PRAHLAD SHARMA Vs. DIPIKA SHARMA

JUDGEMENT

(1.) (i). The Petitioner assails the Judgment dtd. 20/6/2020, in Criminal Appeal Case No.01 of 2019 of the Court of Learned Sessions Judge, South Sikkim, at Namchi which upheld the Judgment of the Learned Chief Judicial Magistrate, South Sikkim, at Namchi in Private Complaint Case No.07 of 2018. The Learned Magistrate had convicted the Petitioner herein under Sec. 138 of the Negotiable Instruments Act, (for short, the "NI Act") 1881 and sentenced him to pay a fine of Rs.4,00,000.00 (Rupees four lakhs) only, within a period of two months from 31/12/2018 with a default clause of imprisonment.

(2.) The Learned Court of Chief Judicial Magistrate in its Judgment dtd. 31/12/2018, in Private Complaint Case No.07 of 2018, which was impugned before the Court of the Learned Sessions Judge, South Sikkim, at Namchi, inter alia observed that in terms of Sec. 4 of the Indian Contract Act, (for short, the "Contract Act") 1872, as to when communication is complete, the Sec. provides that a communication of revocation is complete against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it. Hence, the communication vide Exhibit 5 was not complete when the cheques bounced. That, the defence of the Petitioner herein, that the two cheques were returned unpaid on account of his instructions to the Bank to stop payment is belied by the fact that the Bank's return Memos Exhibits 3 and 4 stated "insufficient fund" and "not payment stopped by the drawer".

(3.) (i). The Learned Magisterial Court also disbelieved the case of the Petitioner that the cheques were handed over by way of security and concluded that the accused had failed to rebut the presumption as enshrined in Sec. 139 of the NI Act and convicted the Petitioner herein vide Order on sentence dtd. 31/12/2018 which inter alia is extracted hereinbelow;