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2019 (4) TMI 2049 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - acquittal of the accused - discharge of liability or debt or not - HELD THAT:- The findings of both the Courts below that the initiation of proceeding is bad in law because the notice sent upon the respondent No.2 was bad in law due to absence of signature of learned Advocate in the said notice is erroneous in law and is liable to be set aside. None of the findings of the learned Trial Court as well as the lower Appellate Court as discreetly mentioned in the preceding paragraphs that the petitioner nowhere has stated the exact date on which he gave the alleged loan or there is no specification of denomination of the currency note used in the loan transaction and the absence of endorsement of the advocate are bad in law - the plea of the respondent No.2 that he lost three cheques leading him to make G.D. entry with the police station is not believable story and the both the learned Courts below had committed serious error in appreciating the evidence of the petitioner as well as the respondent No.2. It cannot be said that merely because the amount advanced was not paid in accordance with the provisions of Section 269-SS of Income Tax Act, will make the proceeding under Section 138 of the N.I. Act bad in law. In case in hand, it is found that the respondent No.2 in course of trial has tried to give a plausible explanation that he lost the aforestated cheques and he also made a missing diary, but, his that effort has failed to persuade this Court and his explanations in this regard are far from plausible explanation, which is required to rebut the evidence and the initial presumption that the cheques were issued by him. So, the explanation given by respondent No.2 in course of trial appears to be difficult to accept in the fact of the case - In the present case, according to Trial Court, the demand notice did not contain the signature of leanred Advocate which created a question mark about the validity of said demand notice served upon the accused. Here, the Ext-B contains signature of the complainant himself, so it is valid notice according to section 94 of N.I. Act and over and above the accused actually had received that. The explanation appended to Section 138 explains the meaning of the expression “debt or other liability‟. The provision includes not only debt but other liability as well. The word “liability‟ denotes the state of being liable. The debt or other liabilities for the purpose of attracting the provision are to be legally enforceable. Section 138 treats dishonored cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. In the trial, the accused had admitted that the signature on the impugned Cheques were indeed his own. Once this fact is acknowledged, Section 139 read with Section 118 of the N.I. Act mandates a presumption that the cheques pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and onus is then on the accused to raise a probable defence. The complainant has successfully made out a case of dishonour of cheques as his legally enforceable debt arises, the conviction is to be recorded against the respondent No.2. i.e. Sri Subrata Chowdhury and accordingly, said Sri Subrata Chowdhury is hereby convicted for commission of offence under Section 138 of the Negotiable Instruments Act - It is made clear that if the payment as directed is not paid within the said stipulated period of six months, then, the respondent No.2 i.e., Sri Subrata Chowdhury has to surrender before the Officer-in-charge, West Agartala, police station just on the date of expiry of the said six months, otherwise, the petitioner-complainant may approach the appropriate police authority to ensure the arrest of the respondent No.2 to suffer the sentence. The instant revision petition is allowed.
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