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2023 (7) TMI 1058 - HC - Indian LawsDishonour of Cheque - Legally enforceable debt or not - acquittal of the accused - rebuttal of mandatory presumption - HELD THAT:- Once the fundamental ingredients which gives rise to cause of action under Section-138 of N. I. Act have been established a mandatory presumption under Section-139 of N. I. Act, is effected in favour of complainant and it also extends to the existence of legally enforceable liability itself. A three judged bench of Hon'ble Apex Court in RANGAPPA VERSUS SRI MOHAN, [2010 (5) TMI 391 - SUPREME COURT] has held that this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.” On perusal of the record it is found that complainant did not adduce the original deed of partnership and accordingly not exhibited the same. Furthermore Sri Asish Datta (arbitrator) was not cited as a witness by the complainants and no original A/C No. 11866553823 (C/C) was submitted and exhibited. Moreover, at the time of preparation of deed of addendum 03 persons namely Raiharan Majumder, Ashis Datta and Umesh Majumder put their signatures as a witnesses but they were not examined by the complainant and in respects of cheques, as per deed of addendum, were issued on 19.12.2016 and it is deposited in the bank on 31.07.2017 i.e. to say beyond the period of limitation i.e. six months. Thus, this Court is also of the opinion that the accused has successfully rebutted the mandatory presumption of law and also successfully controverted the story of the complainant. Complainant in his complaint petition as well as in examination-in-chief stated that they have been doing business of brick industries and construction work of the M/S Vida Engineering Company Ltd., and the accused was made attorney on behalf of the said Vida Engineering Company Ltd. but no document is placed by the complainants to prove the same and it is also admitted by the complainants in their cross-examination. The complainant is also failed to prove that on the day of issuing of cheque the liability of accused was equivalent to the cheque amount. As per Exbt.2, i.e. the reply of notice to accused person and he admitted that there has been a debt of Rs.29,00,000/- with SBI, Belonia Branch in the name of partnership farm. Section-138 creates a deeming offence. The provisos prescribe stipulations to safeguard the drawer of the cheque by providing them the opportunity of responding to the notice and an opportunity to repay the cheque amount. The conditions stipulated in the provisos need to be fulfilled in addition to the ingredients in the main provision of Section-138. It has already been concluded above that the offence under Section-138 arises only when a cheque that represents a part or whole of the legally enforceable debt at the time of encashment is returned by the bank unpaid. Since the cheque did not represent the legally enforceable debt at the time of encashment, the offence under Section-138 is not made out. The subject matter involved in this petition is not the cheque amount but, it is a settlement of account of the transaction made is the amount made under the demand notice i.e. Rs.13,50,000/- but whereas the cheque amount is Rs.10,00,000/- each x 4 = Rs.40,00,000/-. Since, litigation under Section-138 is purely technical in nature, the scope of the same cannot be enlarged. This Court is of the view that the appellants have failed to prove their projected case against the respondent No.1 and consequently, the instant appeal preferred by the appellants stands dismissed. Hence, the order of acquittal recorded by the learned Court below does not deserve any interference. The Judgment and order of acquittal passed by the learned Court below is affirmed.
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