TMI Blog2018 (8) TMI 2048X X X X Extracts X X X X X X X X Extracts X X X X ..... ment from which source he got such huge amount. Whether he had collected from private sources or it was taken out from his account in any bank. Even, there is no whisper in this respect. The attempt to rebut the presumption, amenable to be drawn out what the complainant-appellant has proved is the foundation fact, is apparently very robust, but if the entire transaction is scrutinized with resilience it would surface that there is no reason that a prudent person should believe the opposite. This Court has also noticed that the accused-respondent has acted sometimes in a manner which cannot be stated to be bona fide. Even in the Court, he has stated that he did not receive the notice but the record from the postal department has squarely established that notice was duly served. Even he did not make any attempt to bring someone from the postal department to demonstrate that the communication dated 23.02.2013 (Exhibit-B) is not based on delivery of the registered article. Even there is no infirmity in the admission of the communication received from the Postal Department. As such, this Court does not have any other alternative but to observe that the accused-respondent has gros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant, in order to encash, deposited those cheques in his account in the State Bank of India, RMS Choumuhuni Branch on 01.01.2013. 7. On the same date, i.e. 01.01.2013 he got the bankers note that for insufficiency of funds in the account of the accused- respondent, both the cheques had bounced. Immediately, he arranged for issuance of the demand notice through his authorized lawyer and such notice was issued on 15.01.2013 by registered post with AID. By the said notice, the lawyer asked the accused respondent to make payment of ₹ 9,00,000/- within 15 days from the date of notice, otherwise, the complainant-appellant will be advised to take appropriate action available at law. 8. Since the acknowledgement card did not return, the said lawyer addressed a letter to the Post Master, Agartala Head Post Office and by the communication dated 23.02.2013 (Exbt-6) the Post Master, Agartala Head Office had clearly communicated that the registered article (the notice) was delivered to the addressee on 18.01.2013. 9. The accused respondent by issuing a note dated 21.11.2012 (Exbt-8) has clearly admitted that the price for purchasing the said Tata JD Backhoe Loader was settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed person demanding ₹ 9,00,000/- and the notice was received by the accused respondent on 18.01.2013. 13. In due course, he filed the complaint and he admitted the documents such as the dishonoured cheque No. 636258 dated 21.11.2012 (Exbt.-1), the dishonoured cheque No. 636259 dated 21.11.2012 (Exbt.-2), the bank memorandum dated 01.01.2013 stating the reason of dishonour of the cheque (Exbt.-3), the advocates notice dated 15.01.2013 (Exbt.-4), the counter foil of the deposit slip dated 01.01.2013 (Exbt.-5), the communication from the Post Master, Agartala Head Office to Sri. A Das, Advocate dated 23.03.2013 (Exbt.-6), the envelope containing the communication from the Post Master (Exbt.-7), the acknowledgement letter dated 20.11.2012 untraced by the accused respondent (Exbt.-8). 14. The complainant, PW 1 was cross-examined by the accused respondent. The respondent had projected that the copy he received along with the summon was a copy of the complaint not signed by PW 1. In the cross examination, the complainant-appellant has stated that one Dulal Debnath was his employee and he had seen Suman Debnath only once, but he did not know any person, namely, Subhankar Pal. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, Subhankar Pal, DW 3 was there because he came to collect a sum of ₹ 2,00,000/- from him. He has categorically stated that while receiving the cash the complainant did not return the cheques but assured the accused respondent to return those two cheques in the course of the day. In the cross-examination, he however denied the suggestions projected in contrast to his statements. 21. Having appreciated the evidence, both documentary and oral as adduced by the complainant and the accused-respondent, the Magistrate(Addl. Chief Judicial Magistrate, West Tripura, Agartala) after hearing the parties at length acquitted the accused respondent from the charge of dishonour of cheques, cognizance of which was taken for purpose of trying the said offence. By the impugned judgment and order of acquittal the trial judge delivered order of acquittal on observing that, ......it has already been proved that the accused has not issued the cheque in discharge of the legal liability to the complainant and validly there was no communication from the side of the complainant: to the accused for paying the amount with the help of the demand notice because the demand notice does not bear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not exist or considers the non existence of the consideration so probably that a competent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption what is needed is to raise a probable defence. Even for the said purpose the evidence adduced on behalf of the complainant could be relied upon. 26. In order to rebut the presumption in law, Mr. Bhattacharjee, learned counsel has submitted that the accused respondent has led adequate evidence to probabilize that he had no legal liability to be discharged on the face of the payment he made by cash. 27. Mr. Bhattacherjee, learned counsel has also placed reliance on another decision of the Apex court in John K. Abraham vs. Simon C. Abraham Anr., reported in (2014) 2 SCC 236 : [2014 ALL MR (Cri) 379 (S.C.)]. 