Tripura High Court

Sri Sankar Das vs Sri Alak Dey on 30 June, 2021

                        HIGH COURT OF TRIPURA
                              AGARTALA
                            Crl.Rev.P.No.46 of 2018

Sri Sankar Das, S/O Late Nani Gopal Das, R/O Matabari, Udaipur, P.S-
R.K.Pur, District-Gomati Tripura
                                                   -----Petitioner(s)
                                 Versus

1. Sri Alak Dey, S/O Late Nani Gopal Dey, R/O Matabari, Udaipur, P.S-
R.K.Pur, District-Gomati Tripura
2. The State of Tripura represented by PP, High Court of Tripura, Agartala
                                                         --Respondent(s)
For the Petitioner(s)     :      Mr. H.K.Bhowmik, Adv.

For the Respondent(s)        :     Mr.S.Sarkar, Sr. Adv.
                                   Mr.S.B.Deb, Adv.
                                   Mr.A.Basak, Adv.
                                   Mr. Ratan Datta, PP.
Date of hearing              :     03.02.2021
Date of pronouncement        :     30th June,2021
Whether fit for reporting    :     No.


                                  BEFORE

        HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                                 JUDGMENT

[1] By means of filing this criminal revision petition, petitioner

Sri Sankar Das has challenged the judgment dated 04.07.2018 passed by

the Addl. Sessions Judge, Gomati Judicial District, Udaipur in Criminal

Appeal No 15(1) of 2017 setting aside the judgment and order of

conviction and sentence dated 03.02.2017 passed by the Chief Judicial

Magistrate, Gomati Judicial District, Udaipur in case No. CR(NI) 49 of

2016 convicting respondent No.1 namely Alak Dey for having

committed offence punishable under Section 138 of the Negotiable

Instruments Act, 1981 and sentencing him to RI for 1 year and a fine of

Rs.4 lakhs with default stipulation.

[2] The brief facts necessary for disposal of the petition are that

present petitioner being complainant filed a complaint under Section 138

of the Negotiable Instruments Act, 1981(NI Act, for short) in the court

of the CJM, Gomati Judicial District, Udaipur on 23.06.2016 alleging,

inter alia, that accused Alak Dey [Respondent No.1 herein] borrowed a

sum of Rs.2 Lakhs from the petitioner in cash on 10.03.2016 to

discharge his personal obligations. While borrowing the said amount of

money, the respondent had undertaken that he would return the loan

within a period of 01 month by 10.04.2016. The accused respondent also

issued a cheque bearing No.157066 dated 10.03.2016 of a sum of Rs.2

lakhs drawn on Tripura Gramin Bank branch at Udaipur against his

account No.8070012405601 in favour of the petitioner to secure the said

debt. The petitioner deposited the said cheque with his bank for crediting

the said amount to his account No.31328439774 in the SBI Garji branch.

But on 24.05.2016 it was intimated to him by his bank that the cheque

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was dishonoured by the bank due to insufficient fund in the account of

the accused respondent No.1.

[3] A demand notice was then issued by the petitioner to

respondent No.1 through his lawyer demanding payment of Rs.2 lakhs

within 15 days and such notice was sent to his known residential address

through post registered with AD. Despite receiving the notice, accused

respondent Alak Dey did not refund the money to the petitioner.

[4] A complaint was then filed by the petitioner in the court of

the CJM in Gomati Judicial District at Udaipur alleging commission of

offence punishable under Section 138 NI Act and Section 420 IPC. The

learned trial court took cognizance of offence punishable under Section

138 NI Act and summoned the accused.

[5] After the accused appeared, trial commenced with the

framing of the following charge against him:

"Accusation levelled against you Sri Alok Dey is that on 10.03.2016 for the purpose of your personal need borrowed an amount of Rs.2,00,000/- from the complainant Sri Sankar Das with a condition to return the same within 10.04.2016 you issued a cheque vide no.15706 dated 10.03.2016 for discharge of your debt and liability of Tripura Gramin Bank, Udaipur Branch vide A/C no. 8070012405601 and accordingly the complainant deposited the said cheque in his A/C no.31328439774 with the State Bank of India, Garjee Branch for encashing the same but on 24.05.2016 the State Bank of India, Garjee Branch, informed

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the complainant that the said cheque was dishonoured due to insufficient of balance in your account and on 30.05.2016 the complainant issued demand notice to him and you received the said demand notice but failed to pay the money and but failed to pay the amount and thus you have committed an offence of dishonour of cheque punishable under Section 138 of Negotiable Instrument Act and within my cognizance.

