According to the learned advocate for the complainant,
even assuring that the cheque intimation memo was received by the
complainant on 23/05/2005, it was “ Buddha Pournima Day ” ,
therefore, it was impossible for the complainant to receive intimation
memo on 23/05/2005. This submission at this time of argument in
this Court need to be considered. Therefore, in my opinion parties
must be relegated to the Trial Court in order to give them opportunity
to lead further evidence if any so as to bring documentary evidence
on record in support of their contentions because complainant had
stated that he had received intimation on 23/05/2005 by means of
documentary evidence while the defence has to prove that on
23/05/2005 being Bouddha Pournima, bank had a holiday and that
receipt of intimation was not possible on that day. In view of the
submissions made in the interest of justice, the matter ought to be
remanded back to the learned Judicial Magistrate, First Class,
Rajura, with direction that, the parties be given opportunity to lead
further evidence regarding the exact date of receipt of the intimation
memo and dishonoured cheque in question so as to decide whether
the complainant had in fact issued notice to the accused demanding
the cheque amount within a period of 30 days from the date of receipt
of intimation in respect of dishonoured cheque. Therefore, the
appeal is partly allowed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Criminal Appeal No. 511/08
Appellant :: Shri. Mallesh Chandraia Yengulwar
Respondents :: 1] Shri. B. N. Chide,
Coram : A.P. Bhangale, J
Dated : 5th May 2011
1. By this appeal, the appellant (original complainant)
challenged order in Complaint Case No. SCC 4002/2005, which was
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decided by learned JMFC, Rajura, acquitting the accused Bhaurao
Nanaji Chide of offence punishable under Section 138 of Negotiable
Instruments Act. The appellant have challenged validity and legality
of the impugned judgment and order on the ground that, the findings
recorded by learned JMFC were contrary to the evidence on record.
The learned JMFC failed to notice that, the fact regarding knowledge
of the complainant regarding dishonour of the cheque in question
was specifically mentioned in the demand notice and the same was
never disputed by the accused. It is contended that, the complainant
had duly proved legally enforceable liability. According to the
complainant, the cheque bearing No. 0086015, dated 26/11/2004, in
the sum of Rs. 34,000/- drawn upon the Bank of India, Rajura, was
presented to UCO Bank, Ballarpur on 19/04/2005. The Bank by
intimation memo dated 18/05/2005 informed the fact of dishonour of
cheque on account of insufficient funds in the account of accused.
Thus, the cheque in question was returned to the complainant along
with intimation of dishonour on 23/05/2005. Since the cheque was
returned due to dishonour thereof, the complainant issued notice of
demand dated 21/06/2005 to the accused demanding payment of the
amount of cheque within 15 days. The notice was received by the
accused on 22/06/2005, but despite sufficient time granted for the
accused to make payment, the accused failed to pay, and therefore,
the complainant had no other option but to lodge complaint under
Section 138 of the Negotiable Instruments Act.
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2. At trial, the learned Trial Magistrate, Rajura, had accepted
evidence of the complainant on affidavit dated 28/07/2006, on the
basis of which and after further examination-in-chief on 25/08/2006,
the accused was required to cross-examine the complainant on
07/12/2007. The accused had also entered in the witness box in
support of his defence and was cross-examined. Thus, after the
evidence was recorded, learned Trial Magistrate by the impugned
judgment and order dated 08/04/2008, acquitted the accused of the
offence punishable under Section 138 of the Negotiable Instruments
Act.
3. The learned advocate for the complainant submitted that,
the complainant had succeeded to establish the fact, that accused
had issued a cheque bearing no. 0086015, dated 26/11/2004, in the
sum of Rs. 34,000/- which was drawn from the Bank of India, Rajura
Branch in favour of the complainant towards discharge of Legally
enforceable debt of liability. It is submitted that, the complainant also
established the fact that, a cheque was presented to his banker i.e.
UCO Bank, Ballarpur, for encashment within prescribed validity
period and the fact that cheque was returned dishonoured for reason
“ funds insufficient ” in the account of accused. However, learned
Trial Magistrate held that, the complainant did not prove the fact that,
complainant had issued a notice to the accused demanding the
cheque amount within prescribed period from the date of receipt of
the intimation memo regarding dishonour of cheque and thereby held
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that offence punishable under Section 138 of the Negotiable
Instruments Act was not made out against the respondent-accused.
4. It is grievance of the appellant (complainant) that, in the
evidence before the Court the complainant had specifically stated in
his affidavit that the dishonoured cheque was returned to the
complainant on 23/05/2005 with remark “ insufficient funds ” in the
account of accused and UCO Bank, Ballarpur, had returned the
intimation memo from the Bank of India along with dishonoured
cheque, and this specific evidence in the affidavit of the complainant
was not challenged by the accused despite the fact that the cheque
(Exh.24), cheque return memo of UCO Bank (Exh.25), return memo
of Bank of India (Exh. 26) were produced before the learned Trial
Magistrate along with copy of notice (Exh. 27), postal receipt (Exh.
28) and postal acknowledgment (Exh.29) bearing signature of the
accused. It is submitted that in the cross-examination on behalf of
the accused, there was no challenge to the evidence of the
complainant that he had received the intimation memo in respect of
the dishonour of the cheque on 23/05/2005 as stated in the affidavit.
The accused had also entered in the witness box to depose in the
case but did not challenge the specific statement made in the
evidence of the complainant that he had received intimation memo
regarding dishonour of the cheque on 23/05/2005.
