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TMI Blog2023 (8) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... om the fact that a trial was initiated on the complaint filed by the complainant alleging that he and the accused in course of personal transaction since long back become acquainted with each other. Gradually, they built up a good and cordial relation with each other. In the month of March, 2020 accused person approached to the complainant and requested him to pay an amount of Rs. 9,75,000/- to meet up the necessity for running the family business assuring the complainant that the accused person will repay the said money within one year from the date of receiving the money. Therefore, on the basis of said assurance the complainant had given Rs. 9,75,000/- to the accused person in the month of March, 2020. Thereafter, as per the assurance of the accused person, and in order to discharge of his liability the accused person issued a cheque to the complainant vide cheque no. 776515 dated 22.03.2021 of Rs. 9,75,000/- drawn on his bank account lying in the United Bank of India (now PNB), Belonia Branch. At the time of issue the cheque two witnesses were present and thereafter the complainant presented the said cheque to the UCO Bank, Belonia Branch through his bank account for collection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of any amount of money out of that account to the complainant. b. The said payment was made for discharge of a legally enforceable debt or other liability, in whole or in part. c. The said cheque were returned unpaid by the bank. d. The cheque was presented to the bank within a period of three months from the date on which it was drawn or within the period of its validity whichever is earlier. e. The payee or the Holder in due course of t cheque as the case may be made a demand for the payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. f. The drawer of the cheque fails to make the payment of the said amount of money to the payee or as the case may be the Holder in due course of the cheque within 15 days of the receipt of the said notice. [6] The learned court below has dealt with the Sections 118 and 139, being the special rules of evidence applicable to the case as follows: "118. Presumption as to negotiable instruments.----Until the contrary is proved, the following presumptions shall be made:-- (a) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting debt. The onus, therefore, shifts on the accused-appellant to establish a probable defence so as to rebut such a presumption. [8] The learned court below while churning out the source of the income has observed in the following manner: Admittedly, complainant did not submit any document to show that he has property in Agartala and received rent from the same and further did not place any document to prove that his wife contributed Rs. 5,00,000/- to him. No ITR return is submitted before the court. I am of the view that if the loan transaction involved smaller amount of money in cash and the source of the same can reasonably be proved/explained by the complainant, then, such transactions in the absence of any other reasons, ought not to be automatically considered as unaccounted money. But here it is not explained why loan for such a huge amount was advanced in cash. It is also not explained whether his personal savings were kept in cash at home or deposited in bank. If his personal savings were lying in cash with him, then it is not explained why he was having his savings in cash at home. It is not shown by the complainant that he had any particular reason to keep his sav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has observed in the following manner: 15. In the background of the above facts and circumstances the presumption u/s 139 stands rebutted. Once presumption u/s 139 N.I. Act is rebutted, burden of proof shifts upon the complainant to prove as a matter of fact that cheque was actually issued in discharge of liability. As discussed above, the complainant has failed to prove the actual liability of the accused to the extent of cheque amount. Therefore, complainant has not been able to prove that the cheque was issued by the accused in discharge of legal debt or liability towards the loan. 16. As such, I hold that accused has remain successful in rebutting the mandatory presumption of law in favour of the complainant. I accordingly return a finding of not guilt against the accused person namely Shri Goutam Roy Barman. 17. The accused person namely Shri Goutam Roy Barman is hereby acquitted for the offence as punishable under section 138 of N.I Act, 1881. [12] Aggrieved by the impugned judgment dated 17.08.2022 passed by the Learned Chief Judicial Magistrate, South Tripura, the appellant has approached this court seeking following relief: (i) Admit the instant appeal (ii) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e miserable failed. [15] It is further contended by the learned counsel for the appellant that the learned court below has miserably failed to take into account the context of M.D Thomas vs P.S Jaleel and Another reported in (2009) 14 SCC 398 and acquitted the respondent. [16] Mr. P Roy Barman, learned senior counsel has placed his reliance on a judgment of the apex court in K. Bhaskaran vs. Sankaran Vaidhyan Balan and Another reported in (1999) 7 SCC 510 with regard to receipt of service of notice. Where the apex court has observed as follows: 18. On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving" the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement. 7. The issue with regard to interpretation of the expression giving of notice/ used in Clause (b) of the proviso is no more res integra. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr., the said expression came up for interpretation. Considering the question with particular reference to scheme of Section 138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days "of the receipt" of the said notice. "Giving notice" in the context is not the same as "receipt of notice". Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause (c) of the proviso. Emphasizing that the provisions contained in Section 138 of the Act required to be construed liberally, it was observed thus: "20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bald denial regarding genuineness of the Deed of Undertaking dated 07.11.2000, despite admitting the signatures of Appellant No. 2 thereupon, does not cast any doubt on the genuineness of the said document. 17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar : (2019) 4 SCC 197 , where this court held that: "36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt." 18. Considering the fact that there has been an admitted business relationship between the parties, we are of the opinion that the defence raised by the appellants does not inspire confidence or meet the standard of "preponderance of probability‟. In the absence of any other relevant material, it appears to us that the High Court did not err in discarding the appellants‟ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d given a loan to the accused from his agricultural income was found to be unbelievable by the learned Trial Court. The learned Trial Court found that it was highly doubtful as to whether the complainant had lent an amount of Rs. 3 lakh to the accused. The learned Trial Court also found that the complaint had failed to produce the promissory note alleged to have been executed by the accused on 25 th October 1998. After taking into consideration the defence witnesses and the attending circumstances, the learned Trial Court found that the defence was a possible defence and as such, the accused was entitled to benefit of doubt. The standard of proof for rebutting the presumption is that of preponderance of probabilities. Applying this principle, the learned Trial Court had found that the accused had rebutted the presumption on the basis of the evidence of the defence witnesses and attending circumstances. 21. The scope of interference in an appeal against acquittal is limited. Unless the High Court found that the appreciation of the evidence is perverse, it could not have interfered with the finding of acquittal recorded by the learned Trial Court. 25. In the present case, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 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 case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. 139. Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent had duly received the Notice, and it was nowhere pleaded by the respondent that he and his wife were living separately during the relevant point of time, hence burden was upon the respondent to substantiate that he did not receive the Notice. It is submitted that just to evade the liability of Section 138 of the Negotiable Instruments Act, 1881, the respondent has taken such umbrage of non-receipt of the Notice. Hence, a reasonable presumption has to be drawn that the husband did have the knowledge regarding the receipt of notice as they were staying together. Thus, it cannot be said that notice served on the wife is not served on the husband under Section 138 of NI Act. [26] It has also been established that the cheque in question got the signature of the accused. It can be ascertained from this act of the respondent that he, at some point of time, intended to repay the complainant. This court is of the view that the mere acceptance of the signature on the part of the accused on the check implies that it is legally enforceable debt and hence the debt is admitted. There is no sufficient evidence in favour of the accused person to deny version of the complainant. [27] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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