Rohit Kumar Singh @ Rohit Kumar vs State of Jharkhand

Mr. Prashant Kumar, J.—This revision is directed against the judgment dated 30.04.2015 passed in Criminal Appeal No. 202 of 2014 passed by learned J.C. & Additional Sessions Judge-XVIII, whereby the learned appellate court modified the order of sentence and directed the petitioner to undergo S.I. for three months for the offence under section 138 of the Negotiable Instrument Act and pay a sum of Rs. 2,00,000/- to the O.P. No. 2 towards the compensation.

It appears that petitioner has issued a cheque of Rs. 1,96,500/- in favour of the O.P. No. 2, towards the part payment of price of flat, purchased by him. The said cheque has bounced. Accordingly, the present case has been filed and after trial the petitioner has been convicted by both the courts below. In appeal the judgment of the trial court has been affirmed.

However, Sri Suraj Kumar, learned counsel appearing for the petitioner submits that on the date of issuance of cheque, petitioner did not incur any legally enforceable debt or liability, therefore, the offence under section 138 of the Negotiable Instrument Act is not made out.

On the other hand, Sri Bibhash Sinha, learned counsel appearing for the O.P. No. 2 submits that under section 139 of the Negotiable Instrument Act, there is a presumption that the drawer has issued the cheque in discharge of legally enforceable debt and liability unless the same is rebutted by the drawer of the cheque. It is then submitted that the petitioner has not adduced any evidence in rebuttal of aforesaid presumption. Accordingly, it is submitted that the aforesaid plea of the learned counsel for the petitioner cannot be accepted.

However, Sri Bibhash Sinha, submits that at the time of release of the petitioner on bail, petitioner has already deposited Rs. 1,25,000/- which the O.P. No. 2 had received from the court concerned on furnishing surety. He submits that if the petitioner pay rest of the amount then this case may be disposed of in terms of section 147 of the Negotiable Instrument Act.

Having heard the submissions, I have gone through the record of the case. Admittedly, petitioner/accused, who is drawer of the cheque, has not adduced any evidence in rebuttal of legal presumption under section 139 of the Negotiable Instrument Act.

Under the said circumstance, in view of the legal presumption, the contention raised by Sri Suraj Kumar, learned counsel for the petitioner that on the date of issuance of cheque, petitioner was not incurring any legally enforceable debt or liability, cannot be accepted.

Since, there is concurrent finding of the courts below on fact that the petitioner has committed offence under section 138 of the Negotiable Instrument Act, therefore, I am not inclined to interfere with the impugned judgments of the courts below.

However, since Sri Bibhash Sinha, learned counsel for the O.P. No. 2 had proposed that if the petitioner pay rest of the amount then the case may be disposed of in terms of section 147 of the Negotiable Instrument Act, I give one more opportunity to the petitioner to seek instruction from his client as to whether, he is ready to pay rest of the amount i.e. Rs. 71,500/- to the O.P. No. 2 on the next date or not. It is made clear that if petitioner will pay the said amount on the next date then this revision will be disposed of in terms of section 147 of the Negotiable Instrument Act, otherwise the same will be dismissed.

Put up this case on 12.04.2016.