And I do hereby direct that you be tried under the said charge."

[6] In the course of trial, the following issues were formulated

by learned trial court:

(i)Whether cheque bearing No.157066 for Rs.2 Lakhs was issued by the accused on 10.03.2016 in favour of the petitioner in the discharge of his existing debt and liability.

(ii)Whether the said cheque was dishonoured by the bank due to insufficient fund in the account of the accused respondent.

(iii)Whether accused failed to repay the money despite receiving demand notice.

[7] During trial complainant petitioner Sankar Das examined

himself as PW-1. He also examined Sri Subodh Kumar Singh, Postal

Inspector of Udaipur Head Post Office as PW-2, Sri Soumik Bhaduri,

Branch Manager, Garji branch of SBI as PW-3 and Sri Pranab

Bhowmik, Branch Manager, Tripura Gramin Bank in the Udaipur

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branch as PW-4. Apart from examining the said witnesses the

complainant petitioner relied on as many as 9 exhibits.

[8] After the recording of prosecution evidence was over,

statement of the accused respondent was recorded under Section 313

Cr.P.C. In reply, accused respondent claimed that the entire prosecution

evidence appearing against him was false. In reply to question No.7

accused respondent stated that when the complainant petitioner promised

to pay money to him, he issued a blank cheque in favour of the

complainant petitioner. Accused respondent admitted that he received

demand notice from the petitioner and despite receiving such notice he

did not pay any money to the complainant petitioner. He also admitted

that the cheque book from which the cheque leaf was issued by him to

the complainant petitioner belonged to him. Accused respondent,

however, declined to adduce any evidence on his defence.

[9] Having appreciated the entire evidence, both oral and

documentary, adduced by the parties and after hearing the counsel of the

parties at length the learned trial court delivered the judgment observing

as under:

"11. Once it isproved that the cheque in question was issued by the accused or once signature in the cheque is admitted, as per Section-138 and 139 of the NI Act it also can be presumed that the said cheque was issued for

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discharging of debt or liability and burden to rebut the said presumption lies upon the accused. In this respect, the Hon'ble Supreme Court in Rangappa -vs Mohan, reported in 2010 AIR SCW 2946 where considering the earlier decision in Krishna Janardhan Bhat (supra), in para 14, it is held, "14. In the light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct." In this respect Hon'ble Supreme Court in K. Bhaskaran -

vsSankaran Vaidhyan Balan & Anr., reported in AIR 1999 SC 3762 held, "9. As the signature in the cheque is admitted to be that of the accused, the presumption 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." In this case, the accused has taken defence while his examination under Section 313 of Cr.P.C. that he has issued blank cheque on the promise of complainant to pay money but complainant failed to pay any money to him but no such fact is suggested during cross examination of the witnesses of complainant. No evidence is adduced by accused to prove such fact as pleaded while examination under Section 313 of Cr.P.C. by accused. No material is brought before the court by accused where-from it can be said that accused issued blank cheque on the promise of complainant to pay money but complainant failed to pay any money to accused. Hence, it can be said that the accused failed to discharge his burden of proof. Thus, therefore, considering all this aspect, I find, it can be said that on 10.03.2016 accused Sri Alok Dey issued the cheque vide No.157006 for Rs.2,00,000/- in discharge of his debt and liability and the said cheque was dishonoured by the bank due to insufficient fund in the account of the accused. Accordingly, Point No.(i)&(ii) are decided in affirmative and in favour of the complainant but against the accused.

