Nitul Kalita vs Dr. Hiren Gogoi And Anr
2021 Latest Caselaw 1289 Gua

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GAHC010006022010




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Crl.A./91/2010

            NITUL KALITA,
            S/O SHRI BHUBAN CH. KALITA, R/O SRIPURIA, P.O. SRIPURIA, DIST.
            TINSUKIA, ASSAM.



            VERSUS


            DR. HIREN GOGOI and ANR,
            S/O LATE KESHAB CH. GOGOI, R/O JIBAN PHUKAN NAGAR, CR BUILDING,
            DIBRUGARH, ASSAM.

            2:THE STATE OF ASSAM

             REPRESENTED BY THE PUBLIC PROSECUTOR

Advocate for the Petitioner   :

Advocate for the Respondent : MR.A BORGOHAIN

BEFORE Hon'ble MR. JUSTICE AJIT BORTHAKUR Judgment & Order

01.04.2021

Heard Mr. S. Banik, learned counsel for the appellant. Also heard Mr. P. Bora, learned counsel for the respondent No.1 and Mr. B.B. Gogoi, learned Additional Public Prosecutor, Page No.# 2/6

Assam for the respondent No.2.

2. This appeal under Section 378(4) of the Criminal Procedure Code, 1973 ('Cr.P.C.' for short) is preferred against the judgment and order, dated 06.04.2010, passed by the learned Chief Judicial Magistrate ('C.J.M.' for short), Tinsukia in C.R. Case No. 1581/2006 dismissing the complaint and acquitting the accused/ respondent No.1 herein under Section 138 of the Negotiable Instrument Act, ('N.I. Act' for Short).

3. Leave granted vide order, dated 06.08.2010, passed in Crl. Leave Petn. No. 22/2010.

4. The complainant / appellant's case, precisely, is that he lodged a complaint with the court of Learned C.J.M., Tinsukia, on 01.08.2006, alleging interalia, that he was engaged by accused Dr. Hiren Gogoi for a musical show at Dibrugarh. Accordingly, he had agreed for the said work and made all arrangements for organizing the show. As per the terms of the said agreement, towards discharge of liability of making part payment of the works the accused issued a State Bank of India Account Payee Cheque bearing No.216867 dated 25.04.2006 in his name for an amount of Rs.1,15,000/-. While the complainant presented the cheque on 11.05.2006 in his account No.01190013311 for collection through U.B.I., Tinsukia Branch, the Bank returned the cheque without honouring with an endorsement showing reasons of "Payment stopped by the drawer" and "insufficient of fund" in the account of the accused. So, the complainant issued a demand notice dated 14.06.2006 through Advocate Bhaskar Dutta notifying the accused to make payment of the said amount within 15 days from the date of receipt of the notice. The notice was duly served upon the accused on 17.06.2006, but inspite of receipt of the notice the accused had failed to make payment within the stipulated period. The accused sent his reply denying his liability and asked the complainant to return the said cheque to the accused. The complainant/ appellant contends thatas the accused/ respondent No.1 issued the cheque, which was dishonoured, he committed an offence under Section 138 of the N.I. Act.

5. After receipt of the said complaint and going through the statement of the complainant on affidavit and the relevant documents, the learned trial court took cognizance of the offence under Section 138 N.I. Act. On appearance ofthe accused the offence under Section 138 N.I. Act was explained to him to which he pleaded not guilty and claimed to be tried. The Page No.# 3/6

complainant examined as many as three witnesses whereas the defence examined two witnesses in defence. The defence plea is that he had no liability to pay any amount to the complainant. He issued the cheque on force and threat of the complainant/ appellant herein.

6. In order to decide the case, the Learned Trial Court took up the following 5(Five) points-

1) Whether the accused had any lawful debt or liability for payment of any amount of money to the complainant?

2) Whether the accused issued any cheque to the complainant to discharge his lawful liability or debt?

       3)     Whether the accused is liable for dishonour of cheque?

       4)     Whether the accused committed any offence under N.I. Act?

       5)     Whether the complainant is entitled for any compensation from the accused?

7. After threadbare analysis of evidence adduced by both sides, the Learned Trial Court held the accused/ respondent No.1 not guilty of the offence and accordingly acquitted him by the impugned judgment and order.

8. I have given due consideration to the submissions made by both sides and perused record including the impugned judgment and order.

9. It needs to be mentioned that Section 138 of the N.I. Act has three ingredients, viz.:

(i) that there was a legally enforceable debt; (ii) that the cheque was drawn from the account of the drawer for discharge, in whole or in part, of any debt or other liability, which presupposes a legally enforceable debt, and (iii) that the cheque so issued had been returned due to insufficient of funds etc.

10. A perusal of the pleadings and evidence of both sides, it is apparent that the cheque vide Ext.1 was admittedly drawn by D.W.1, the accused/ respondent No.1 for payment of an amount of Rs.1,15,000/-, which was returned dishonoured by the Union Bank of India, (U.B.I.) Tinsukia Branch to the complainant/ appellant vide Ext.2, the letter and Ext.3, the bank note.

