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TMI Blog2022 (6) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... cial vehicles. On 21.11.2012, the accused-petitioner Sri Manik Lal Das entered into a loan cum hypothecation agreement No- AGRTL0211200012, with Shriram Transport Finance Company Limited, for purchasing one JCB 3DX (Machinery) vide registration No- TR01R0524 on condition to repay the loan in monthly installments. But after paying a few installments the accused did not repay the rest of the loan amount. On 20.02.2016, on being approached by the complainant the accused petitioner issued a cheque bearing No- 686379 dated 20.02.2016, drawn on United Bank of India, Kaman Chowmuhani Branch for an amount of Rs. 22,12,141/-, in favor of the Shriram Transport Finance Company Limited to discharge his liability. The complainant, being the authorized agent of the company deposited the cheque No- 686379 dated 20.02.2016 in the account of the Shriram Transport Finance Company Limited in the State Bank of India, Udaipur Branch for encashment. But the cheque was returned unpaid on 23.02.2016 by the bank with the remark "Account Closed". Thereafter, on 14.03.2016, demand notice was served on the accused who received the notice on 17.03.2016 but the accused did not repay the loan of the company. Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted in it by law. He has further submitted that the Court below has not exercised his judicious discretion vested in it in accordance with law in passing the impugned judgment and conviction. 9. Further, the Court below has failed to appreciate the well settled principle of law laid down by Apex Court. The Court below has failed to appreciate the cheque No. 686379 dated 20.02.2016 drawn on UBI, Kaman Chowmunai Branch, Agartala amounting to Rs. 22,12,141/- was not issued by the convict petition on 20.02.2016 as the same with signature of the convict and without the figure and date was made available to the complainant company as security for the purpose of ensuring the sanction of loan. Except the said blank cheque, others 35 cheques had been submitted by the convict-petitioner to Shriram Transport Finance Company Ltd. as security. This vital aspect, though put into evidence has not been gone into by the Court below. 10. The Trial Court as well as the Appellate Court failed to appreciate the law that non-receipt of statutory demand notice from the end of the complainant has resulted non-maintainability of the complaint in the eye of law. This proven fact of non-receipt of demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that on the date of institution of the case, the complainant had no authority to lodge the complaint on behalf of Sri Ram Transport Finance Company Limited. He has strenuously argued that the complainant has failed to adduce any evidence to establish that on 02.05.2016 i.e. on the date of institution of the case, the complainant had authority to lodge the complaint on behalf of Sri Ram Transport Finance Company Limited and due to this, the entire proceedings stated on the basis of the complaint lodged by the complainant without such express authorisation, in void. 14. In reply to this, Mrs. P. Dhar, learned counsel appearing for the respondent has submitted that the complainant did not have the written authority to lodge the complaint but the complainant claimed that by virtue of his post, he had an implied authority to lodge the complaint. 15. Sri Ram Finance Company limited is not a person but a corporate entity. Being a corporate entity, the company cannot personally come to the Court for lodging a complaint for violation of the provisions of Section-138 of the NI Act unless it is represented by some human agency. It is also true that the complainant have failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Rs. 35,000/- was to be paid and the loan was to be cleared by 35 installments. He has denied the suggestion that in the post dated cheque they wrote the amount and deposited the same in the bank. 19. DW-1 Sri Manik Lal Das, the accused petitioner, has deposed that he never received any demand notice from Dipankar Majumder. He entered into contract with the complainant for purchasing a second hand dodger and the contract was entered into at Agartala. He further stated that he gave 35 nos. of post dated blank cheques to the company and the company paid Rs. 90 Lakhs directly to the Hindustan Consultation Ltd. being the amount for buying second hand dodger (JCB). When he went to take delivery of the dodger he found that the dodger was not in working condition. There was an Arbitration Clause in the agreement according to which if there was any dispute between him and Sriram Transport Finance Company Ltd. it would referred to the Arbitrator. He has further stated that the complainant is not authorized to file any complaint against him and also that he does not owe any money to the complainant and also that the complainant filed the case by misappropriating the post dated blank ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is an arbitration clause in the agreement which provides that in the event of any dispute between the parties, the matter shall be referred to arbitration to be held at Agartala. Here also I find that the trial court has rightly held that the parties to an agreement cannot by mutual agreement oust the jurisdiction of a criminal court to adjudicate a dispute of criminal nature arising out of the agreement. 24. Also the Ld. Trial court has rightly held that Section 28 of the Indian Contract Act provides that every agreement by which any party thereto is restricted absolutely from enforcing his rights under any contract, or which limits the time within which he may thus enforce his rights; or which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void. 25. As such it is clear that the Clause 15.1 of the agreement which bars the jurisdiction of a criminal court to adjudicate a dispute arising out of the agreement is violative of the Section-28 of the Indian Contract Act and hence it is void. This being so, it is now the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal cheque bearing No- 686379 shows that a cheque of Rs. 22,12,141/-. it was issued by Sri Manik Lal Das in favour of Shriram Transport Finance Company Limited and his signature is written in the cheque. It also reveals that the cheque was issued against the account of the accused petitioner maintained in the United Bank of India, Kaman Chowmuhani Branch, Agartala. 30. The accused petitioner has not denied his signature in the cheque. But he claimed that he had given thirty five post dated cheques as security for the loan taken by him and one of these cheques was misused by the complainant for lodging the instant complaint. Thus, the fact that the cheque was issued by the accused petitioner remains undisputed. On the question whether the cheque was issued by the accused petitioner for discharging a legally enforceable debt, Section-118 (a) of the Negotiable Instruments Act provides that a presumption is attached to every negotiable instrument that it was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated, or transferred for consideration. Section 139 of the N.I. Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions of this Act, be punished with imprisonment for 19 [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, 20 [within thirty days] of the receipt of information by him from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial ingredient which requires to be established is that the payee or the holder in due course of the cheque 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 the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. 39. In his evidence, the complainant, who was examined as (CW-1) has deposed that he had issued the demand notice in respect of the dishonor of the said cheque through his advocate Sri Anjan Debnath on 14.03.16 by registered post and it was received by the wife of the accused petitioner, on behalf of the accused petitioner on 17.03.2016. The Acknowledgment card has been produced by the complainant which has been proved into evidence and the same is marked as Exhibit-5 and the postal registration slip produced by the complainant is marked as marked as Exhibit-6. The Acknowledgment card bears the signature of the wife of the accused petitioner. This shows that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment received and the cheque issued and he has not even advanced any evidence with regard to the issuance of post dated cheques. Further, he has not placed any evidence before this Court with regard to the non-compliance of the notice issued by the complainant show that the recipient is a stranger. The complainant being the branch manager of Shriram Transport Finance Company Ltd., filed the complaint as his position as Manager empowered and authorized him to file the same. However, at a later stage the said authorization has also been filed. The argument advanced on the point of arbitration is not applicable in the facts and circumstances of this case since, it governs under the special statute of Central Act under Section-138. Since the point regarding legal enforceable debt has not been demolished by the counsel appearing for the petitioner, this Court has no hesitation to confirm the orders passed by the learned Courts below. 43. The litigation under Section-138 of the NI Act though, it is statutorily technical in nature, the argument advanced on the point of cheque numbers being 686379, but in the legal notice the cheque number being noted as 6863793, it is purely tech ..... X X X X Extracts X X X X X X X X Extracts X X X X
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