12. Point No.(iii):- In this point, I have to decide whether the accused failed to pay the money on receipt of demand notice. In this respect, I find, P.W.1, the complainant deposed that on 30.05.2016 through his lawyer Mr. Kuntal

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Das he gave demand notice to accused by registered post demanding payment of the cheque amount Rs.2,00,000/- only from accused and accused received the registered notice but did not pay any amount to him. P.W.2, Sri Subodh Kr. Singh, the Postal Inspector deposed before this Court that he appeared before this Court on receipt of summons and he has produced documents relating to delivery of registered article No.RE 434887872IN, dated 31.05.2016 addressed to accused Alok Dey and the notice was delivered on 04.06.2016 and identified the letter and delivery slip which is marked as Ext.4 in two sheets. From Ext.2, the demand notice dated 30.05.2016, I find, complainant issued demand notice to accused. From Ext.3, the postal receipt dated 31.05.2016, I find, demand notice was issued to accused by complainant. From Ext.4, the delivery slip register, I find, accused received the demand notice issued by complainant. That apart, while examination under Section 313 of Cr.P.C., the accused admitted that he has received demand notice from the complainant and he has not paid any money to complainant after receipt of demand notice. Thus, considering all this aspect, I find, it can be said that the accused failed to pay the money on receipt of demand notice. Accordingly, Point No.(iii) is decided in affirmative and in favour of the complainant but against the accused.

ORDER

In the result, I hold, complainant has been able to prove the charge leveled against the accused Sri Alok Dey under Section 138 of NI Act. As such, I do hereby convict the accused under the aforesaid provisions of law.

Consideration Under Probation of Offender Act, 1958 :-

I have also heard Learned Counsel of both the sides in the matter of granting Probation and considering the nature and gravity of the offence, I am not inclined to extend any benefit to the convict of the Probation of Offenders Act as such type of incident of Cheque bounce are increasing day by day causing loss of faith of public on the cheque transaction and also causing disturbances in the smooth functioning of commercial and business transactions. So, considering all, I find no scope to release the convict on Probation.

Hearing on sentence.

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Therefore, I have heard the convict on the matter of sentence when he submits that he is a poor person and prayed for mercy before the Court.

Considering all, I sentenced the convict Sri Alok Dey to suffer RI for 01(One) year and to pay a fine of Rs.4,00,000/- (Rupees four lakh) only, in default of payment of fine he is to suffer RI for further 1(one) month under Section 138 of NI Act.

Fine money, if realized, be given to the complainant as compensation.

The convict is advised to prefer appeal.

A copy of this Judgment be given to the convict at free of cost .

Thus; the case is disposed of on contest.

Make necessary entry in the relevant trial registrar.

Consigned the record to the record room after appeal period in due compliance as per law."

[10] As noted, the learned Addl. Sessions Judge, in appeal, set

aside the judgment and order of conviction and sentence of the accused

respondent observing as under:

11. In a case U/S-138 of the N.I.Act, mere proving that the cheque in dispute got bounced is not sufficient but it must be proved that bounced cheque was returned unpaid but in this case though P.W.4 stated that cheque got bounced because of insufficiency of fund in account of the accused and was returned unpaid but the returning of cheque was not proved.

12. In a case under Section-138 of N.I. Act the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the case of prosecution cannot stand or the accused can give his version of the story and say that on the basis of his version the story of the complainant

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cannot be believed. In the first situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant.

13. It is settled position of law that the standard/degree of proof in a criminal case stands on a much higher footing than a Civil case, which means that the prosecution must prove its case beyond all reasonable doubt.

Though there is presumption U/S-139 of the N.I. Act in favour of the complainant that he received the cheque for the discharge of debt or liability but before that presumption gets attracted it must must be shown that there is a cheque which gets dishonored for want of sufficient fund and thereafter returned by the banker. But Complainant failed to prove that bounced cheque was returned by the banker to him and thus I am of the opinion that complainant failed to prove that the cheque was returned unpaid by Banker.

14. Thus in view of the aforesaid discussion I came to the conclusion that the Lerned Trial Court failed to consider the point "if the cheque in question was returned unpaid by the Banker" ad without any finding on this point, the impugned Judgment cannot be allowed to be sustained. The Learned Trial Court also unduly drew the presumption under Section-139 of the N.I. Act in Para-11 of the Judgment because before drawing such presumption there must be some material that signed cheque got dishonoured and returned by the Banker.

