Dambarudhar Sahoo vs Bighneswara Satapathy

D. Das, J

The petitioner (accused) by filing this revision has assailed the judgment dated 11.03.2016 passed by the learned Addl. Sessions Judge,

Bhubaneswar in Crl. Appeal No. 66-13 of 1992-2009 confirming the judgment of conviction and order of sentence dated 07.12.2009 passed by learned

J.M.F.C, Bhubaneswar in ICC Case No. 3560 of 2005 (Trial Case No.1440 of 2009) initiated by the opposite party (complainant).

The accused in the trial court having been found guilty for commission of offence under section 138 of the N.I. Act and sentenced to undergo

simple imprisonment for a period of three months and to pay compensation of Rs. 1,80,000/- within one month from the said date with the stipulation

that in case of his failure, it would stand to be realised following due process of law; the accused having preferred appeal, the same has not yielded

any fruitful result for him. Hence, this revision.

The case of the complainant is that on 10.04.2005, the accused had taken a sum of Rs. 1.50,000/- from him as friendly loan with promise to repay

the same within five months. It is further stated that on his failure to pay the amount within the time, when demand was made by the complainant, he

went on avoiding the same. However, ultimately on 25.05.2005 the accused issued a cheque for a sum of Rs. 1.50,000/- in favour of the complainant

drawn on Indian Bank, Mangalabag Branch, Cuttack. The said cheque being presented by the complainant through his banker i.e. UCO Bank, CRP

Headquarters Branch, Bhubaneswar on 26.09.2005 intimation came, it was dishonoured on 06.10.2005 for the reason of insufficiency of funds in the

account on which the cheque had been drawn. The complainant then issued notice in terms of clause â€"(b) of the proviso under section 138 of the

N.I. Act. The same being not paid any heed to, the complaint was lodged.

The defence taken by the accused is of denial.

The trial court on analysis of evidence of P.W. 1, the complainant and the documents admitted in evidence from the side of the complainant and

upon their evaluation has found the accused guilty for commission of offence under section 138 of the N.I. Act and accordingly, he having been

convicted for the said offence, has been sentenced and directed to pay compensation as aforesaid.

The appellate court being moved has further gone to analyse the evidence at its level in the backdrop of the rival case of the parties. It has also

addressed the grievance of the accused that he was not given due opportunity to cross-examine the complainant examined as P.W.1 and has been

highly prejudiced which vitiates the trial. The appellate court has discussed that issue with reference to the facts and circumstance and has negated

the same to be an acceptable ground to set at naught the result of the trial. Ultimately finding no justifiable reason to accord any difference with the

finding of the trial court the appellate court has confirmed the judgment and order impugned therein.

None appears on behalf of the petitioner. Mr. J. Behera, learned counsel for the opposite party (complainant) being present has been heard. I have

perused the judgments of the courts below.

The case of the complainant is that on 10.04.2005, he had accommodated the accused with a friendly loan of Rs. 1,50,000/- upon his assurance to

pay the same within five months, which has been so stated by him during his examination as P.W.1. He has further stated that on 25.09.2005, the

accused in order to discharge the liability on account of said friendly loan taken by him from the complainant had issued a cheque of Rs. 1.50,000/- to

him which having been deposited in the Bank, has been dishonoured for insufficient fund in his account. The accused during his examination under

section 313 Cr.P.C. has admitted to have issued the said cheque to the complainant and has taken a stand that the cheque which he had given to the

complainant was for purchase of a plot of land and that has been mis-utilized.

The trial court has found no such material as to be available on record in support of the stand taken by the accused. In view and in view of that;

further taking into account the conduct of the accused in remaining silent after receipt of notice coming to know about said mis-utilization of the

cheque by the complainant has arrived at a conclusion that the cheque in question Ext.1 has been issued by the accused in favour of the complainant

for discharging his liability for which the presumption under section 139 of the N.I. Act also arises which has not been rebutted. The appellate court on

re-evaluation of the evidence has not found any reason to disagree with the same.

The trial court on the basis of the evidence of P.W.1 as regards demand for payment of money covered under the cheque Ext. 1 by sending a letter to

the accused by registered post with AD which has returned with an endorsement of refusal by the accused has come to conclude that there has been

compliance of the provisions contained in clause â€"(b) of the proviso to section 138 of the N.I. Act. In view of all the above, the conviction having

been recorded against the accused for offence under section 138 of the N.I. Act, the appellate court upon further discussion of the evidence on that

score of the compliance of the provisions as above has given the seal of approval to the said conclusion arrived at by the trial court.

In going to address the claim of prejudice raised from the side of the accused, the appellate court has taken note of the fact that after the closure of

the evidence of P.W.1, a petition being filed by the accused, the same had been allowed subject to payment of cost. Taking note of the fact that

though several dates passed when the accused did not come forward to deposit the cost and rather avoided, the answer to the said contention has

been to the effect that the accused had been given sufficient opportunity and has failed to avail the same by complying the conditions imposed for the

purpose with such reason, the claim of prejudiced has been repelled. In view of all the above, the appellate court has refused to interfere with the

impugned judgment of conviction and order of sentence passed by the trial court.

Having carefully gone through the evidence of P.W. 1 coupled with the documents proved from his side as Ext. 1 to 3 and on the face of the

presumption available under section 118 (a) and section 139 of the N.I. Act when it is seen that no such material has surfaced from the evidence on

record to show that the accused has discharged the burden of proof by raising a probable defence leading to raise any doubt in the mind as to the non-

existence of the liability on his part so as to issue the cheque or thereafter till its presentation at the Bank, in any considered view, said findings

returned by the courts below do not suffer from the vice of perversity. In that view of the matter, the judgment of conviction is found to be in order.

Coming to the question of sentence, the accused had been directed to undergo simple imprisonment for a period of three months and to pay

compensation of Rs. 1,80,000/- as against the dishonour of the cheque of Rs. 1.50,000/-. It is stated in paragraph-4 of the revision application that the

accused has paid sum of Rs. 20,000/- on 13.02.2015, Rs.15,000/- on 01.07.2015, Rs. 10,000/-on 23.07.2015, Rs. 10,000/- on 19.01.2019, Rs. 5,000/- on

15.02.2016 and Rs. 8,000/- on 29.02.2016 in total amounting to Rs. 68,000/- to the complainant. It is also seen from the record of the appellate court

that the complainant had agreed for compromise with the payment of the compensation in terms of the order by the accused. Fact remains that the

complainant having received part amount of the compensation during pendency of the appeal, has been able to enjoy the same for all these periods.

Keeping in view all the aforesaid as also the fact that the parties having agreed for compromise the accused has not been able to pay the entire for the

reasons as had been indicated in the applications filed before the appellate court, while going to maintain the judgment of conviction, I am inclined to

set aside the order of imposition of sentence upon the accused to undergo simple imprisonment for three months. Without interfering with the quantum

of compensation with imposition, this Court however feels inclined to introduce the default stipulation that on failure of payment of the amount of

compensation of Rs. 1,80,000/- minus Rs. 68,000/-(paid) which comes to Rs. 1,12,000/-(Rupees one lakh twelve thousand) within a period of three

months hence, the accused would undergo simple imprisonment for a period of six months.

The revision stands accordingly disposed of.

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