Tripura High Court

High Court Of Tripura vs Sri Joydeb Dey on 12 May, 2021

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                          HIGH COURT OF TRIPURA
                                AGARTALA
                            Crl. Rev. P No.46/2017
Sri Kanu Chandra Das,
Son of Sri Jagadish Chandra Das of
Vill-Chandrapur Colony No.7, Udaipur,
P.S-R.K. Pur, Dist-Gomati Tripura.
                                                     ............... Petitioner(s).

                                        Versus

1.    Sri Joydeb Dey,
Son of late Sunil Ch. Dey of
Fulkumari No.1, Udaipura, P.S-R. K. Pur,
District : Gomati Tripura.
2.   THE STATE OF TRIPURA
Represented by PP, High Court of Tripura, Agartala
                                                    ............... Respondent(s).

BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY

For Petitioner(s) : Mr. A. Acharjee, Advocate. For Respondent(s) : Mr. S. Ghosh, Addl. Public Prosecutor.

Mr. Samar Das, Advocate.

       Date of hearing              :    3rd February, 2021.

       Date of Judgment & Order :        12th May, 2021.

       Whether fit for reporting    :    NO.


                            JUDGMENT AND ORDER

[1]            The instant criminal revision petition filed under Section

397/401 of the Code of Criminal Procedure, is directed against the

judgment, dated 21.06.2017 delivered by the Additional Sessions Judge,

Gomati Judicial District, Udaipur in Criminal Appeal No.62(04) of 2016,

affirming the judgment of conviction and order of sentence dated

22.11.2016 passed by the Chief Judicial Magistrate, Gomati Judicial

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District, Udaipur in case No.CR (NI) 13 of 2015, whereby learned trial

Court while holding the petitioner guilty of having committed offence

punishable under Section 138 of the Negotiable Instruments Act, 1881

(N.I Act hereunder) convicted and sentenced him to undergo rigorous

imprisonment for a period of one year and pay fine to the tune of

Rs.2,00,000/- only with default stipulation.

[2] Precisely, the facts as emerging from the record are that

respondent No.1 (hereinafter referred to as the complainant) filed a

complaint under Section 138, NI Act in the Court of the Chief Judicial

Magistrate, Gomati Judicial District at Udaipur, alleging therein that he

had lent a sum of Rs.1,00,000/-(rupees one lakh) to the petitioner

(hereinafter referred to as the accused) on his request. The entire sum of

money was paid to the accused in cash. Accused with a view to discharge

his aforesaid liability, issued cheque bearing No.779314 dated

05.03.2015 drawn on United Bank of India, Udaipur Branch in favour of

the complainant. The fact remains that on presentation, the aforesaid

cheque was dishonoured on account of insufficient fund in the account of

the accused. Despite having statutory demand notice, accused failed to

repay the said loan within the statutory period. The complainant,

therefore, initiated proceedings against him under Section 138, N.I Act,

1881 by means of filing the instant complaint in the Court of the Chief

Judicial Magistrate at Udaipur in Gomati Judicial District.

[3] On the facts of the case trial Court took cognizance of offence

and proceeded with the trial. At the commencement of trial, charge was

framed against the accused to which accused pleaded not guilty. In the Crl. Rev. P No.46/2017.

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course of trial, complainant examined himself as PW-1, his neighbor

Monoj Kr. Roy as PW-2 and his friend Tapan Das as PW-3. All the PWs

were cross examined by the counsel of the accused. Apart from adducing

the ocular evidence of the PWs, complainant also relied on seven exhibits

which are Exbt.1 to Exbt.7. At the conclusion of prosecution evidence,

trial Court examined the accused under Section 313 Cr.P.C who pleaded

innocence and stated that he had already repaid the loan. No defence

witness was adduced by the accused.

[4] The learned trial Court on the basis of the evidence adduced

on record by the respective parties, held the accused guilty of having

committed offence punishable under Section 138, N.I. Act, 1881 vide

judgment dated 22.11.2016 and accordingly convicted and sentenced him

to R.I for one year and fine of Rs.2 lakhs with default stipulation and it

was ordered that fine on realization be paid to the complainant as

compensation.

[5] Feeling aggrieved and dissatisfied with the aforesaid

judgment and order of conviction sentence, returned by the trial Court,

accused preferred appeal in the court of the Additional Judge, Gomati

Judicial District at Udaipur which also came to be dismissed vide

judgment dated 21.06.2017, as a result of which, judgment of conviction

and sentence returned by the trial Court was affirmed. In the aforesaid

background, accused has approached this court by means of filing the

instant criminal revision petition, praying therein, for his acquittal after

quashing and setting aside the impugned judgment passed by the courts

below.