15. Resultantly the AppeAl is allowed and the Judgment dated 03.02.2017 passed by the Learned Chief JudiciAl Magistrate, Gomati JudiciAl District, Udaipur in Case No. CR(NI) 49 of 2016 convicting the appellant to suffer RI of one year and to pay a fine of Rs.4,00,000.00 only and in default of payment of fine further RI for one month, for commission of offence punishAble u/s 138 of NI Act. is set aside.

16. Accused be set At liberty forthwith. The bail bond is canceled and the surety be dischArged."

[11] I have heard Mr.H.K.Bhowmik, learned counsel appearing

for the petitioner as well as Mr. S.Sarkar, learned Sr. Advocate assisted

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by Mr. S.B.Deb, Adv. for the respondent No.1 and Mr.Ratan Datta,

learned PP appearing for the state respondent.

[12] It has been mainly canvassed on behalf of the petitioner that

the learned appellate court failed to appreciate the evidence as well as

the law and erroneously set aside the conviction and sentence of the

accused respondent. It is further submitted by Mr. H.K.Bhowmik,

learned counsel representing the complainant petitioner that presumption

under Section 139 NI Act read with Section 118 of the said Act with

regard to the existence of debt or liability is not a discretionary

presumption, it is a statutory presumption and a heavy burden is cast on

the accused to rebut such presumption by adducing convincing evidence.

It is contended by Mr.Bhowmik, learned counsel that such presumption

cannot be rebutted by merely offering an explanation. It can be rebutted

only by adducing evidence to the fact that he had no debt or legal

liability to be discharged towards the complainant. In support of his

contention Mr. Bhowmik, learned counsel has referred to the judgment

dated 10.02.2020 of the Apex Court in Rajeshbhai Muljibhai Patel and

Ors.etc. vs. State of Gujarat and Anr.etc.[Crl.Appeal No.251-252 of

2020] wherein the Apex Court has held that once the issuance of the

cheque is admitted/ established presumption under Section 139 NI Act

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would arise in favour of the holder of the cheque that it was issued in the

discharge of an existing debt or liability. The burden lies upon the

accused to rebut such presumption by adducing evidence. The

observation of the Apex Court in paragraph 20 of the said judgment is as

under:

"20. The High Court, in our view, erred in quashing the criminal case in C.C.No.367/2016 filed by appellant No.3- Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No.3 and respondent No.2. Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in C.C.No.367/2016 filed under Section 138 of N.I. Act"

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[13] Mr.Bhowmik, learned counsel further argued that handing

over of a cheque by way of security per se would not absolve the

accused from the discharge of liability arising from such cheque. In

support of his contention Mr.Bhowmik, learned counsel has relied on the

decision dated 11.09.2019 of the Supreme Court in M/S Womb

Laboratories Pvt Ltd vs. Vijay Ahuja and Anr. [Criminal Appeal

No1382-1383 of 2019] wherein the Apex Court held as under:

"3.The High Court mainly referred to the assertion in the complaint that the security cheques were demanded in response to which the accused had issued three signed blank cheques and stated if the amount is not returned within two years then by presenting the cheques the same may be encashed. This assertion was assumed by the High Court to mean that the cheques were given only by way of security. Having said that, the High Court proceeded to hold that the "security" offered was not for the discharge of any debt or any liability. Resultantly, it came to hold that the action under Section 138 of the Negotiable Instruments Act, 1881 cannot proceed against the accused any further.

4. We have heard counsel for the parties.

5. In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques.

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6. Suffice it to observe, the impugned judgment of the High Court cannot stand the test of judicial scrutiny. The same is, therefore, set aside."