28. The Apex court in John K. Abhram [2014 ALL MR (Cri) 379 (S.C.)] (supra) has enunciated the law by restating that in order to draw presumption under Section 118 read along with Section 139 of the NI Act the burden was heavily on the complainant to show that he had received funds and the accused was bound to make payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the cheque received the cheque of the nature referred to Section 138 for the discharge, in whole or in part, of any debt or other liability. 34. Section 118 of the NI Act, which deals specially with the special rule of evidence under the NI Act, 1881 provides the rule of presumption as to ramification of the negotiable instrument. It provides further that, until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date- that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance - that every accepted bill of exchange was accepted within the reasonable time after its date and before its maturity; (d) as to time of transfer - that every transfer of a negotiable instrument was made before its maturity; (e) As to order of indorsements - that the indorsements appearing upon a negotiable instrument were made in the order in which they appear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash in two installments on two different dates and two different persons, viz., PW 1 and PW 2. 39. PW 2 was examined. He has testified in the trial that he had received ₹ 1,00,000/- but that was a part of the payment the accused respondent had promised to pay for the rental of the TATA JD earth cutter. The said amount of ₹ 1,00,000/- was paid in advance as the part payment of the rental for the earth cutter. PW 2 has also admitted in the cross examination, that he issued the receipt (Exbt.-A) in favour of the accused respondent in acknowledgement of the said payment. 40. PW 2 has also stated that the accused-respondent did not turn up to take the TATA JD vehicle on rental from them. PW 2 categorically denied the claim of receiving the entire amount of ₹ 9,00,000/- from the accused-respondent. It is really significant to note that the categorical statement as made that the amount of ₹ 1,00,000/- was paid in advance for renting an earth cutter from Benu Roy, the complainant-appellant, was not even confronted in the cross-examination. Therefore, its consequence would entail as the foundational fact on drawing presumption in respect of discharge of the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch situation has to be weighed. 46. In Hiten P Dalai [2001 ALL MR (Cri) 1497 (S.C.)] (supra) the Apex Court has distinguished or made distinction between the two types of presumption but also has delineated the nature of evidence required to rebut the two. In the case of discretionary presumption, the presumption drawn may be rebutted by the expression, might reasonably be true and which is consistent with the innocence of the accused . In case of statutory presumption, the burden on the accused is heavy and it cannot be held to be discharged merely by reason that explanation offered by the accused is reasonable and probable. It shall be shown that the explanation has its true and probably foundation. The words unless the contrary is proved which occur in this provision, make it clear that the presumption is required to be rebutted by proof not by mere explanation. So probably that a reasonable man would act on the supposition that the probable cause so offered did exist. Unless, explanation is founded on proof, the presumption created by that provision cannot be said to have rebutted. 47. Let us reproduce the passages as relevant in the context, from Hiten P Dalai [2001 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the particular case, to act upon the supposition that it exists . Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. 48. The two other decisions relied by the learned counsel for the accused respondent has not dealt with that aspect. Even, that proposition in Hiten P Dalai [2001 ALL MR (Cri) 1497 (S.C.)] (supra) was not distinguished in any other subsequent decision. 49. In M.S. Narayana Menon [2006(5) ALL MR 33 (S.C.)] (supra) the Apex Court has to some extent deliberated with the precedence in respect of the presumption in general but while dealing with the presumption specially drawn on the basis of the provisions of NI Act, the Apex Court has clearly relied on Hiten P Dalai [2001 ALL MR (Cri) 1497 (S.C.)] (supra). 50. John P. Abhram [2014 ALL MR (Cri) 379 (S.C.)] (Supra) is however, very remote to the context and as such no reference is required to be made. 51. Mr. Bhattacharjee has raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, he has stated that he did not receive the notice but the record from the postal department has squarely established that notice was duly served. Even he did not make any attempt to bring someone from the postal department to demonstrate that the communication dated 23.02.2013 (Exhibit-B) is not based on delivery of the registered article. Even there is no infirmity in the admission of the communication received from the Postal Department. As such, this Court does not have any other alternative but to observe that the accused-respondent has grossly failed to rebut the presumption under Section 139 read with Section 138 of the NI Act. Therefore, this Court is persuaded to interfere with the judgment and order of acquittal dated 27.05.2016 delivered in case No. NI 19/2013. From the evaluation as made above, the accused-respondent is liable to be convicted and is accordingly convicted under Section 138 of the NI Act. 57. As consequence of the conviction, the accused respondent is sentenced to pay fine of ₹ 10,00,000/-. In default of payment of fine, the accused-respondent shall suffer simple imprisonment for two years. That amount shall be paid in the court of the Magist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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