TMI Blog2019 (4) TMI 2049X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom all the charges brought against him by the revisional petitioner under Section 138 of the Negotiable Instrument Act, 1881 2) Briefly stated, the facts of the case, are that the complainant-revisonal petitioner (hereinafter referred to only as the petitioner‟) had filed a written complaint before the learned Chief Judicial Magistrate, West Tripura, Agartala, against the respondent No.2 for an offence committed under Section 138 of the Negotiable Instrument Act, 1881. The learned Trial Court registered the case and after examining the petitioner took cognizance of the said case and issued notice upon the respondent No.2 to appear before the Court. The respondent No.2 on receipt of the summon appeared before the Court and subsequently he was explained the substance of the accusation under Section 251 of CrPC. The controversy rotates that the petitioner being approached by the respondent No.2 had paid ₹ 3,60,000/- to the respondent No.2 in three installments. The respondent No.2 happened to be the neighbour and very close friend of the petitioner. Since the petitioner was not in a position to pay ₹ 3,60,000/- he arranged the money of ₹ 2,60,000/- from hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand notice sent by the complainant does not appear to have the endorsement of the advocate. v) The complainant submitted three cheques for encashment on the month of June and July, 2012 respectively whereas the accused person had already made a GD entry regarding loss of the three cheques on 17.03.2012 i.e., almost four month prior to presentation of the cheques. Vi) The complainant has admitted in his cross- examination that he has written the name of the accused in cheque No.115348 and 115349, thereby raising serious question mark about the validity of those cheques. 5) While arriving at those finding, the learned Trial Court held that the petitioner had failed to prove his case and thus, acquitted the respondent no.2. 6) On statutory appeal, the learned Addl. Sessions Judge also took the same view of the learned Trial Court and, accordingly, affirmed and upheld the said judgment and order dated 24.02.2014. 7) Being aggrieved by the said concurrent judgment, the petitioner has preferred this revisional application stating inter alia that the findings of both the learned Courts below are perverse and committed serious illegality in interpreting the law of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to substantiate his defence by taking the plea of missing of the said cheques issued in favour of the petitioner. 12) Both the Courts below have committed serious error on facts as they even did not consider this aspect of the sequence of transaction, starting from payment of ₹ 3,60,000/- to the respondent No.2 and the missing of the cheques. 13) Further, the petitioner served a statutory demand notice upon the respondent No.2. The respondent No.2 has admitted in his deposition that he received the said registered notice in time, but, a second aspect has come to light that after receipt of the said notice the respondent No.2 came to learn that the cheques were lying with the petitioner and the next natural question under that circumstance is that why the respondent No.2 did not inform the police that the cheques were with the custody of the petitioner. In the cross examination he has stated that it is not the fact that I did not inform the police because I actually gave three cheques to the complainant'. Here also, according to me, the conduct of the respondent No.2 does not seem to be fair enough and it is hard to believe the story that he actually had lost the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the dishonored cheque would not subserve the requirement of law . 17) The learned Sr. counsel also pressed into service another decision in Suman Seth Vs. Ajay K. Churiwal reported in (2000) 2 SCC-380, wherein the Apex Court Stated thus:- 8. It is a well settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the said amount i.e. the cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to the said amount' there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving the break-up of the claim the cheque amount, interest, damages etc, are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonored cheque, the notice might well fail to meet the legal requirement and may be regarded as bad. 18) The learned Sr. counsel appearing for the respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as follows:- 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 that Act, be punished with imprisonment for [a term whichmay be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; b) the payee or the holder in due course of the cheque, as the chase may be, makes a deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of learned Advocate in the said notice is erroneous in law and is liable to be set aside. 28) 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. I already have held that 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. 29) While dealing with the next point of the argument of Mr. Chakraborty, learned Sr. counsel that the loan was not given through account payee cheque as is required under Section 269-SS of the Income Tax Act relying upon the decision of Krishna Janardhan Bhat (Supra), wherein a Division Bench of the Apex Court dismissed the petition under Section 138 of N.I. Act on the ground that the complainant faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. 37) In Keshab Banik vs. Sekhar Banik reported in (2013) 1TLR -528 the Hon‟ble High Court of Tripura has held that in Para-9 that:- 9. Section 94 of the N.I. Act prescribes the very mode of giving notice which reads thus: 94. Mode in which notice may be given-Notice of dishonor may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared as insolvent, to his assignee,; may be oral or written; may, if written, be sent by post; and may be in any form; but it must in from the party to whom it is given, either in express terms or by reasonable intendment that the instrument has been dishonored, and in what way, and that he will be held liable thereon; and it must be given a reasonable time after dishonor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 40) It is one thing to say that issuance of notice is one of the ingredients for maintaining the compliant, but, it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence u/s 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. 41) In Black‟s Law Dictionary, giving of notice is distinguished from receiving of the notice. . A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it. A person receives a notice when it is duly delivered to him or at the place of his business. In Maxwell‟s interpretation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the accused-respondent that the appellant-complainant has fraudulently used the letter head of the Advocate concerned. 47) The object of notice of dishonor to endorser is not to demand payment but clearly to indicate to the party notified that he contract arising on the Negotiable Instrument has been broken by the principle debtor and that the former being a surety, will now be liable for payment. This is the principal embodied in Section 94 of the N.I. Act. The object of giving notice of dishonor is not demand payment for the party giving notice but to warn the party of his liability and in the case of drawer, to enable him to protect him as against the drawee or acceptor who was dishonored the draft. Generally, where the drawer has no funds belonging to him in the drawee s hands neither the presentment of cheque for payment nor notice of dishonor is necessary to charge the drawer. 48) Proviso to Section 138 of N.I. Act, 1881, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonor of a cheque can constitute an offence and become punishable. 49) The first condition is that the cheque ought to have been pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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. 57) The Apex Court in Sampelly Satyanarayan Rao vs. Indian Renewable Energy Development Agency Ltd. reported in AIR 2016 SC-4363 held that the post dated cheque issued as security towards payment of installments of a loan transaction will come under the purview of Section 138 of the Act is, whether the cheque represents advance payment without there being subsisting debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra, Agartala and affirmed by learned Addl. Sessions Judge, West Tripura Agartala on 25.02.2016 are hereby set aside being devoid of merit. 63) As I hold that 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. I have considered all the aspects and accordingly, he is sentenced to pay a fine of ₹ 3,60,000/-(rupees three lakhs sixty thousand only). This fine amount shall be paid to the complainant as compensation. However, if the convict fails to pay the fine amount, he shall suffer simple imprisonment for 6(six) months. 64) It is made clear that if the payment as directed above 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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