[14] Further submission on behalf of the complainant petitioner

is that in view of the amended provision of Section 146 of the NI Act,

bank's slip is the prima facie evidence of certain facts. According to

Mr.Bhowmik, learned counsel of the petitioner, when a bank slip or

memo having thereon the official mark denotes that the cheque has been

dishonoured, the court shall presume the facts of dishonour of such

cheque unless and until such fact is disproved. According to the counsel

of the complainant petitioner in the present context, the bank slip

denoting the dishonour of the cheque has been produced by the

complainant and the respondent could not disprove the fact. Therefore, a

presumption has to be drawn against the accused respondent that a

cheque was dishonoured for insufficiency of fund in his account. In this

regard learned counsel has relied on the decision of this high court in

Utpal Majumder Vs. Farid Miah and Anr. reported in (2020) 2 TLR

380 wherein this court in paragraph 16 of the judgment has held as

under:

"16. Thus, it is no more res integra that the provisions of Section 146 of the N.I. Act unambiguously and expressly override the principles of the Indian Evidence Act and making such a major departure from the application of the Evidence Act provides that the bank slip or memo with the

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official mark showing that the cheque was dishonoured would by itself give rise to the presumption of the dishonour of the cheque, unless and until the contrary to the said fact was disproved. In view of insertion of Section 146 in the N.I. Act, Section 67 of the Evidence Act as relied upon by the learned Trial Judge has no manner of application to prove or disprove the document relating to bank note/slip/return memo. Furthermore, Section 143 of the N.I. Act fortifies the complaint under Section 138 of the N.I. Act to be tried in summary manner. Having held so, the findings that the contents of the bank notes were not proved in accordance with Section 67 of the Evidence Act and thus bad in law, has no force in the eye of law and contrary to Section 146 of the N.I. Act. As such, unhesitently, I set aside the said findings of the learned Chief Judicial Magistrate in his judgment dated 11.09.2018 while dismissing the compliant of the petitioner. [emphasis supplied]"

[15] Mr.S.Sarkar, learned Sr.Advocate appearing fort the

accused respondent on the other hand argued that the learned appellate

court after complete re-appreciation and reconsideration of the entire

evidence viewed that the case was not proved against the accused

respondent and by a detailed judgment set aside his conviction and

sentence. It was contended by Mr.Sarkar, learned Sr.Advocate that it is a

settled proposition of law that where 2 views are possible, the view

favourable to the accused has to be taken by the court. In support of his

contention, Mr.Sarkar, learned Sr.Advocate has relied on the decision of

the Apex Court in Chandrappa and Ors.Vs. State of Karnataka

reported in (2007) 4 SCC 415 wherein the Apex Court has held as under:

"44. In our view, if in the light of above circumstances, the trial Court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion

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that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside."

According to learned senior counsel, there is no illegality in

the impugned judgment and as such the said judgment does not call for

any interference in this criminal revision petition.

[16] As noted, 4 witnesses have been examined on behalf of the

prosecution and 9 documents have been introduced and exhibited to

establish the charge against the accused petitioner. Counsels, appearing

for the parties have placed arguments and counter arguments and in the

course of hearing they have taken us to the evidence on record. Among

the PWs, PW-1 Sankar Das who lodged the complaint against the

accused stated in his examination-in-chief on affidavit that the accused

who had a friendly relationship with him used to borrow money from

him to meet his personal needs and also used to return such money in

usual course. On 10.03.2016 he borrowed a sum of Rs.2,00,000/- from

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the PW assuring that he would return the money within 10.04.2016.

Accused also issued cheque No. 157066 dated 10.03.2016 for the said

amount of rupees two lakhs in favour of the complainant drawn on

Tripura Gramin Bnak at Udaipur branch as a security to the existing

debts. Complainant presented the said cheque in the SBI, Garjee branch

for crediting the said amount in his account no.31328439774 after

encashment which was dishonoured by bank due to insufficient balance

in the account of the accused. The same was informed to the

complainant by his bank on 24.05.2016. Complainant then issued

statutory demand notice to the accused on 30.05.2016 demanding a sum

of rupees two lakhs with interest. Despite receiving the notice accused

did not turn up to repay the loan to the complainant. Eventually the

complainant lodged the complaint under Section 138 NI Act in the court

of the Chief Judicial Magistrate at Udaipur.