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11. The next pertinent question is whether the cheque vide Ext.1 was issued in discharge of a debt/ liability of the accused/ respondent No.1? The debt or liability must be existing between the drawer and the payee while the cheque was issued. According to P.W.1, the complainant/ appellant, the accused/ respondent No.1, who was the President of an N.G.O. namely, 'Digboloy' at Dibrugarh, engaged him, who is a businessman, for an event management of a musical show on 25.04.2006, evening. He made all the arrangements and accordingly, towards part payment of the liability, the said A/C payee cheque vide Ext.1 dated 25.04.2006 was issued in his favour, which he presented to the Union bank of India, Tinsukia against his A/C No.01190013311, on 11.05.2006, but the same was dishonoured with an endorsement, dated 17.05.2006, being payment stopped by the Drawer and 'Insufficient of fund' vide Ext.2, the letter, dated 03.06.2006 of Union Bank of India, Tinsukia Branch and Ext.3, the Memo of State Bank of India, Dibrugarh Branch, dated 17.05.2006 respectively. Therefore, the complainant notified the accused to make payment of the said cheque amount within 15 days from the date of receipt of the notice vide Ext.4, the legal notice, dated 14.06.2006; Ext.4(2) the postal registration receipt thereof and Ext.4(3) the acknowledgment receipt. However, by Ext.5, the reply, dated 12.07.2006, the accused/ respondent No.1 denied any liability and instead asked the complainant/ appellant to return the said cheque. It is noticed that in cross-examination, he admitted that 'At the time of delivery of the cheque, the name of the payee was not written. It was written by me.' It is further noticed that he denied the defence suggestion that he received Rs.5,51,000/- on 10.04.2006, as per conditions of the agreement, the copy of which was, of course, not exhibited in the case.

12. On perusal of the evidence of P.W.2, Pallav Hazarika, the Organizing and Publicity Secretary of the N.G.O. namely, 'Digboloy', it is revealed that the event was organized on 25.04.2006 evening vide Ext.6, the Member card,but could not be held as per agreement due to technical snags/ impairment of the generator set and the sound system and as a result, even the audience got annoyed. The evidence of P.W.3 Vikash Goenka shows that he was a business partner of the complainant/ appellant and he asked the accused/ respondent No.1 not to fill up the name of the payee in the cheque, because he was not sure whether the said cheque was to be encashed through his account or through the account of the complainant and accordingly, the payee's name in the cheque was kept blank. He recognized Ext.7, the Page No.# 5/6

letter, dated 24.04.2006, issued by the Secretary, 'Digboloy', whereby, the said N.G.O. "agreed to pay the remaining amount of Rs.1,15,000.00 (Rupees one lakh and fifteen thousand only)

to M/S Progoti Enterprise, Mumbai on 25th April'06 by 5 P.M. positively".

13. Coming to the evidence of D.W.1, the accused/ respondent No.1, it appears that the complainant/ appellant introducing himself as the authorized signatory of Progoti Entertainment, entered into an agreement with the N.G.O namely 'Dogboloy' to perform the said event for an amount of Rs.5,51,000/- plus service @ 10.2% which came to Rs.51,000/- by taking an advance amount of Rs.2,50,000/- with conditions to pay the balance amount of Rs.3,01,000/- on or before 10.04.2006 and in the event the show was cancelled by the artists, the amount received by him was to be refunded in full.

14. However, according to him on 24.04.2006, the complainant induced the Committee of Digboloy to pay an additional amount of Rs.1,15,000/- subject to adjustment in final payment after the show was performed. Therefore, the cheque was issued against the accused's personal account on bonafide belief without the payee's name with consent of the complainant that the same would be filled up by him (accused) after show was performed. However, the show was not performed, D.W.2 Nibaran Gohain Phukan, the Secretary of 'Digboloy' corroborated the evidence of P.W.1.

15. It is needless to point out that under Section 139 of the N.I. Act, there is a presumption that the holder of the cheque received it for the discharge of debt or liability, but the existence of debt is not the subject-matter of such legal presumption. Therefore, the payee of the cheque has to prove the existence of the debt on the date of its issue and as such, it is a question of fact to draw the said presumption under Section 139.To speak it differently, Section 139 of the N.I. Act provides that it shall be presumed, unless the contrary is proved, that the holder of the cheque received the cheque for the discharge, in whole or in part, of any debt or other liability.

16. In the instant case, as stated earlier, there is no denying the fact that admittedly the accused/ respondent No.1 issued the cheque without the name of the payee, which the complainant/ appellant (payee) himself filled up and presented in bank for encashment. The evidence shows that the cheque amount was payable in terms of a written contingent Page No.# 6/6

agreement, copy of which is, of course, not exhibited, in the event of performance of the function by the artists through Progoti Enterprise, Mumbai, which enterprise was not even impleaded as accused/ respondent or its representative examined by either of the parties in the case. The complainant has not event established that he was the authorized signatory of the said enterprise to receive the cheque on its behalf and that the accused/ respondent No.1, being the President of the said unregistered N.G.O namely, 'Digboloy' was personally liable under any debt or liability towards the complainant/ appellant on the date of issue of the cheque in question wherein he himself admittedly entered his name in different ink. Therefore, in the backdrop of facts and circumstances, that emerge on reappraisal of evidence, oral and documentary, this Court sees no reason to reverse the finding of acquittal of the accused/ respondent No.1 of the offence subscribing substituted views expressed by the Learned Trial Court.

17. Accordingly, the appeal being devoid of merits, the same stands dismissed.

18. Send back the LCR.

19. Appeal stands disposed of.

JUDGE

Comparing Assistant