TMI Blog2022 (6) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... The penultimate that remains to be decided is whether the accused petitioner committed an offence under Section 138 of the NI Act? - HELD THAT:- Section 138 of the NI Act is an exclusive provision dealing with dishonor of cheques and it comprehensively provides all the essential ingredients which requires to be satisfied before a complaint under this Section can be lodged. Exihibit-1, which is the loan cum hypothecation agreement entered between Shriram Transport Finance Company Limited and the accused petitioner Sri Manik Lal Das reveals that on 21.11.2012, the accused petitioner Sri Manik Lal Das entered into a loan cum hypothecation agreement bearing No- AGRTL0211200012, with the Shriram Transport Finance Company Limited, for purchasing one JCB 3DX (Machinery) vide registration No- TR01R0524. The creation of this agreement has not been denied by the accused-petitioner - Exhibit-2 which is the original cheque bearing No- 686379 shows that a cheque of Rs. 22,12,141/- was issued by Sri Manik Lal Das in favour of Shriram Transport Finance Company Limited and his signature is inscribed in the cheque. It also reveals that the cheque was issued against the account of the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legally enforceable debt. Admittedly, learned senior counsel appearing for the petitioner has not denied with regard to the payment received and the cheque issued and he has not even advanced any evidence with regard to the issuance of post dated cheques. Further, he has not placed any evidence before this Court with regard to the non-compliance of the notice issued by the complainant show that the recipient is a stranger - The argument advanced on the point of arbitration is not applicable in the facts and circumstances of this case since, it governs under the special statute of Central Act under Section-138. Since the point regarding legal enforceable debt has not been demolished by the counsel appearing for the petitioner, this Court has no hesitation to confirm the orders passed by the learned Courts below. The Ld. Trial court has rightly held the accused Manik Lal Das guilty and convicted him for the offence under Section-138 of the Negotiable Instruments Act, 1881. This Court also finds no infirmity in the decision of Ld. Trial court in so far as it has sentenced the petitioner to pay a fine of Rs. 22,12,141/-, and in default to suffer simple imprisonment for one year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bank with the remark Account Closed . Thereafter, on 14.03.2016, demand notice was served on the accused who received the notice on 17.03.2016 but the accused did not repay the loan of the company. Hence this case under Section 138 of the Negotiable Instruments Act, 1881 was instituted by the complainant on behalf of the company. 4. The accused turned up and contested the case and on being examined under Section 251 of the Cr.P.C. in terms of offence under Section 138 of the Negotiable Instruments Act, 1881, pleaded not guilty and claimed to be tried. In the trial the complainant examined himself as PW. 1 and proved the relevant documents viz. 1) Exhibit. 1 - Original loan-cum-hypothecation agreement. 2) Exhibit. 2 - Original cheque bearing no 686379. 3) Exhibit. 3 - Original bank endorsement issued by the United Bank of India, Udaipur Branch. 4) Exhibit. 4 - one loan account statement. 5) Exhibit. 5 - Postal AD Card dated 17.03.2016 6) Exhibit. 6 - Postal registration slip. 7) Exhibit. 7 - Original Power of attorney dated 08.12.2016. 5. In his examination under Section-313 of the Cr.P.C. the accused petitioner admitted that he had entered into a loan cum hypothecation ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court failed to appreciate the law that non-receipt of statutory demand notice from the end of the complainant has resulted non-maintainability of the complaint in the eye of law. This proven fact of non-receipt of demand notice has caused failure of justice which is sine-qua-non for maintaining a compliant under Section-138 of the Negotiable Instrument Act. 11. The Court below has failed to appreciate that admittedly the blank cheques were made to submit by the convict-petitioner in the course of their processing loan. Therefore, it cannot be ruled out that the signed blank cheque has been converted into the valuable security and presented for encashment. There are no lawful dues of the convict-petitioner to the company as there is no adjudication whether the machinery was in fact supplied and accepted by the convict-petitioner. 12. In support of his case, Mr. Majumder, learned senior counsel appearing for the petitioner has placed his reliance upon a decision of the Apex Court in Satish and Co. v. S.R. Traders, reported in 1997 6 ALD 195, wherein the Apex Court has held thus: The learned counsel for the appellant contended that the entire approach of the Court below is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the company cannot personally come to the Court for lodging a complaint for violation of the provisions of Section-138 of the NI Act unless it is represented by some human agency. It is also true that the complainant have failed to adduce any documentary evidence to establish that he was authorised by the Finance Company to lodge the complaint it its behalf, but that does not mean that the complainant is an absolute stranger and does not have any authority either express or implied to lodge the complaint. This is because, that Negotiable Instrument Act does not mandate the existence of an express written authorisation for lodging a complaint on behalf of a company or any other legal entity. 16. In fact, no procedure is provided under the NI Act as to in what manner the company is to be represented in preferring a complaint before the Court for violation of the provisions under Section-138 of the NI Act. The Act does not prevent any person not having a written authorisation from a company from lodging the complaint on behalf of a legal entity, as no requirement of written authorization has been provided in the NI Act. So, any person connected with the affairs of the company i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has further stated that the complainant is not authorized to file any complaint against him and also that he does not owe any money to the complainant and also that the complainant filed the case by misappropriating the post dated blank cheques issued by him in favour of the complainant. 