assails the findings of the trial court by contending, firstly, that though the Petitioner has clearly established the fact that the cheques were signed and issued by the Respondent for the discharge of her debt and liability to her, which were subsequently dishonoured by the Bank and the Respondent refused to pay the amounts despite receipt of her pleader notice, the trial court has erroneously held that the Respondent was not guilty of the offences charged against him. She further submits that the trial court also committed perversity in holding that the Respondent filed the complaint petition on 3-3-2004 immediately after issuing the pleader's notice on 2-3-2004 without waiting for the expiry of the statutory notice period of fifteen days inasmuch it is on record that the complaint petition was filed on 22-3-2004 i.e. seventeen days after the notice period as the notice was received by her on 5-3-2004. According to the learned Counsel, the trial court has completely overlooked the fact that under Section 139 NI Act, there is presumption in favour of the holder of the cheque and the onus lies on the drawer of the cheque to rebut the same by adducing evidence, but the Respondent, in the instant case, does not adduce any evidence and does not, therefore, discharge the onus of proving that the cheques were not issued for discharging her debt to the Petitioner. It is also the contention of the learned Counsel for the Petitioner that the learned Chief Judicial Magistrate has failed to appreciate that no prudent person like the Respondent would issue a cheque unless she had a liability to discharge and has in the process reached a wrong conclusion. She, therefore, strenuously urges this Court to reverse the findings of the trial court and return a verdict of guilty against the Respondent.