[17] He was cross examined by the counsel of the accused at

length. He stated in the cross examination that he could not produce the

impugned cheque along with his complaint. He also stated that he was

unable to produce the cheque. In reply to a suggestion made by the

counsel of the accused, complainant stated that it was not a fact that he

was unable to produce the cheque because no such cheque was issued at

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all by the accused. He also denied the suggestion of the accused that due

to his enmity with the accused he lodged a false case against him.

[18] PW-2 is a Postal Inspector of Udaipur Head Post Office

who turned to testify in court on 17.12.2016. The PW stated that the

registered article no.RE434887872IN dated 31.05.2016 was delivered to

the accused on 04.06.2016. He identified the delivery slips which were

exhibited and marked as Exhibit-4. The article contained the statutory

demand notice issued by the complainant to the accused.

In his cross-examination he denied the suggestion of the

accused that no post man of his post office delivered any demand notice

to accused Alak Dey.

[19] PW-3, Soumik Bhadury was the Branch Manager, Garjee

branch of SBI on the material date. According to the PW, cheque

bearing no.157066 dated 10.03.2016 was deposited at SBI in its Garjee

branch on 12.04.2016. Since the cheque was drawn on Tripura Gramin

Bank, the same was sent to Tripura Gramin Bank, Garjee branch for

collection. But the same was returned without collection. According to

the PW, subsequently the cheque along with its return memo was found

missing from the bank which was reported to police by some Amul

Lakra, the then branch manager of SBI, Garjee branch and on the basis

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of his information an entry was made in the General Diary (GD) of

R.K.Pur police station. The PW identified the GD entry which was

marked as Exhibit 6 on his identification. The Branch Manager, SBI,

Garjee branch also informed the entire facts to the branch manager,

Tripura Gramin Bank by a letter dated 20.05.2016[Exbt.7] wherein he

stated as follows:

                          "State Bank of India                             State Bank of India
                                                                    Garjee Branch (CODE NO-9129)
                                                                 Matabari, Udaipur, Tripura-799013
                          BM/GB/2016-2017/026                                Date:20/05/2016

                          The Branch Manager,
                          Tripura Gramin Bank
                          Udaipur Branch
                          Central Road, Udaipur
                          Gomati, Tripura
                          Dear Sir,
                          CONFIRMATION REGARDING PAYMENT OF CHEQUE
                          CUSTOMER NAME: ALOK DAY(M:8014898147)
                          ACCOUNT NO. 8070012405601
                          CHEQUE NO.157066 DT.10/03/2016
                          AMT.Rs.200000/-

With reference to the above we would like a piece of information, the branch has received cheque from one of our valued customer namely Sri Sankar Das(A/c no.31328439774) for collection of in his behalf.

2. The cheque was returned by your bank due to insufficient balance in the account of Sri Alok Dey. During the course of return, the cheque is misplaced from banks custody and yet to be traced.

3. We need your help in this regard kindly confirm that no such cheque is paid by your end and kindly mark stop payment of above mentioned cheque.

This is for your kind information please...."

[20] By a subsequent letter dated 24.05.2016 the branch

manager, SBI of its Garjee branch informed the complainant that the

impugned cheque received from him was sent to Tripura Gramin Bank

for collection. But the said cheque was returned from bank for

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insufficient balance in the account of accused Alak Dey. It was also

informed by the Branch Manager, SBI that during the course of return,

the cheque was misplaced from the custody of the bank which was

reported to police. The complainant was also asked to collect a fresh

cheque from the accused after confirming his balance. The said letter

which is marked as Exhibit-1 reads as follows:

                          "State Bank of India                              State Bank of India
                                                                        Garjee Branch (CODE NO-9129)
                                                                       Matabari, Udaipur, Tripura-799013
                          BM/GB/2016-2017/030                                    Date: 24/05/2016
                          Mr.Sankar Das
                          Matabari, PO Matabari
                          Gomati, Tripura

                          Dear Sir,
                          CONFIRMATION REGARDING PAYMENT OF CHEQUE
                          CUSTOMER NAME: ALOK DAY(M:8014898147)
                          ACCOUNT NO. 8070012405601
                          CHEQUE NO.157066 DT.10/03/2016
                          AMT.Rs.200000/-

With reference to the above we would like a piece of information, the branch has received cheque from you bearing A/c No. 31328439774 for collection of on your behalf.

