Sikkim High Court
CRL.L.P/4/2017 of Chiranjilal Pareek Vs Lalan Kumar Roy @ Lalon Kumar Roy on 20 June 2017
No. 04/2017 Chiranjilal Pareek Vs. Lalan Kumar Roy @ Lalon Kumar Roy BEFORE MR. JUSTICE SATISH K. AGNIHOTRI, CJ. 03. 20.06.17 Present: Mr. B. Sharma, Sr. Advocate with Mr. Bhola N. Sharma, Advocate for the Petitioner/Applicant. None for Respondent. … None appears nor is any
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Crl. L.P. No. 04/2017 Chiranjilal Pareek Vs. Lalan Kumar Roy @ Lalon Kumar Roy BEFORE MR. JUSTICE SATISH K. AGNIHOTRI, CJ.
03. 20.06.17 Present: Mr. B. Sharma, Sr. Advocate with Mr. Bhola N.
Sharma, Advocate for the Petitioner/Applicant.
None for Respondent.
…
None appears nor is any representation made on behalf of the respondent.
2. The case of the petitioner is that the respondent had issued two account payee cheques, bearing No. 060505 and 060506 dated 05.05.2015 drawn on IndusInd bank, Siliguri branch, Golden Plaza, Ground Floor, Burdwan Road, Siliguri, amounting to Rs. 4,00,000/- (Rupees Four Lakhs) each in favour of the complainant/petitioner and his brother respectively. On deposit of the said cheques with the bank, it was returned with a remark that “dishonoured due to insufficient funds”.
3. It is further projected by the petitioner herein that a sum of Rs.4,00,000/- (Rupees Four Lakhs) was paid to the respondent in respect of purchase of some property under two sale deeds. On discovery that the property was disputed and the possession of the said property could not be taken, the petitioner wanted refund of the money.
4. For recovery of the money, a title suit, being Title Suit No. 156 of 2012 was filed, which is pending at Jalpaiguri Court. During pendency, a mutual agreement was executed with the complainant/petitioner and his brother Shri Mani Ram Sharma, whereby the respondent assured to pay the amount of Rs.4,00,000/- (Rupees Four Lakhs) to the petitioner/complainant and his brother. The cheques delivered to the petitioner, as aforestated, could not be encashed on account of insufficient funds. Thus, the complaint was filed.
5. Learned Senior Counsel, appearing for the petitioner, submits that the complaint was rejected on the grounds that the authenticity of the agreement dated 02[nd]December, 2012 was doubted and as such, provision of Section 138 of the Negotiable Instruments Act, 1881 could not be invoked.
6. Despite sufficient opportunity given to the respondent, the respondent had chosen not to appear in the matter.
7. Section 138 of the Negotiable Instruments Act, 1881
is attracted when following ingredients are present:
(i) that there is a legally enforceable debt;
(ii) that the cheque was drawn from account of bank for discharge in whole or part of any debt or other liability which pre-supposes a legally enforceable debt; bank for discharge in whole or part of any debt or other liability which pre-supposes a legally enforceable debt;
(iii) cheque so issued had been returned due to insufficiency of funds; as held by the Supreme Court in Krishna Janardhan Bhat vs. Dattatraya G. Hegde : 2008 (4) SCC 54.
8. Thus, the complainant has to establish that there was a legally enforceable debt, a cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability and cheque so issued has been returned due to insufficiency of funds. Apparently, the cheques were issued for discharge of liability and cheques were not encashed for want of funds.
9. In such view of the matter, the Court is of the considered opinion that the judgment impugned in this petition requires reconsideration. Accordingly, the leave is granted.
Index : Yes/ No jk/pm Internet : Yes / No Chief Justice 20.06.2017