TMI Blog2021 (4) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the present case was filed against her. In her cross examination also she said that she issued two cheques in favour of the complainant. In this regard, she could not produce any evidence at all. She could not recall the dates on which those cheques were issued. She also stated in her evidence that the blank cheques and the stamp paper given by her to the complainant were destroyed by the complainant in her presence. Therefore, question of using blank cheque against her is redundant. Moreover, though she denied to have issued the said cheque of the sum of ₹ 1,30,000/- to the complainant, she has categorically admitted in her cross examination that the signature appearing on cheque No. 028821 (Exbt.1) was her own signature. The fact that after the cheque was dishonoured, complainant issued demand notice within the statutory period demanding the accused to pay the cheque amount is also proved. Having received no response from her, the accused filed the case under Section 138 N.I Act, 1881 in which accused was convicted and sentenced by the trial Court which was reversed in appeal by the Additional Sessions Judge. The accused respondent is held guilty of offence pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent and the fact was informed to the petitioner from his bank vide cheque returning memo dated 27.05.2009 (Exbt.3). [4] The petitioner then issued statutory demand notice dated 01.06.2009 (Exbt.4) to the respondent in terms of Section 138 of the N.I. Act demanding repayment of the said amount. The respondent having failed to make the payment within the notice period, the petitioner filed a complaint under Section 138 of the N.I. Act in the Court of the Chief Judicial Magistrate, West Tripura at Agartala. [5] The case was then made over to the Court of Judicial Magistrate, First Class (Court No.5) at Agartala for trial. The trial Court examined the complainant petitioner under Section 200 Cr.P.C and after taking cognizance of offence under Section 138 of the N.I. Act, summoned the accused respondent. The accused sought for exemption from personal appearance which was rejected by the trial Court and to compel her appearance arrest warrant was issued against her. The complainant respondent also submitted a petition before the Court saying that the original cheque submitted by him along with his complaint was missing from the case record. The bench clerk was directed by the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,30,000/- and in default to suffer S.I for four months. It was ordered that the fine on realisation be paid to the complainant respondent as compensation. [10] In appeal, the learned Additional Sessions Judge held that there was no legally enforceable debt and the complainant could not also prove the fact that he had sufficient fund to provide a loan of a sum of ₹ 1,30,000/- to the accused respondent and more over he failed to prove the presentation of cheque at his bank, return of cheque for insufficiency of fund, service of statutory demand notice upon the accused respondent etc. and on those grounds the appellate Court allowed the appeal of the accused respondent and acquitted her by setting aside trial court s judgment. Hence, the aggrieved complainant has filed this criminal revision petition challenging the impugned judgment of the appellate Court. [11] One of the most essential things which is required to be seen in a case under Section 138 of the N.I Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it reflects advance payment without there being a subsisting debt or liability. In the given context, complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not submitted any copy to show that I submitted it to the post office. It is not a fact that I wilfully sent the demand notice to wrong address. It is not a fact that accused repaied me the loan of ₹ 1,30,000/- or I tore the original cheque intentionally and submitted a photocopy of the same before the court or for this reason I filed the complaint petition after the statutory period. It is not true that I am not entitle to get any money from the accused. [12] Said Swapan Pal, PW-1 from whom complainant PW-1 borrowed ₹ 50,000/- for giving the loan to the accused also deposed at the trial as PW-2. In his examination in Chief, the PW stated that pursuant to the request of the PW-1 he gave him ₹ 50,000/- to him to give the loan to the accused. The complainant borrowed more ₹ 80,000/- from Sajal Laskar and gave a sum of ₹ 1,30,000/- to the accused as loan in his presence. PW-2 further stated that the accused assured repayment of the loan within six months. When she did not return the loan within the period assured by her, the PW accompanied the complaint to her house at 79 tilla within jurisdiction of East Agartala police station when the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 22.5.2009 of a sum of ₹ 1,30,000/- to the complaint. She however, admitted that signature in cheque No. 028821 was her signature. According to her she issued two blank cheques in the name of the complainant. The relevant extract of her cross examination is as under: **** I gave two blank cheques, containing my signatures to Rnku Debnath. There was no written receipt or agreement in relation to the taking of money from Rinku Debnath or handing over blank cheque to him. I took the money and gave cheques to Rinku Debnath in the Agartala court premises. I issued the notice addressed to Swapan Paul after reading the contents and satisfied myself. In may notice I have stated that two cheques were for ₹ 50,000/- and drawn on UBI, G. B. Bazar Branch, Agartala. It is not a fact that I did not hand over two blank cheques to Rinku Debnath in lieu of ₹ 50,000/- loan taken my me. It