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TMI Blog2023 (9) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, Debu Prasad Banerjee had moved the complaint before the Judicial Magistrate 1st Class, Ranchi with these allegations that he and the accused both were well known to each other as a good friends. The daughter of accused Biglal Oraon was suffering from serious mental disease, therefore, he requested the complainant to arrange the amount of Rs. 10 lacs for her proper treatment in a good hospital of India. On the request of the accused Biglal Oraon in good faith the complainant arranged the amount of Rs. 7.60 lacs from his friends and relatives and gave the same to the accused. Further case of the complainant is that in order to discharge his liabilities of Rs. 7.60 lacs, the accused has issued two cheques to the complainant. The first cheque bearing number 000142 dated 8th July, 2017 for a sum of Rs. 10,000/- and the second cheque bearing number 000172 dated 10th July, 2017 and were drawn on Bank of India, Harmu Branch, Ranchi and same were issued in favour of the complainant. As per request of accused, the complainant deposited the said two cheques of Rs. 7.60 lacs on 27th July, 2017 of Bank of India, Harmu Branch, Ranchi with his Banker State Bank of India, P.B.B. Branch, P.P. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d trial court after hearing the learned counsel for the parties and on the basis of the evidence adduced on behalf of the prosecution and defence as well, passed the judgment of conviction of the accused (the petitioner herein) under Section 138 of the N.I. Act and sentenced with simple imprisonment for a term of one year and was also directed to pay the amount of Rs. 8 lacs by way of compensation to the complainant - Debu Prasad Banerjee. 10. Being aggrieved with the judgment dated 24th June, 2019, the Criminal Appeal No. 157 of 2019 was preferred by the appellant/convict Biglal Oraon before the court of Judicial Commissioner, Ranchi and the same was dismissed vide judgment dated 11th March, 2022 by affirming the judgment of conviction and sentence passed by the learned trial court. 11. Being aggrieved from the impugned judgment passed by the learned trial court and appellate court, this criminal revision has been preferred under Section 401 of the Cr.P.C. on behalf of the appellant/convict Biglal Oraon on the ground that the impugned judgment passed by the learned trial court and the appellate court are bad in the eyes of law and both courts having not appreciated the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Memos dated 28th July, 2017 and the said Cheque Return Memos have been marked as Exts.3 and 4 respectively. This witness further told that he immediately informed the accused about the dishonour of the said two cheques of Rs. 7,60,000/- but the accused had neglected to pay the cheque amount. Thereafter on 6th August, 2017 a demand-cum-legal notice was sent by registered post through his Advocate and the said legal notice and the postal receipts have been marked as Exts. 7, 8 and 9 respectively. He further deposed that accused has received the legal demand notice on 7th August, 2017 but the accused has not paid the cheque amount. In cross-examination on behalf of the accused, this witness says that he was familiar with Biglal Oraon for last 30 years and file income tax return. His monthly income is Rs. 20 to 25 thousand and he did not remember how much income tax he had paid in the assessment year 2017-18. In his affidavit, he has not shown the date on which the amount of Rs. 10 lacs was demanded by the accused. He further stated that he had given only Rs. 10 to 20 thousand from his possession and rest amount he had arranged from his friends and relatives. He further stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date:-that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance:-that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer:-that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements:-that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on; (f) as to stamp:- that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course:-that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;] (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.]. [(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. 145. Evidence on affidavit.-(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be to the holder in due course of the cheque within fifteen days of the receipt of the said notice. The explanation of this Section provides that for the purpose of this section debt or other liability, means legally enforceable debt or other liability. 20. Herein both the cheques in question were presented by the complainant on 27th July, 2017 as such the same were presented within a period as prescribed under proviso (a) of Section 138 of the N.I. Act. 21. These two cheques were dishonoured with endorsement "Funds Insufficient" which is proved from the Exts. 5 and 6. The return memo report of State Bank of India where these two cheques were presented. These return memos are dated 28th July, 2017. On behalf of the complainant, the notice was issued on 4th August, 2017 through his counsel which has been proved as Ext. 7. This notice was issued on 4th August, 2017 and it was sent by registered post on 6th August, 2017 which are Exts. 8 and 9. This notice was received to the accused on 7th August, 2017 which is evident from the track report which is marked Ext. 10. From this legal notice, it is evident that 15 days' time was granted to the accused to comply the notice and make the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for consideration of Rs. 10,000/- and 7,50,000/- respectively. The burden of proof now shifts upon the accused to rebut the presumption under Section 118 of the N.I. Act. 25. On behalf of the accused, in rebuttal of the presumption under Sections 118 and 139 of the N.I. Act, has adduced only one witness D.W.-1 Bhinsar Oraon. This witness has been examined only to show that the accused was not residing at Lohardaga at the address, where the notice was issued. This witness is not in regard to rebut the presumption of the liability under Section 139 of the N.I. Act or in regard to issuance of the cheque under Section 118 of the N.I. Act. So far as the service of notice is concerned, this notice was issued on the very address of Biglal Oraon which is also shown in the present criminal revision and as per the postal track report, it was delivered on the said address. The defence of the accused that he had not been residing at Lohardaga for last 20 years is not found tenable, since the notice was received on the address which has been mentioned in this criminal revision. 26. On behalf of the accused, this defence that the cheque was given to Sanjay Oraon as a security which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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