2. The cheque was returned by your bank due to insufficient balance in the account of Sri Alok Dey. During the course of return, the cheque is misplaced from banks custody and yet to be traced.

3.We have lodged a FIR and inform the Tripura Gramin Bank, Udaipur Branch for not paying the cheque in future.

4.So we request you to collect a fresh cheque from the customer after confirming his balance. Sorry for your inconvenience.

This is for your kind information and necessary action please..."

In his cross-examination, the PW denied the suggestion of

the accused that the cheque was not received by them and it was not sent

to Tripura Gramin Bank for collection.

Crl.Rev.P No.46 of 2018

[21] PW-4, the Branch Manager of Tripura Gramin Bank of

Udaipur branch confirmed in his cross-examination that a cheque book

containing cheque no.157051 to 157075 was issued from the Tripura

Gramin Bank to the accused who had an account in their bank vide

account no.8070012405601. On 21.4.2016 Tripura Gramin Bank

received a cheque bearing no 157066 from SBI, for clearing. The said

cheque was issued by the accused in favour of the complainant drawn on

Tripura Gramin Bank where the accused had the aforesaid account. On

scrutiny, the PW found that fund in the account of the accused was

insufficient for clearing the cheque. They also made an entry in the

relevant register in this regard wherein it was recorded that the said

cheque was bounced due to insufficient fund in the account of the

accused. The PW produced the said register before the court which was

marked as Exbt.8 and the relevant entry was marked as Exbt.8(i). After

the cheque was dishonoured, the PW returned the said cheque along with

the cheque return memo to SBI denoting the fact that cheque was being

returned due to insufficient fund in the account of the accused.

Subsequently they received the letter from the SBI, Garjee branch

whereby it was informed that the cheque was missing and the Branch

Manager, Tripura Gramin Bank was requested not to make any payment

in case the missing cheque is presented to the bank.

Crl.Rev.P No.46 of 2018

In his cross-examination, the PW denied the suggestion of

the accused that no cheque book was issued in favour of the accused

from Tripura Gramin Bank and the accused did not issue the impugned

cheque. The PW also denied the suggestion of the accused that he gave a

mechanical statement without verification of documents.

[22] From the evidence discussed herein above, it would emerge

that the impugned cheque for a sum of Rs.2,00,000/- was issued by the

accused in favour of the complainant which was presented by the

complainant to his banker i.e. SBI for encashment and crediting the

same in his account. The said cheque was sent to Tripura Gramin Bank

from SBI for collection. But the cheque was bounced from the Tripura

Gramin Bank on which it was drawn for insufficiency of fund in the

account of the accused. It also stands proved that the complainant issued

statutory demand notice to the accused which was received by him and

despite receipt of the notice, the accused did not pay the loan of the said

amount of Rs.2,00,000/- to the complainant. Eventually the complainant

lodged the complaint in the court of the CJM at Udaipur.

[23] It is true that the complainant could not produce the

impugned cheque at the trial. But his failure in presenting the cheque

before the court does not affect his case because the Branch Manager of

SBI at Udaipur branch had categorically stated in his evidence that the

Crl.Rev.P No.46 of 2018

said cheque was missing from the custody of the bank which was also

reported to the jurisdictional police station and the information was

recorded in the General Diary of the police station. The accused could

not impeach the evidence of the PW in this regard and there is no reason

to doubt the statement of the Branch Manager, SBI [PW-3].

[24] Exhibit-1 as well as Exhibit-7 containing official seal of

SBI, Garjee branch clearly denotes that the impugned cheque bearing

no.157066 dated 10.03.2016 of an amount of Rs.2,00,000/- issued by

the accused against his account No.8070012405601 in Tripura Gramin

Bank was dishonoured by Tripura Gramin Bank and the same was

returned to SBI for insufficiency of fund in the said account of the

accused. The Branch Manager, Tripura Gramin Bank of Udaipur

branch[PW-4] also confirmed this fact. The accused could not rebut such

evidence.