is not a fact that I issued cheque worth ₹ 1,30,000/- dated 22.05.2009 in favour of Rinku Debnath. The signature in the cheque No.028821 is my signature. (emphasis supplied) [14] Accused produced her colleague Sanjib Roy as DW-2 who was also a clerk of an advocate. Said S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anch of UBI was the clearance branch. According to the witness, the said cheque was sent from UCO Bank district Court Branch, Agartala for clearance. In his cross examination, the PW stated that a cheque may be dishonoured for reasons other than insufficiency of fund. [19] On appreciation of evidence the trial Court held the accused guilty of offence punishable under Section 138, N.I. Act and sentenced her to a fine of ₹ 1,30,000/- and in default of payment of fine, simple imprisonment for four months. Aggrieved accused preferred appeal in the Court of the Sessions Judge in West Tripura Judicial District at Agartala. The appeal was heard by the Additional Sessions Judge,(Court No.2) at Agartala. The appellate Court reverted the decision of the Trial Court holding that the case against the accused was not proved beyond reasonable doubt. The accused was therefore held not guilty and acquitted of the charge. The complainant has challenged the said order of acquittal by filing the present criminal revision petition against the impugned order of the Additional Sessions Judge, Agartala. [20] Counsel appearing for the complainant petitioner contends that the onus to rebut the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly where a presumption is drawn that the holder has received the cheque for the discharge, wholly or in part, of any debt or liability. Of course, the accused is entitled to bring on record the relevant material to rebut such presumption and to show that preponderance of probabilities are in favour of his defence but while examining if the accused has brought about a probable defence so as to rebut the presumption, the Appellate Court is certainly entitled to examine the evidence on record in order to find if preponderance indeed leans in favour of the accused. [23] It is argued by learned counsel of the petitioner that the complainant by adducing sufficient evidence at the trial Court proved that the accused had borrowed loan of a sum of ₹ 1,30,000/- from him and for purchasing a Maruti Car for business and for repaying her debt she admittedly issued a cheque in favour of the complainant which was dishonoured by the bank for insufficiency of fund in the account maintained by the accused. Thereafter the complainant issued statutory notice demanding repayment of the loan which was not responded by the accused. The complainant therefore prosecuted her under Section 138, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law that mere issuance of a cheque and its dishonour would not constitute an offence by itself under Section 138 N.I Act, 1881 unless the basic elements of Section 138 and the eventualities mentioned in Clauses (a), (b) and (c) in the proviso to Section 138 of the N.I. Act, 1881 are satisfied. For better understanding it would be apposite to reproduce the provision which is an under: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with 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 [a term which may be extended to two years], or with fine which may extend to twice the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the cheque issued by her was allegedly dishonoured. The complainant seems to have proved by adducing documentary evidence that he issued such notice (Exbt.4) within 15 days from the date of his receiving the information from the bank that the cheque was dishonoured for insufficiency of fund in the account of the accused. In this regard it has been held by the Apex Court in K. Bhaskaran Vrs. Sankaran Vaidhyan Balan and another; reported in (1999) 7 SCC 510 that the notice can be deemed to have been served on the sendee where the sender has despatched the said notice by post with the correct address written on it unless the sendee proves that it was not really served and he was not responsible for such non service. It has been held by the Apex Court that any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. [27] In the given context, the accused and the complainant were known to each other for long because they worked together as advocate s clerk over a long period of time. Address of the accused was not unknown to the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was sent for clearance to UBI. [31] It has surfaced on record that the accused admitted that she once borrowed money from the petitioner for repaying her loan taken for purchasing a Maruti Car. According to her amount was ₹ 50,000/- for which she repaid ₹ 80,000/- in instalments to the accused. Her defence that she issued two blanks cheques to the complainant and the complainant did not return those cheques to her despite repayment of his loan is not at all provable in the given facts and circumstances of the case. She could not produce any iota of evidence in support of such contention of her. The accused on the other hand by producing documentary evidence has proved that the complainant issued the impugned cheque for sum of ₹ 1,30,000/- for repayment of an existing debt and the said cheque was dishonoured by bank. Accused has also admitted her signature on the said cheque. The fact that after the cheque was dishonoured, complainant issued demand notice within the statutory period demanding the accused to pay the cheque amount is also proved. Having received no response from her, the accused filed the case under Section 138 N.I Act, 1881 in which accused was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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