Kalinga Auto Centre Pvt. Ltd vs Pramod Kumar Singh

A.C. Behera, J

This is an Appeal under Section 378 (4) of the Cr.P.C., 1973, which has been preferred by the Appellant (who was the complainant in 1.C.C. No.50 of 1991 in the Court of learned Judicial Magistrate First Class Cuttack) against the judgment of acquittal of the Respondent (who was the accused in 1.C.C. No.50 of 1991) from the offence U/s 138 of N.I. Act, 1881 passed on dated 25.03.1995 in 1.C.C. No.50 of 1991 by the learned Judicial Magistrate First Class, Cuttack.

The case of the complainant (Appellant) before the learned Trial Court against the accused (Respondent) was that, the accused had issued three cheques bearing Nos.005113, 005114 and 005115 dated 23.08.1990, 23.09.1990 and 23.10.1990 respectively for Rs.7,140.8/-each in total for Rs.20,500/- to the complainant in order to discharge his liabilities before the complainant. The complainant presented the above first cheque bearing No.005113 in his bank i.e. Urban Co-operative Bank on 25.08.1990 for its collection, but the said cheque was dishonoured due to insufficient of funds in the account of the accused. For which, the officers of the complainant met the accused at Niali and intimated him about the dishonour of his first cheque, but, the accused assured the officers of the complainant to present other two cheques, which shall not be dishonoured. Accordingly, the complainant presented the second and third cheque bearing No.005114 and 005115 on 05.12.1990 for collection, but the said two cheques were also dishonoured due to insufficient of funds in the account of the accused. Then, the officers of the complainant met the accused and disclosed before him about the dishonour of the cheques, but the accused begged apology before them and assured them to take steps within five to ten days for depositing the required amount in order to honour his cheques. Thereafter, the complainant presented the above three cheques on dated 12.01.1991 before its bank for collection, but the said three cheques were also dishonoured due to insufficient of funds in the account of the accused. Then, the complainant issued a demand notice on 09.02.1991 to the accused requesting him to pay the amounts of above three cheques within fifteen days. The said demand notice could not be served on the accused due to the absence of the accused from his house. Thereafter, on 28.02.1991, the 2nd demand notice was sent to the accused on 12.03.1991 and the said 2nd demand notice was received by him (accused) on 16.03.1991. But, still then, the accused did not pay the amounts of the cheques, for which, the complainant filed the case vide 1.C.C. No.50 of 1991 against the accused praying for penalising him (accused) for the offence under Section 138 of the N.I. Act, 1881.

After taking cognizance of the offence under Section 138 of the N.I. Act in 1.C.C. No.50 of 1991 by the Court, the notice was issued to the accused.

The accused contested the case before the Trial Court by taking the plea of complete denial about the issuance of the cheques in question by him to the complainant for discharging his any debt or liability.

In order to substantiate the aforesaid allegations against the accused, the complainant examined altogether four number of witnesses before the Trial Court and relied upon several documents vide Exts.1 to 25. But, on the contrary, without examining any witness from the side of the defence, the accused relied upon four documents vide document Exts.A to D in order to nullify the case of the complainant.

After conclusion of hearing and on perusal of the material, documents and evidence available in the record, the learned Trial Court found the accused not guilty and acquitted the accused from the offence under Section 138 of the N.I. Act vide judgment dated 25.03.1995 in 1.C.C. Case No.50 of 1991 assigning the reasons that, no cause of action was available to the complainant through the 2nd demand notice to file the case vide 1.C.C. No.50 of 1991 against the accused under Section 138 of the N.I. Act, 1881.

On being aggrieved with the aforesaid judgment of acquittal passed on dated 25.03.1995 in 1.C.C. No.50 of 1991, the complainant preferred this Appeal being the Appellant against the accused by arraying him (accused) as Respondent after taking several grounds in its Appeal memo.

Learned Trial Court has specifically assigned the reasons for acquittal of the accused in paragraph-8 of the judgment that, “when it appears from the evidence adduced on behalf of the complainant that, the first demand notice issued by the complainant was received by the accused and when the complainant has not filed any complaint petition after accrual of the cause of action through 1st demand notice and when, the complaint petition has been filed by the complainant after passing of the period of limitation accrued through the 1st demand notice, but on the basis of cause of action accrued through the 2nd demand notice, then, the complaint petition of the complainant against the accused for the offence U/s 138 of the N.I. Act is not maintainable under law. Because, the same has been filed in contravention with the provisions of N.I. Act, 1881.”

This appeal has been preferred against the judgment of an acquittal, that too against the judgment of acquittal from a complaint case.

“It is settled propositions of law that, a judgment of acquittal cannot be disturbed unless the findings of the learned Trial Court are perverse or unreasonable. Because, presumption of innocence is reinforced by an order of acquittal passed by the learned Trial Court in favour of an accused. So, there is double presumption of innocence in favour of an accused after his acquittal. Because, firstly the presumption of innocence i.e. available to him (accused) under the fundamental principle of criminal jurisprudence that, every person shall be presumed to be innocent, unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of innocence is further reinforced/reaffirmed and strengthened by the Court. Thirdly, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of an acquittal recorded by the Trial Court. Therefore, the scope of interference in an Appeal against an acquittal like this Appeal at hand is very limited.”

The law in support of the above reasons assigned by the trial for acquittal of the accused (Respondent) from the offence under Section 138 of the N.I. Act, 1881 on the basis of available evidence in the record find support from the ratio of the following decision:-

2009 (3) Civil Law Times 324 (Madras)-Paragraphs (8, 9, 11 & 14)- Mahesh Kumar Vrs. Adi Nath Exports-N.I.Act, 1881-Section 138 (b)- Dishonour of cheque-

“Once demand notice U/s 138 (b) of the N.I. Act, 1881 is received by drawer of cheque, the payee or holder of cheque forfeits his right to again present cheque, as cause of action accrued, when there was failure to pay amount within prescribed period and period of limitation starts to run, which cannot be stopped on any account.

In the present case first demand notice on dishonor of cheque was issued on 15.04.2004. But, the cheque was again presented and on its bouncing second demand notice was given on 26.06.2004 and then complaint was filed-Held, complaint barred by limitation.”

When on the basis of the propositions of law enunciated in the ration of the above decision of the Hon’ble Courts, the reasons assigned by the Trial Court for acquittal of the accused (Respondent) from the offence U/s 138 of the N.I. Act in the judgment of 1.C.C. No.50 of 1991, are not unreasonable, then at this juncture, the question of interfering with the same through this Appeal does not arise at all. So, the Appeal of the Appellant must fail.

In the result, the Appeal is dismissed on merit. The judgment passed on dated 25.03.1995 in 1.C.C. No.50 of 1991, by the Trial Court is confirmed.

Accordingly, the Appeal is disposed of finally.

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