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[6] During pendency of the petition, counsel representing the

parties stated that negotiation for settlement of the dispute was in

progress between the parties but ultimately they could not arrive at any

settlement. Therefore, the matter has been heard on merit.

[7] In the course of hearing, counsel appearing for the petitioner

argued that complainant failed to prove any existing debt liability against

the accused and also failed to prove that the impugned cheque was issued

to discharge such liability and the court below held the petitioner guilty

without considering these facts. It was also argued by learned counsel

that the trial court did not verify as to whether the hand writing

appearing on the said cheque was of the accused. Further argument which

was placed on behalf of the accused is that the learned trial court based

the conviction of the accused on his statement made during his

examination under Section 313 Cr. PC which was incorrect. Finally, it was

argued by the counsel of the accused that the trial Court did not assign

any reason as to why double the amount of cheque was imposed as fine

on the accused. On the premises aforesaid, counsel of the accused urges

the Court for setting aside his conviction and sentence.

[8] Counsel appearing for the complainant on the other hand

argued that the detailed judgments given by the courts below were based

on sound evidence and more over the accused nowhere stated that he did

not issue the impugned cheque to the complainant. Therefore, the

concurrent findings of the courts below did not call for any interference.

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Accordingly, counsel of the complainant has urged for dismissal of the

criminal revision petition.

[9] Counsel of the parties have taken this Court to the evidence

recorded at the trial. Complainant PW-1 in his examination in chief had

categorically stated that accused borrowed a sum of Rs.1,00,000/- from

him as loan on 8.4.2014 in presence of PWs 2 and 3 and acknowledged

the receipt of the loan by issuing money receipt (Exbt.1). He delayed in

repayment of the loan. Later, on the insistence of the complainant he

issued the impugned cheque bearing No.779314 dated 5.3.2015 (Exbt.2)

drawn on UBI, Udaipur Branch. On the same day said cheque was

presented by the complainant before United Bank of India, Udaipur

Branch for encashment where he maintained his account

No.0462010188401. The complainant exhibited the deposit slip (Exbt.3)

whereby he presented the cheque to the said bank for encashment. The

cheque was returned from the bank vide return memo dated 5.3.2015

(Exbt.4) due to insufficient fund in account No.04620010142417 of the

accused. Complainant PW-1 stated that he then issued demand notice to

the accused for repayment of the loan vide notice dated 12.03.2015

(Exbt.5) He submitted the postal receipt of the said notice (Exbt.6). The

notice was sent through post registered with A/D. The A/D card dated

19.3.2015 (Exbt.7/1) was also produced by the complainant.

In cross examination counsel of the accused suggested to the

complainant PW-1 that accused did not take any loan from the

complainant in presence of PWs-2 and 3 and Bapi Debnath. It was also

suggested to him that statements made by him in paragraph 5,6,7,8,9,10

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and 11 in his complaint were all false and the documents produced by

him in support of his case were also false. All these suggestions were

denied by the complainant.

[10] PW-2, Manoj Kr. Roy in whose presence the complainant paid

the loan identified his signature on the money receipt (Exbt.1) which was

executed at the time of paying the loan to the accused. In his cross

examination, counsel of the accused suggested to the witness that the

money receipt was not executed in his presence and the statements

made by him in paragraph-1,2,3,4 and 5 of his examination in chief on

affidavit were all false. The PW denied these suggestions.

[11] Similarly, PW-3 also supported the case of the complainant

that the loan was paid by the complainant to the accused in his presence

and he also identified his signature on the money receipt (Exbt.1)

whereby accused received the payment of the said loan of Rs.1,00,000/-

from the complainant. In cross examination, witnesses denied the

suggestion of the accused that no money receipt was signed by the

accused in his presence and he also denied that statements made by him

in his examination in chief were not true.

[12] As discussed, on appreciation of the said evidence adduced by

the complainant, trial Court convicted and sentenced the accused which

was also upheld by the Additional Sessions Judge, Udaipur in appeal.

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[13] Considered the submissions made by learned counsel of the

parties and the materials placed on record. The basic ingredients of

Section 138, N.I Act, 1881 are as under:

(i) there must be legally enforceable debt.

(ii) the disputed cheque was drawn for discharging the whole

and/or part such debt or other liability.

and

(iii) the cheque has been returned due to insufficiency of

fund.

[14] In the present context, there is no specific denial on the part

of the accused that no loan was taken by him from the complainant.