[25] As stated by this court in the case of Utpal Majumder

(supra) relied on by the learned counsel of the complainant, such memo

with the official mark showing that the cheque was dishonoured would

by itself give rise to the presumption of the dishonour of cheque in terms

of Section 146 NI Act unless and until the contrary to the said fact is

proved. Thus it stands established that the impugned cheque issued by

the accused in favour of the complainant was dishonoured by bank for

Crl.Rev.P No.46 of 2018

insufficiency of fund in his account. Accused in the case has taken a

very inconsistent defence. In the cross-examination of the witnesses, he

tried to project that no cheque was issued by him. But in the course of

his examination under Section 313 Cr.P.C., he did not deny the issuance

of cheque. According to him, complainant promised to pay money to

him for which he issued a blank cheque in his favour. But ultimately no

money was paid by the complainant to him.

[26] In view of the facts and circumstances of the case and the

materials available on record plea of the accused is not at all probable.

The complainant on the other hand has been able to prove the essential

facts by adducing consistent evidence. The complainant proved that

accused borrowed a sum of Rs.2 lakhs form him and to discharge his

debts, he issued the impugned cheque to the complainant which was

dishonoured by the bank.

[27] In Hiten P. Dalal vs. Bratindranath Bannerjee reported in

(2001) 6 SCC 16, the Apex Court has succinctly held that the

presumptions to be drawn by court under Sections 138 and 139 NI Act

are presumptions of law which cast evidentiary burden on the accused to

disprove the presumptions. Relevant passages of the judgment are as

under:

Crl.Rev.P No.46 of 2018

"21. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides that :

"139. 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.

"The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.

22. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid at p 65, para 14). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact.

23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, Crl. Rev.P.79 of 2017 "after considering the matters before I the Court either believes it to exist, or considers its existence so

Crl.Rev.P No.46 of 2018

probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists".

Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'."

[28] Similarly, in the case of Mallavarapu Kasivisweswara Rao

vs. Thavikonda Ramulu Firm and Ors. reported in (2008) 7 SCC 655, it

has been held by the Apex Court that it is a settled position that the

initial burden lies on the accused to prove the non existence of

consideration. The relevant passage from the judgment may be gainfully

reproduced which is as under:

"17. Under Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal....."

[29] In the instant case, apparently the accused petitioner did not

lead any evidence in rebuttal of such statutory presumptions. He has also

failed to bring on record such facts and circumstances which would lead

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the courts below to believe that the liability, attributed to the accused

petitioner was improbable or doubtful.

[30] In the case of Kishan Rao vs. Shankargouda reported in

(2018) 8 SCC 165, the Apex Court has succinctly held that mere denial

of existence of debt shall not serve any purpose in a proceeding under

Section 138, NI Act. Something which is provable has to be brought on

record for getting the burden of proof shifted to the complainant.

Observation of the Apex Court in this regard in paragraph 20 of the said

judgment is as under:

"20. This Court held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. The following was held in paragraph 20 [Kumar Exports vs. Sharma Carpets (2009) 2 SCC 513] :

"20....The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that

Crl.Rev.P No.46 of 2018

a prudent man would under the circumstances of the case, act upon the plea that they did not exist..."

[31] After scrutinizing the entire transaction, it would surface

that there is no reason to disbelieve the case of the complainant. The

explanation offered by the accused petitioner on the other hand is not

founded on proof and it does not stand to reason.

[32] For the foregoing reasons, this court is of the considered

view that the impugned judgment passed by the learned Addl. Sessions

Judge, Udaipur, Gomati Judicial District in Crl. Appeal. No.15(1) of

2017 setting aside the judgment of the trial court deserves interference.

In consequence, the impugned judgment is set aside and judgment

and order of the trial court convicting the accused petitioner for

having committed offence punishable under Section 138 NI Act is

restored. In so far as his sentence is concerned, sentence awarded by the

trial court needs modification. Sentence is reduced to fine of

Rs.2,25,000/-(Two lakhs twenty-five thousand) only and in default to SI

for 2 months. Accused petitioner is directed to deposit a fine of

Rs.2,25,000/- in the court of the CJM at Udaipur within a period of 2