20. In cross-examination, the DW. 1 stated that he would pay the loan amount in installments and the number of installments would be decided by the company. He has further stated that he had another case with the Sriram Transport Company in connection with purchase of another second hand vehicle. He volunteered that before the payment of money to Hindustan Consultancy by Sriram Transport Finance Company Limited, he was taken to Manu and was shown the vehicles. At that time the vehicles were in working condition. But after payment of the money to the Hindustan Consultancy by the Sriram Company, the Hindustan Consultancy disassembled the engine and other parts of the vehicles and delivered the vehicles to him at Belonia. At that time the vehicles were not in working condition and there were no engine and other important parts. He informed the police about the defective vehicles delivered to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clear that the Clause 15.1 of the agreement which bars the jurisdiction of a criminal court to adjudicate a dispute arising out of the agreement is violative of the Section-28 of the Indian Contract Act and hence it is void. This being so, it is now the settled position of law that an arbitration clause in the agreement cannot result in the ouster of the jurisdiction of a criminal court to adjudicate upon a dispute. 26. As regards the question whether the accused committed the offence under Section 138 of the N.I. Act, Section-138 provides that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge of any debt or other liability, is returned by the bank unpaid, either because of the amount of money being insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to every negotiable instrument that it was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated, or transferred for consideration. Section 139 of the N.I. Act, 1881 raises a statutory presumption that the holder of the cheque, unless the contrary is proved, received the cheque for the discharge of any debt or liability. 31. In the case of Bir Singh Vrs. Mukesh Kumar reported in (2018) 2 TLR (SC) 8 it has been held by the Hon'ble Apex Court that the presumption contemplated under Section 139 of the Act is a rebuttable presumption. Onus of proving that the cheque was not in discharge of any debt or other liability is on the accused/drawer of the cheque. Fact that the cheque might be post dated does not absolve the drawer of cheque of the penal consequences under Section 148 of the Act. Persons who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of liability. Cheque if duly signed by the drawer, immaterial that the cheque was filled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whichever is earlier; (b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 34. Exihibit-1, which is the loan cum hypothecation agreement entered between Shriram Transport Finance Company Limited and the accused petitioner Sri Manik Lal Das reveals that on 21.11.2012, the accused petitioner Sri Manik Lal Das entered into a loan cum hypothecation agreement bearing No- AGRTL0211200012, with the Shriram Transport Finance Company Limited, for purchasing one JCB 3DX (Machinery) vide registration No- TR01R0524. The creation of this agreement has not been denied by the accused-petitioner. 35. Exhibit-2 which is the original cheque bearing No- 686379 shows that a cheque of Rs. 22,12,141/- was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... card has been produced by the complainant which has been proved into evidence and the same is marked as Exhibit-5 and the postal registration slip produced by the complainant is marked as marked as Exhibit-6. The Acknowledgment card bears the signature of the wife of the accused petitioner. This shows that the legal notice was received by the wife of the accused petitioner on his behalf and therefore, the accused petitioner is deemed to have received the legal notice sent by the complainant. The accused petitioner has claimed that he did not receive the legal notice issued by the complainant and so the onus of proof lies on him to establish his contention. But accused petitioner completely failed to adduce any evidence in support of his contention that he did not receive the legal notice. Therefore, the plea taken by the accused petitioner that he did not receive the legal notice sent to him is not believable. 40. From the above discussions, it is established cheque No-686379 dated 20/02/2016, for an amount of Rs. 22,12,141/-, was issued by the accused in the account maintained by him with United Bank of India, Kaman Chowmuhani Branch and that the said cheque was dishonored as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hesitation to confirm the orders passed by the learned Courts below. 43. The litigation under Section-138 of the NI Act though, it is statutorily technical in nature, the argument advanced on the point of cheque numbers being 686379, but in the legal notice the cheque number being noted as 6863793, it is purely technical in nature, it cannot be considered too technical for the purpose of denying the justice. In order meet the ends of justice; this Court feels that this argument i.e. the cheque numbers were not tallied, carries no weightage. 44. In view of the above discussion, I find that the Ld. Trial court has rightly held the accused Manik Lal Das guilty and convicted him for the offence under Section-138 of the Negotiable Instruments Act, 1881. This Court also finds no infirmity in the decision of Ld. Trial court in so far as it has sentenced the petitioner to pay a fine of Rs. 22,12,141/-, (Rupees twenty two lakh twelve thousand and one hundred and forty one only) and in default to suffer simple imprisonment for one year and that the fine money, if realized shall be paid in full to the complainant as compensation. 45. As the petitioner herein has failed to make out h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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