Rather he made a categorical statement during his examination under

Section 313 Cr. P.C that he has repaid the loan taken by him from the

complainant. The complainant has also successfully discharged his burden

by producing the money receipt dated 8.4.2014 (Exbt-1) whereby the

accused acknowledged the receipt of a sum of Rs.1,00,000/- in cash from

the complainant assuring the repayment within January, 2015. PWs. 2

and 3 who were present at the time of transaction of the said sum of

money confirmed that in their presence the money was paid by the

complainant to the petitioner and the petitioner acknowledged the receipt

of the same by executing (Exbt.1) in which the PWs signed as witnesses.

Accused never denied or disputed his signature on the said document

(Exbt.1). The fact that the impugned cheque (Exbt.2) drawn on the

United Bank of India was issued by the accused to the complainant in the

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discharge of his said liability also stands proved beyond doubt. By

producing the return memo (Exbt.4) the complainant has proved that the

disputed cheque which was presented by him to the bank on which it was

drawn and the same was dishonoured for insufficiency of fund. The

complainant also served statutory demand notice (Exbt.5) to the accused

which was received by his wife. Despite receipt of the notice, the

petitioner did not repay the loan to the complainant. The complainant

therefore, prosecuted him under Section 138, N.I. Act, 1881.

[15] Section 139, N.I. Act, 1881 provides that there would be legal

presumption in favour of the holder of the cheque that such cheque was

issued for discharging an existing debt or other liability. However, such

presumption is rebuttable by the drawer of the cheque. The Supreme

Court has held that standard of proof to rebut the presumption under

Section 139, N.I. Act, 1881 is that of "preponderance of probability". It

has been held by the Apex Court in Rangappa Vrs. Sri Mohan; reported

in (2010) 11 SCC 441 that if the accused is able to raise a probable

defence which creates doubt about the legally enforceable debt, the

accused is said to have succeeded in his defence. Observation of the Apex

Court in this regard is as under:

"28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'.

Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the

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complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."

[16] Coming back to the present case, the petitioner in this case,

did not raise any probable defence which would create doubts in the mind

of the Court. He did not deny the fact that he had taken loan from the

complainant. His defence as made out in his examination under Section

313 Cr. P.C is that he has repaid the loan. The issuance of the impugned

cheque by him and the fact that the cheque was dishonoured for

insufficiency of fund in his account also stand proved.

[17] Even if the accused would have denied his debt, bare denial of

the existence of debt would not serve his purpose. The Apex Court in

KISHAN RAO Vrs. SHANKARGOUDA; reported in (2018) 8 SCC 165

has succinctly held that something which is probable has to be brought on

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

paragraph-20 of the said judgment, the Apex Court has held 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: (Sharma Carpets Case,(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

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

[18] In the present case, the trial Court as well as appellate Court

have come to the conclusion that the accused had taken loan from the

complainant for which he issued the impugned cheque which was

dishonoured by bank for insufficiency of fund in his account. The

signature of the accused petitioner on the impugned cheque has been

proved. The accused did not lead any evidence to rebut the presumption

taken by the Courts below under Section 139, N.I Act. He did not even

come in the witness box to support his case.

[19] With regard to the scope of the High Court for exercising

revisional jurisdiction under Sections 397/401 Cr. P.C, the Apex Court in

the case of KISHAN RAO(supra) has held that it would not be

appropriate for the High Court to re-appreciate the evidence and come to

its own conclusion where such evidence has already been appreciated by

the Magistrate as well as by the Sessions Judge in appeal, unless any

glaring feature is brought to the notice of the High Court which would

otherwise tantamount to gross miscarriage of justice. Observation of the

Apex Court in this regard is as under:

"12. This Court has time and again examined the scope of Section 397/401 Cr.P.C. and the ground

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for exercising the revisional jurisdiction by the High Court. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452, while considering the scope of the revisional jurisdiction of the High Court this Court has laid down the following:

"5......In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence....."

[20] In conclusion, I find no reason to interfere with the conviction

of the petitioner under Section 138, N.I Act. In so far as his sentence is

concerned, the trial Court, as stated, has convicted the petitioner to

rigorous imprisonment for one year and also a fine of Rs.2,00,000/-

(rupees two lakhs) which is twice the amount of the impugned cheque.

Said sentence of the petitioner has also been upheld by the appellate

Court.

[21] It has been settled that offence under N.I Act cannot be

equated with an offence punishable under IPC or other criminal offences

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since such offence is almost in the nature of civil wrong. Having taken