SANCHA BAHADUR SUBBA Vs. RAMESH SHARMA

JUDGEMENT

(1.) This common Judgment disposes of three Criminal Appeals i.e. Criminal Appeal No.33 of 2018 (arising out of Private Complaint Case No.14 of 2015), Criminal Appeal No.34 of 2018 (arising out of Private Complaint Case No.31 of 2015) and Criminal Appeal No.35 of 2018 (arising out of Private Complaint Case No.30 of 2015).

(2.) The Appeals assail the acquittal of the Respondent (the accused person before the learned trial Court) by the Court of the learned Chief Judicial Magistrate, East Sikkim at Gangtok, for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act'), vide Judgments dated 11.05.2018, in the afore detailed Private Complaint Cases. The grounds for acquittal were that the Appellant had failed to prove the ingredients of 'giving Notice' as required under Section 138 of the N.I. Act. The Appellant failed to establish beyond a reasonable doubt that a debt or any other liability existed in his favour. That the presumption under Section 139 of the N.I. Act was successfully rebutted by the Respondent. Hence, the Appeals.

(3.) The facts common in all the Complaints, leading to the Appeals may briefly be adverted to. The Appellant required finances for his son's incomplete hotel project at Gangtok, Sikkim. The Respondent in the month of March, 2013 offered to assist him to obtain loan of Rupees five crores for the said purpose from Syndicate Finance Private Limited, Mumbai. The condition for obtaining such loan was an advance payment of 2% of the capital applied for, as processing fees. The Appellant agreed to the said proposal and thereafter made over a sum of Rs.12,70,000/- (Rupees twelve lakhs and seventy thousand) only, to the Respondent in March, 2013 in two tranches of Rs.10,00,000/- (Rupees ten lakhs) only, and Rs.2,70,000/- (Rupees two lakhs and seventy thousand) only, for the aforementioned purpose. Later, on doubts emerging about the credentials of the Finance Company, the Appellant instructed the Respondent not to deposit the said amounts with the Company. The Respondent however informed him that the deposit was already made, nevertheless, the amount would be refunded by the month of July, 2013. In August, 2013 in order to obtain loan for the same purpose from ICCI, Kolkata a sum of Rs.30,00,000/- (Rupees thirty lakhs) only, was again handed over by the Appellant to the Respondent as Promoters Capital contribution. The total amount thus advanced to the Respondent by the Appellant was a sum of Rs.42,70,000/- (Rupees forty two lakhs and seventy thousand) only. When no loans were forthcoming, the Appellant demanded a refund from the Respondent in April, 2014, who promised to repay the entire amount by 31.05.2014, in vain. Following these events, on 07.11.2014 the Respondent executed a written Agreement (Exhibit 1), acknowledging therein receipt of Rs.42,70,000/- (Rupees forty two lakhs and seventy thousand) only, from the Appellant in different tranches. He undertook to repay the entire amount towards which he issued three post dated Cheques bearing different dates. The Cheques came to be dishonoured on various grounds when presented to the Bank for payment by the Appellant on 31.12.2014, 07.04.2015 and 17.02.2015 respectively but the Respondent neglected to repay the amount to the Appellant. The Appellant in the meanwhile lodged a Complaint against the Respondent at the Sadar Police Station, Gangtok on 05.01.2015 (Exhibit 8) for cheating and criminal breach of trust. Pursuant thereto the Appellant issued Legal Notices to the Respondent under Section 138 of the N.I. Act as follows;