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Don Ayengia Versus The State of Assam & Another

2016 (1) TMI 951 - SUPREME COURT

Dishonor of cheque / Promissory Note - Conviction of respondent u/s 138 of the Negotiable Instruments Act, 1881 and dismissed Criminal Appeal No.10 of 2012 filed by the Complainant/Appellant. - It is not in dispute that the execution of the Promissory Note and the endorsement made by the Respondent has been satisfactorily proved at the trial. Concurrent findings recorded by the trial court and the first appellate court to that effect conclude the factual part of the controversy. The only questio .....

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f prosecution as has indeed happened in the case at hand.

The argument that the respondent had no liability to liquidate the debt owed by Nazimul Islam, has not impressed us. What is important is whether the cheques were supported by consideration. Besides the fact that there is a presumption that a negotiable instrument is supported by consideration there was no dispute that such a consideration existed in as much as the cheques were issued in connection with the discharge of the out .....

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ied the law applicable to the same.

Conviction upheld - Decided in favor of appellant. - Criminal Appeal Nos. 82-83 of 2016 (Arising out of S.L.P. (Crl.) Nos.4517-4518 of 2014) - Dated:- 28-1-2016 - CJI. T. S. Thakur And Kurian Joseph, JJ. JUDGMENT T. S. Thakur, J. 1. Leave granted. 2. These appeals arise out of a judgment and order dated 2nd April, 2014 passed by the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh at Guwahati in Criminal Appeal No.10 and Criminal Revisio .....

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f land. It is not in dispute that the Complainant/Appellant paid to Nazimul Islam in connection with the said agreement a sum of ₹ 10,00,000/- (Rupees Ten Lakhs only). It is also not in dispute that the agreement did not materialise in the execution of the work in question with the result that the same was cancelled in terms of a Promissory Note dated 13th August, 2007 executed by Nazimul Islam in favour of the Complainant/Appellant. The Promissory Note, apart from cancelling the agreement .....

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t whereof was acknowledged by the Complainant/Appellant. The Promissory Note, at the same time, somewhat contradicted itself when it mentioned that the cheques were being issued as a security and shall be returned to Nazimul Islam when the amount of ₹ 10,00,000/- is paid by him within a period of one month. Interest at the bank rates was also promised to be paid on the said amount of ₹ 10,00,000/-. 4. The cheques so received by the Complainant/Appellant appear to have been presented .....

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by him and handed over to Nazimul Islam. This acknowledgment was reflected in the form of an endorsement on the Promissory Note in which he agreed to the cheques being presented for payment after 25th September, 2007. The Complainant/Appellant accordingly once again presented the cheques for payment on 5th November, 2007 but the same were dishonoured by the bank for the third time. This led to the issue of a statutory notice by the Complainant/Appellant to which the Respondent sent a reply throu .....

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nt against both Nazimul Islam and Haren Mudoi. Since Nazimul Islam had, in the meantime, passed away, proceedings against him abated but the trial court found the Respondent guilty and accordingly convicted him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo simple imprisonment for a period of one year. In addition, the trial court awarded compensation to the Complainant/Appellant in a sum of ₹ 12,00,000/- to be paid within .....

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entence of imprisonment was, in that view, set aside by the appellate court. 7. Criminal Appeal No.10 of 2012 and Criminal Revision No.41 of 2012 were then filed before the High Court at Guwahati by the parties. While Criminal Appeal No.10 of 2012 was filed by the Complainant/Appellant, Criminal Revision No.41 of 2012 challenged the conviction of the Respondent by the trial court and affirmed by the Appellate Court for an offence under Section 138 of the Negotiable Instruments Act, 1881. The Hig .....

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ich the deceased Nazimul Islam had acknowledged his liability to refund the amount of ₹ 10,00,000/- received by him from the Complainant/Appellant in this appeal. The Promissory Note was in the following words: PROMISSORY NOTE Dated 13.8.2007 I Shri Nazimul Islam s/o Late Sirajul Islam resident of Bishnu Rabha Path Beltola do hereby declare that after mutual discussion between us (the parties) as per agreement dated 06/07/07 have decided to cancel the said agreement and as such the advance .....

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he payments are received from me, within the mentioned period. Further it may be also be mentioned that one month s bank interest shall be paid by me, after the payment is cleared, within the stipulated period. (Nazimul Islam) 13.8.2007 9. We may also extract, at this stage, the endorsement which the Respondent made on the Promissory Note acknowledging that the cheques handed over to the Complainant/Appellant herein were actually issued by him and agreeing that the same may be presented for paym .....

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the trial court and the first appellate court to that effect conclude the factual part of the controversy. The only question that survives in the above background is whether the cheques issued by the Respondent were meant to discharge, in whole or part, any debt or other liability within the meaning of Section 138 of the Negotiable Instruments Act, 1881. 11. We have no hesitation in answering that question in the affirmative. The facts as narrated above and as held proved by the trial Court and .....

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/liability aforementioned but promised to liquidate the same within one month with interest at the bank rate. Five cheques handed over were to be returned but only upon payment of the amount in question. Such being the fact situation, it cannot be said that the cheques had nothing to do with any debt or other liability. As a matter of fact, the existence of the debt or liability was never in dispute. On the contrary, it was acknowledged by Nazimul Islam who simply sought one month s time to pay .....

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all have to be returned. There would be no reason for their retention by the complainant or for their presentation. In case, however, the amount was not paid within the period stipulated, the cheques were liable to be presented for otherwise there was no logic or reason for their having been issued and handed over in the first instance. If non-payment of the agreed debt/liability within the time specified also did not entitle the holder to present the cheques for payment, the issue and delivery .....

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