1 Criminal Appeal (U/S) No.3 OF 2011 - - - - Against the order of acquittal passed by Judicial Magistrate Ist Class,Bhagalpur, in case No. C2238 of 2006/Tr. No. 2119 of 2010 - - - - Sanjay Kumar Kedia son of RamChandra Kedia @ Ram Chandra Agrawal, resident of Mohalla-Sujaganj Bazar,Tinkathia Gali, Police Station Kotwali, District Bhagalpur … … Appellant Versus RAMAVATAR BAGADIA son of Radha Krishna Bagadia, resident of Mohalla Hadea Patti, Sujaganj Bazar, P.S. Kotwali,District Bhagalpur … … Respondent For the appellant: Shri Gopal Prasad Roy For the State: Shri S.N.Prasad, A.P.P. P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- This appeal has been preferred by the appellant Sanjay Kumar Kedia against the order of acquittal dated 10.6.2010 passed by Sushri Akansha Kashyap, Judicial Magistrate, Ist Class, Bhagalpur, in Case No.2238 of 2006/Tr. No. 119 of 2010 by which she acquitted the respondent of offences under Sections 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. 2. The lower court records have been received. 3. The complaint petition itself recites that the complainant was running a wholesale business in clothes, named and styled as M/s Kedia Trading 2 Company, Sujaganj Bazar, Tinkathia Gali, Bhagalpur. The respondent was a retailer in clothes and his establishment was M/s Gaurav Stores situated in the same locality of Sujaganj Bazar but at a different place Hadea Patti. The complainant and the accused used to deal with each other in clothes and sometimes payment used to be made in cash and sometimes by cheque. 4. It was stated that on 27.9.2006 the respondent handed over a cheque of rupees fifty thousand bearing cheque no. 158889 drawn on Indian Bank, Bhagalpur which was accepted by the complainant on account of commercial relationship between the parties. The cheque was presented for encashment on 23.10.2006 but that bounced and, accordingly, an information was received by the complainant. A pleader’s notice was given by the complainant to the respondent but in spite of receiving the same he did not make payment. The complainant, as such, inferred that the respondent had issued the cheque in question only with a view to defrauding him and had, in fact, defrauded him of an amount of rupees fifty thousand. 5. After due formalities the solitary accused was summoned and was put on trial. 3 6. During the course of trial the complainant examined himself as P.W.1. Besides the facts stated in the complaint petition, the complainant in his cross-examination in paragraph 3 has stated as to what was the commercial and, specially, the transactional relationship between the complainant and the accused. He has admitted that on earlier occasions also the respondent used to give to him similar cheques for continuing the purchase of clothes on credit. It was stated by P.W. 1, the complainant, that whenever he gave clothes to the respondent on credit, he used to obtain a cheque from him in lieu thereof and as soon as he used to get back the price of the clothes he used to return the cheque to the respondent. In the same commercial relationship, the complainant stated, he had received the cheque in question and it had been pointed out by the respondent to him that he will pay up the credit amount and shall get back the cheque. The cheque which bounded had been handed over to the complainant under the above terms. Thus, it is evidently clear from the very evidence of the complainant that the presentation of the cheque to the complainant was as a matter of securing the credit amount which was the price 4 of the clothes supplied to the respondent on credit. 7. Section 138 of the Negotiable Instruments Act reads as under: “Dishonour of cheque for insufficiency, etc. of funds in the account- 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, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is 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, without prejudice to any other provision of this Act, 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 both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, 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, [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 5 the cheque within fifteen days of the receipt of the said notice.” As may appear from the plain reading of the provision, the cheque which is issued must be for payment of any amount of money to any other person from any particular account for the discharge, in the whole or in part, of any debt or other liability. Thus, it is necessary that the complainant, in such a case, must specifically make a very clear and unambiguous statement on facts that the accused was owing a particular amount as “ a debt or any other liability” which was required to be paid back and for that purpose the cheque had been issued. 8. I have extracted the facts stated in the complaint petition. What is found from the reading of the facts stated in the complaint petition is that there was no clear and unambiguous statement made by the complainant that the respondent was under any debt on account of borrowing any money or on account of any particular advancement of money by the complainant to him or that he was under ay other liability or obligation of making payment of any particular sum of money towards the complainant. The complainant simply stated that he received the cheque in question of the value of 6 rupees fifty thousand. He did not state as to what for the respondent was issuing the cheque to him, much less, there was no reference on liquidating any debt or other liability under which the respondent was issuing the same. Above all, the reason on which the cheque was issued has been stated by the complainant himself in paragraph 3 of his evidence and that evidence takes the air completely out of the sail of the prosecution case. It was quite in terms of understanding reached between the two transacting parties in a trade and it had nothing to do with the liquidation of any debt or any other liability. 9. While considering the judgment in question, I find that the learned Magistrate has very clearly picked up the distinctive features of the case as regards recording of finding on the constitution of the offence. The learned Magistrate has very correctly recorded that the offence under Section 420 of the Indian Penal Code was not established because of non-constitution of the ingredients by the facts and evidence of the present case. Similarly, she has also read out the evidence correctly regarding the existence of trade relationship between the parties and the 7 terms on which the business of clothes was being transacted between them and has rightly held that it was never for the payment of any dues or any other liability that the respondent was issuing the cheque. 10. While making the submission Shri Gopal Prasad Roy, learned counsel for the appellant was submitting a list of citations but, unfortunately, those citations did not contain the year of reference and the cases which are reported at pages 2895 and 3897. As such, this Court finds itself in an extreme difficult position to consider those decisions which the counsel was having in his mind, but could not place them before the Court properly. The office shall preserve the slip of citations as part of the record. 11. In the light of the above discussions, this Court does not find any reason to admit the appeal in spite of having granted leave to appeal and the same is dismissed as of no merit. ( Dharnidhar Jha, J.) Patna High Court The 26th April, 2011 Kanth/N.A.F.R.