TMI Blog2023 (8) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. The impugned judgment order set aside - appeal allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n defendant bank account and on 26.03.2021 the UCO Bank, Belonia Branch returned the said cheque to the complainant along with a return memo informing him dishonour of said cheque for the reason of funds insufficient in defendant bank account. The accused person has mischievously and intentionally issued the aforesaid cheque with ulterior motive and further instructed to the complainant to present for encashment knowing fully well that the said cheque would not be honoured on presentation on account of insufficient of funds in his account. The said cheque all over clearly proves the intention of the accused and perpetuate fraud to the complainant indulging in cheating and criminal misappropriation with the complainant and due to dishonour of the said cheque, the complainant through his engaged Counsel sent a legal notice dated 24.04.2021 upon the accused person to repay the said cheque amount within 15 days from the delivery of the said notice to the accused person. In default the complainant, the complainant would be compelled to seek redress in the course of law and from the acknowledgement it is evident that on behalf of the accused his wife Runu Roy Barman received the said not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 a 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 thereon; (f) as to stamps--- that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course----that the holder of a negotiable instrument is a holder in due course; Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence of fraud, or for unlawful consideration, the burden of proving that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of human conduct, for a person to keep substantial amount in cash with him idle instead of earning some return by keeping it in bank or investing in some instrument. If loan was advanced by withdrawing money from the bank, then the bank statement showing withdrawal of the amounts advanced on different dates could have been filed by the complainant to substantiate his claim, which was not done in the present case. Thus, both the scenarios give rise to doubts regarding actual advancement of loan. Another relevant factor in the case is failure of complainant to disclose the loan amount in his ITR for the relevant year. The fact that the complainant admittedly failed to disclose the loan of Rs. 9,75,000/- in his ITR also raises doubt regarding truthfulness of complainant version. [9] Complainant in his complaint petition, legal notice as well as in examination-in-chief stated that he presented the alleged cheque to his banker, i.e. UCO Bank, Belonia through his bank account for collection of cheque amount but complainant banker, i.e., UBI Bank, Belonia Branch returned the said cheque for the reason of Fund Insufficient . Ld. Counsel further submitted that in the instant case co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining to the impugned judgment dated 17.08.2022, passed by the Learned Chief Judicial Magistrate, South Tripura, Belonia in case No.NI- 17 of 2021. (iii) Issue Notice, calling upon the respondents and each one of them, to show cause as to why the impugned judgment dated 17.08.2022 passed by the learned Chief Judicial Magistrate, South Tripura, Belonia in case No. NI-17 of 2021 shall not be quashed/set aside. (iv) After hearing the parties, in terms of the grounds set for the above, be pleased to quash/set aside the impugned judgment dated 17.08.2022, passed by the Learned Chief Judicial Magistrate, South Tripura, Belonia in Case No.NI- 17 of 2021, and thereafter, allow the instant Appeal; (v) And pass any other Order(s) as may be deemed fit and proper for ends of justice. [13] Mr. P Roy Barman, learned senior counsel assisted by Mr. K. Chakraborty has submitted before this court that the learned trial court while passing the impugned judgment dated 17.08.2022 has committed manifest error of law in failing to appreciate that as it was clearly proved that the Cheque bearing No.776515 dated 22.03.2021 for an amount of Rs. 9,75,000/- drawn at UBI, Belonia Branch, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmer process by sending the notice to the drawer in the correct address. 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 different strategies and he could escape-from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt in interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. [17] Reliance has also been placed on another judgment of the apex court in C.C. Alavi Haji vs Palapetty Muhammed and Another reported in (2007) 6 SCC 555 where the apex court has dealt with regard to the service of notice and also Section 138 of the NI Act: 6. As noted hereinbefore, Section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so. Apart from civil liability, criminal liability is sought to be imposed by the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 21. In Maxwell's Interpretation of Statues the learned author has emphasized that provisions relating to giving of notice often receive liberal interpretation, (vide page 99 of the 12th Edn.) The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Clause (b) of the proviso to Section 138 of the Act show that payee has the statutory obligation to make a demand by giving notice. The thrust in the clause is on the need to make a demand . It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t err in discarding the appellants‟ defence and upholding the onus imposed upon them in terms of Section 118 and Section 139 of the NIA. [19] On the contrary in order to buttress the contention as made by Mr. PK Biswas, learned senior counsel assisted by Mr. R. Nath, learned counsel for the respondents, reliance has been made on a judgment passed by the apex court in Rajaram Sriramulu Naidu (Since Deceased) Through L.Rs vs. Maruthachalam (Since Deceased) Through L.Rs. reported in AIR 2023 SC 471 whereby the apex court has observed in the following manner: 13. It can thus be seen that this Court has held that once the execution of cheque is admitted, Section 139 of the N.I. Act mandates a presumption that the cheque was for the discharge of any debt or other liability. It has however been held that the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. It has further been held that to rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the learned Trial Court. 25. In the present case, we are of the considered opinion that the defence raised by the appellant satisfies the standard of preponderance of probability . [20] Learned counsel for the respondent has drawn the attention of this court to cross-examination of PW-1 Sri Nabarun Datta, the relevant portion of which is extracted herein below: I received rent for an amount of Rs.45 to 50 thousand per month in cash from my household property situated at Agartala as well as Belonia. My wife also contributed of Rs. 50,000/- in cash when I contributed Rs. 4,75,000/- in cash. I also filed another case against Prabir Bahadur under NI Act for an amount of Rs. 200000/-. In my complaint petition as well as my examination-in-chief I did not mention on which date and time I advanced the loan amount of Rs. 9,75,000/- to Goutam Roy Barman. [21] Simultaneously, attention has been drawn to the examination in chief of PW-2 Smt. Anupama Majumder Datta, the same is extracted herein below: That I say in the month of March 2020 the accused person came our house and accordingly my husband paid the accused person Rs. 9,75,000/- (Rupees nine lakh seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139. Presumption in favour of holder. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.] Section 27 in The General Clauses Act, 1897 27. Meaning of service by post. Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. [24] With regard to the giving of notice and receipt of notice this court is of the view that it is amply clear from a bare reading of the sub-clause of Section 138 of the NI Act that on the part of the payee, he has to make a demand by giving a notice‟ i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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