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5. According to the learned advocate for the respondentaccused is supporting the impugned judgment and order. It is argued
that the defence of the accused was of total denial, and therefore, the
complainant ought to have established the fact of dishonour as also
receiving the intimation memo in respect of the dishonour of the
cheque on 23/05/005 as stated by the complainant by independent
evidence of the banker. It is therefore submitted that, the learned
Trial Magistrate was right to record an order of acquittal because of
non production of the evidence of the banker or documentary
evidence to indicate that the complainant had received the intimation
as to why cheque was dishonoured on 23/05/2005 as stated and the
learned Trial Magistrate held that there was no explanation from the
complainant as to why bank will keep letter dated 18/05/2005 (Exh.
25) with the bank itself for a period of 5 days and as to why the
complainant did not adduce evidence of bank officials from the UCO
Bank to the effect that cheque along with intimation memo was
returned to the complainant on 23/05/2005. Hence it is submitted
that, the conclusion recorded by the learned Trial Magistrate is
correct. The learned advocate for the respondent-accused relied on
the judgment reported in 2009(4) Civil LJ 1 Sivakumar V/s. Natarajan
in Cr. Appeal No. 1077 of 2009, decided on 15th May, 2009. It is
submitted that, clause (b) of the Proviso to Section 138 of the
Negotiable Instruments Act requires issuance of notice within thirty
days of receipt of information of return of unpaid cheque by the Bank.
In that case notice was issued on 31st day and not within 30 days. It
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was held that, conviction of the accused was not sustainable for
offence punishable under Section 138 of the Negotiable Instruments
Act. It appears in that case, the UCO Bank, Branch Trichi, had given
intimation dated 27/11/2003 which was received by the complainant
on 03/12/2003 in respect of which notice was issued for demanding
the amount of Rs.1,00,000/-. It was held that, Section 138 of the
Negotiable Instruments Act warrants a strict construction.
Undisputedly, in that case the notice was issued on the 31st day from
the date of receipt of intimation from the bank hence the Apex Court
had set aside the judgment in exercise of jurisdiction under Article
142 of the Constitution of India directing that since the civil liability of
the appellant in that case stood admitted the sum received by the
respondent need not be refunded.
6. Learned counsel for the appellant relied on the judgment
reported in Ajay Gupta V/s. State of Maharashtra and another
2004(2) Dishonour of Cheque Reporter Page 492 (Criminal W.P. No.
384/2004) decided by Bombay High Court on 10/06/2004. In this
ruling, this Court had pointed out that the limitation of the 30 days
would start from the date when the complainant is given intimation by
his bank and not from the date on cheque return memo. Thus,
according to the learned advocate for the complainant, although the
return memo was dated 18/05/2005; it was received by the
complainant on 23/05/2005. It is specifically stated in evidence by
way of affidavit by the complainant which remained unchallenged by
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the accused. That being so, the learned Trial Magistrate ought to
have held the point no. 4 for determination is proved in this case.
After hearing the submission as also after perusal of the record and
proceedings of the case and the rulings cited, it does appear from the
evidence on affidavit by the complainant Mallesh Chandraia
Yengulwar that he had specifically stated to the effect that, the
cheque in question was presented to the UCO Bank on 19/04/2005,
which was returned to the complainant with intimation memo dated
18/05/2005; on 23/05/2005. The complainant was cross-examined
on behalf of the accused after production of documents and further in
the examination-in-chief dated 28/06/2006. It appears that the case
was adjourned for cross-examination from 12/07/2007. There was
no specific challenge from the defence regarding the specific
evidence of the complainant that he had received the intimation
memo regarding dishonour of cheque on 23/05/2005. The accused
had also entered into defence evidence by examining himself but he
did not challenge this fact stated in the evidence of the complaint.
7. According to the learned advocate for the complainant,
even assuring that the cheque intimation memo was received by the
complainant on 23/05/2005, it was “ Buddha Pournima Day ” ,
therefore, it was impossible for the complainant to receive intimation
memo on 23/05/2005. This submission at this time of argument in
this Court need to be considered. Therefore, in my opinion parties
must be relegated to the Trial Court in order to give them opportunity
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to lead further evidence if any so as to bring documentary evidence
on record in support of their contentions because complainant had
stated that he had received intimation on 23/05/2005 by means of
documentary evidence while the defence has to prove that on
23/05/2005 being Bouddha Pournima, bank had a holiday and that
receipt of intimation was not possible on that day. In view of the
submissions made in the interest of justice, the matter ought to be
remanded back to the learned Judicial Magistrate, First Class,
Rajura, with direction that, the parties be given opportunity to lead
further evidence regarding the exact date of receipt of the intimation
memo and dishonoured cheque in question so as to decide whether
the complainant had in fact issued notice to the accused demanding
the cheque amount within a period of 30 days from the date of receipt
of intimation in respect of dishonoured cheque. Therefore, the
appeal is partly allowed. The matter is remanded back to the learned
Trial Magistrate with direction to give opportunity to the parties to
lead further evidence if any, adduced by them in respect of point for
determination no. 4
“ is it proved by complainant that he issued
notice to the accused making demand of
cheque amount within prescribed period from
the date of receipt of intimation of dishonour
of cheque? ”
For reasons stated; the impugned judgment and order is set aside to
the extent as indicated above with direction to learned Trial
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Magistrate, First Class, Rajura to record further evidence of the
parties on the point no. 4 and then to proceed further to decide the
case in accordance with law. The impugned order of acquittal is set
aside. The parties shall appear before the learned Judicial
Magistrate, First Class, Rajura on 13/06/2011.
Appeal is disposed of accordingly.
A.P. Bhangale, J
SGP
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