TMI Blog2023 (12) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... able doubt. It has been held in a catena of judgment of various constitutional Courts including the Apex Court that the presumption under Section 139 of the Act is rebuttable presumption in nature, since the accused issuing the cheque is at liberty to prove to the contrary. The presumption of law pursuant to the provisions under Section 139 of the Negotiable Instruments Act, 1881, would not release the prosecution from burden of proving the fact that the relevant point of time there existed a legally enforceable debt as against the accused persons, in this case also the Court has to ascertain if such a initial burden is discharged by the prosecution appropriately or not. Only then the Court should apply the presumption as above against the accused persons to expose them for rebuttal of the same. Considering the nature of transaction as shown by the exhibit 1 , I find that the decision of the first appellate Court that money if at all changed hands, was pursuant to the business undertaken by the present appellant and the cheque was handed over as a security in lieu of obtaining the amount. This is more so, when there is no doubt in view of exhibit 1 that the parties have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble debt. Ms. Mitra says that the provisions of Bengal Money Lenders Act, 1940, would not be applicable in a case under Section 138 of the Negotiable Instruments Act, 1881, and the entire proceedings before the Magistrate would be independent and exclusive of any embargo what so ever, under The Bengal Money Lenders Act, 1940. Ms. Mitra says that the merits of the case was required to be considered independently though the first appellate Court has misdirected itself to appreciate this settled legal position, while delivering the judgment impugned. 4. In respect of her contentions Ms. Mitra has relied on the following two judicial pronouncements:- (i) Samarendera Nath Das vs. Supriya Maitra reported in (2006) 3 CHN 518, (ii) Sajal Guha vs. Maniklal Ghosh reported in 2016 (1) AICLR (Cal) 498. 5. The following portions in the judgment of Samarendra Nath Das vs. Supriya Maitra has been relied on:- 9. ..... At this stage, prima facie the complainant is the holder of cheque and the presumption under section 139 of the NI Act is in his favour. The cheque when presented by the complainant to bank was dishonoured and the cheque bears the signature of the accused p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 13 of the Money Lenders Act cannot be made applicable in this case. Thus, lending of money even without licence has not been specifically barred by the West Bengal Lenders Act and as such the payment made by the complainant to the respondent was perfectly valid by the said Act of 1940. If that be so the argument of the respondent that the complainant appellant had no legally enforceable debt as against the respondent cannot have any leg to stand on. The decision of the learned trial court on this point that there was no legally enforceable debt is not tenable and this Court respectfully differs with that view. 7. Ms. Mitra has urged that the impugned judgment may be set aside in this appeal. 8. Respondent s argument is based on the following two broad aspects. Mr. Dan representing the respondents has submitted firstly that the cheque which is being said to have been dishonoured, was not issued by the respondents against any legally enforceable debt but only as a security against the amount of money borrowed by them from the appellant/complainant, he being a money lender by profession. By referring to the relevant provision of Bengal Money Lenders Act, 1940, Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t upon the complainant to serve demand notice to the accused persons. He has not failed in pointing out that the service of notice would denote the notice reaching to the hands of the respondents/accused persons by dint of which the respondents would have gathered direct knowledge about the contentions made therein. It is stated that unless such a statutory notice is furnished, the proceedings under Section 138 of Negotiable Instruments Act, 1881 is only illegal and not maintainable. On this Mr. Dan has relied on the judgment of M/s. Harman Electronics (P) Ltd. Anr. vs. M/s. National Panasonic India Ltd. reported in (2008) 17 S.C.R 487, to relay on the following paragraph:- 14. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint 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 under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t due, asking the present respondents to repay the loan amount of Rs. 3,30,000/-, within a period of fifteen days from the date of receipt of the said notice. Two separate demand notices were sent to the two accused persons individually. Amongst the same one that was addressed to accused Tapati Paul/respondent no. 2, was received by one Amulya Mondol on July 28, 2005. The notice issued to the respondent no. 1 was also served upon him on July 27, 2005. Even thereafter the accused persons had not repaid the loan amount. Hence, the appellant/complainant lodged the said complaint before the Magistrate. 16. The trial proceeded. The appellant/complainant examined himself as prosecution witness No. 1. Both the accused persons were examined under Section 313 Cr.P.C, 1973. 17. Certain documents have been marked as exhibits and proved in the trial. Exhibit 1 is an acknowledgement and undertaking endorsed over a nonjudicial stamp paper. Exhibit 2 is the cheque dated June 30, 2005. Exhibit 3 is the bank endorsement regarding insufficiency of fund and dishonour of cheque. Exhibit 4 is the demand notice dated July 25, 2005. Exhibit 5 is the registration slip regarding the demand notice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant, according to the first appellate Court has constituted adverse inference against him that there existed any legally enforceable debt. Thus, the first appellate Court has opined that the accusation against the present respondents were not proved and reversed the judgment of the Magistrate, of conviction, to a judgment of acquittal. 20. Section 138 of the Negotiable Instruments Act, 1881, has provided for punishment regarding an offence of dishonour of cheque which was delivered in discharge in whole or in part of any debt or other liability and for the reasons of insufficiency etc. of the funds in the account of the drawer. The statutory presumption as enumerated under Section 139 of the said Act in favour of the holder of the cheque is that the holder has received the same in due discharge of the whole or part of any debt or other liability. 21. The Supreme Court in the case of Bir Singh Vs. Mukesh Kumar (Criminal Appeal Nos. 230-231 of 2019 decided on 06.02.2019) has held that presumption is a rule of evidence and do not conflict with the presumption of innocence which requires the prosecution to prove it beyond reasonable doubt. It has been held in a catena of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness undertaken by the present appellant and the cheque was handed over as a security in lieu of obtaining the amount. This is more so, when there is no doubt in view of exhibit 1 that the parties have agreed for paying interest over the amount, for over a considerable period of time. Therefore in my considered opinion the prosecution in this case has not been successful in discharging its initial burden that the cheque was issued by the present respondents in discharge of their legally enforceable debt towards the appellant. Having said so it becomes virtually unnecessary to mention that the presumption under Section 139 of the Negotiable Instruments Act, 1881, would have no manner of application in case of the respondents in this case, as envisaged on behalf of the appellant. Ms. Mitra has tried to impress upon the Court, the fact that the appellant would not have any money lending business and there would be no question for his client to show any licence for any such business which her client had never pursued. This Court finds that the issue really lies with the question as to whether the respondents had any legally enforceable debt repayable to the appellant or not, and no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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