OM PRAKASH KAPOOR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This revision is directed against the judgment dated 18-2-1998 passed in Cr. Appeal No. 35/1993, whereby and whereunder the learned appellate Judge set aside the conviction of the revisionist under Section 420, I.P.C., but confirmed the conviction under Section 138 of the Negotiation Instruments Act (hereinafter referred to as the Act) and also confirmed the sentence of one year R. I. passed by the trial Court.

(2.) The impugned judgment has been mainly challenged on the grounds that the notice required under Section 138 of the Act was not served upon the revisionist; consequently, the cause of action did not arise to the complainant and in view of the provisions of Section 142(1) of the Act. the cognizance could not have been taken. Therefore, the prayer made is to set aside the conviction and acquit the revisionist.

(3.) The aforesaid conviction arises out of the short facts that the revisionist used to carry business in the name of M/s. P. K. Enterprises and M/s. Everest Trading Company having its office at P. P. Compound, Ranchi. According to the prosecution story, the complainant brought two consignments from Faridabad to Ranchi which were booked by M/s. S. K. N. Associates (P.) Ltd. in favour of the revisionist vide consignment No. 209346-47. Since the complainant carried these goods to Ranchi and informed the revisionist to take delivery after producing consignee copy of bill. However, the revisionist on 1-7-1987 requested and got delivered these consignments on promise to submit the consignee copy within thirty days. When the consignee copy was not submitted to the complainant and the payment was not made to the original consignor, the complainant demanded Rs. 63882/- from the revisionist through letters. However, the revisionist in spite of repeated request and reminders paid only Rs. 5200/- in cash and further issued four post-dated cheques payable at State Bank of India, Doranda Branch, Ranchi, bearing Nos. 216451 dated 30-7-89, 216452 dated 30-8-89, 216454 dated 30-9-89 and 216455 dated 30-10-89, all of Rs. 15,000/- each. The revisionist further assured the complainant that these cheques would be cleared on dates mentioned over it. However, this promise also was found unfulfilled because these cheques when sent for collection were dishonoured. The complainant again approached the revisionist, who was again reassured that by 30-8-89 these payments would be cleared. In spite of the assurance, the cheques mentioned above bounced and returned dishonoured. This led to serving a notice on the revisionist without any reply. Therefore, the complainant finally had to file the complaint case on 3- 11-89.