High Court Of Tripura vs Sri Subrata Sarkar
2022 Latest Caselaw 26 Tri

                              Page 1 of 11



               HIGH COURT OF TRIPURA
                         AGARTALA
                      Crl. A. 19/2019
Sri Uttam Choudhury
son of late Sudhir Ranjan Choudhury, resident of Sarashima,
P.O. Sarashima, P.S. Belonia, District- South Tripura
                                                           ----Appellant
             Versus
1.    Sri Subrata Sarkar
son of Rabindra Sarkar, resident of Madhyapara (near Police Quarter
Complex), P.O. Belonia, P.S. Belonia, District- South Tripura
2.    The State of Tripura
                                                           ----Respondents
For Appellant(s)                   :     Mr. PK Biswas, Sr. Advocate
                                         Ms. S. Debbarma, Advocate
For Respondent(s)                  :     Ms. R. Purkayastha, Advocate
                                         Mr. S. Ghosh, Additional PP
Date of hearing & delivery
of Judgment & Order        :             10.01.2022
Whether fit for reporting          :     No

        HON'BLE MR. JUSTICE ARINDAM LODH
              JUDGMENT(ORAL)

10/01/2022

This is an appeal under Section 378(4) Cr.P.C. against the judgment

dated 18.09.2017 passed by the learned Chief Judicial Magistrate, South

Tripura, Belonia in case No. N.I. 07 of 2015, acquitting the respondent no. 1

from the charge under Section 138 of the Negotiable Instruments Act, 1988.

2. The facts of the case, as projected by the learned Chief Judicial

Magistrate, are reproduced hereunder:-

"The complainant by way of his complaint lodged his grievances wherein he stated that owing to a good and friendly relation, he gave the accused a loan for an amount of Rs.14,00,000/-. It is stated that in discharge of the said liability, the accused provided the complainant a Cheque bearing 648416 dated 04.02.2015 of Tripura State Cooperative Bank, Belonia Branch which was presented by the later before the State Bank of India, Belonia Branch

for collections through his account lying with the same. The complainant alleged that on 30.04.2015, the State Bank of India, Belonia Branch returned the said Cheque in favour of the complainant with a Memo stating that the same was dishonoured due to insufficient fund in the account of the accused. Owing the above, the complainant stated to have served one notice upon the accused asking him to pay the concerned amount within 15 days from the date of receipt of the same but the accused did not even bother to reply nor made any payment of the amount due. Thus, the complainant stated to have lodged the instant Case being aggrieved with the acts and omissions of the accused".

3. Being summoned, the accused-respondent (here-in-after referred to as

the respondent) appeared before the learned court and contested the claim of

the complainant. The learned court taking cognizance of the complaint had

framed charge against the respondent. The complainant had led evidence. He

was cross-examined by the respondent. In defence, the respondent also had

produced three witnesses including himself.

4. Having heard learned counsel appearing for the parties, the learned

Chief Judicial Magistrate, dismissed the complaint and acquitted the accused

vide judgment and order, as aforestated. Being aggrieved by and dis-

satisfied with the said judgment of acquittal passed by learned Chief Judicial

Magistrate, the complainant has preferred the instant appeal before this

court.

5. In course of hearing of the present appeal, I have heard Mr. PK

Biswas, learned senior counsel assisted by Ms. S. Debbarma, learned

counsel appearing on behalf of the appellant-complainant (here-in-after

referred to as the complainant). Also heard Ms. R. Purkayastha, learned

counsel appearing on behalf of the respondent no. 1 and Mr. S. Ghosh,

learned Additional PP appearing on behalf of the State-respondent.

7. I have gone through the contents made in the complaint application,

examined the records and also perused the judgment passed by the learned

Chief Judicial Magistrate.

8. From the judgment of the learned trial court, it comes to light that the

learned trial court has taken up the following points for determination:

"Whether the accused issued one Cheque bearing No.648416 dt.04.02.2015 to the complainant for an amount of Rs.14,00,000/- in discharge of his liabilities which was subsequently dishonoured for insufficiency of funds in his account, as the complainant presented the same for collection through his account and that after receipt of appropriate legal notice, the accused failed to repay the amount within the stipulated period and that he thereby committed an offence punishable U/S-138 of The Negotiable Instruments Act? "

9. In this appeal, the moot question lies as to whether the complainant

has a legally enforceable debt to the respondent.

10. Mr. Biswas, learned senior counsel appearing on behalf of the

appellant has strenuously argued that the findings arrived at by the learned

trial court while pronouncing the judgment of acquittal are wholly perverse,

and thus, liable to be set aside. Learned senior counsel has argued that the

respondent‟s failure to respond to the statutory demand notice asking him to

pay/refund Rs. 14 lakh is sufficient to draw a presumption that the

respondent had indebted to the complainant. Mr. Biswas, learned senior

counsel has submitted that the defence story that the cheque amounting to

Rs. 14 lakh was issued to the complainant by the respondent was only out of

friendly relation between them and the issuance of the said cheque bearing

no. 648416 dated 04.02.2015 had no relation to their partnership business.

According to Mr. Biswas, the said cheque was issued by the respondent only

to repay the personal loan amount of Rs. 14 lakh which he borrowed from

the complainant. Mr. Biswas, has tried to persuade this court that the

presumption of a legally enforceable debt is to be drawn in favour of the

holder of the cheque, as contemplated under Section 139 of the Negotiable

Instruments Act. Placing reliance upon the decision of Rangappa vs. Sri

Mohan, reported in (2010) 11 SCC 441, and APS Forex Services private

Limited vs. Shakti International Fashion Linkers and others, reported in

(2020) 12 SCC 724, learned senior counsel has argued that keeping in view

the principles laid down in the aforesaid two cases, according to him, the

respondent had failed to rebut the presumption to be drawn in favour of the

complainant.

11. On the other hand, Ms. Purkayastha, learned counsel appearing on

behalf of the respondent no. 1 has submitted that the complainant had lodged

a frivolous complaint against the respondent. In addition, learned counsel for

the respondent no. 1 has submitted that from the contents of the complaint

application, it reveals that the complainant has failed to explain when, how

and why the complainant had paid Rs. 14 lakh to him. Moreso, according to

learned counsel for the respondent, the complainant has intentionally

suppressed the material fact that the complainant alongwith the respondent

no. 1 and others were involved in a partnership business and the transaction

was occurred in course of that partnership business. Ms. Purkayastha,

learned counsel has invited my attention to an Agreement dated 03.01.2015

(Exhibit-A series) entered into between the partners of the business

including the complainant and the respondent no.1 and that Rs. 14 lakh was

paid out of the said Agreement.

12. I have given my thoughtful consideration to the submissions advanced

by learned counsel appearing for the parties to the lis.

13. Before I advert to the merits of the case, I am inclined to look at the

settled proposition of law as emanated in Rangappa (supra) where the

Hon‟ble Supreme Court at para 22 had relied upon the principles drawn in

its earlier decision in Hiten P Dalal vs. Bratindranath Banerjee, which is

reproduced here-in-below: [scc, PP- para 22]

"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, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has 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 (...). 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 probability of the non-existence of the presumed fact.

23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court 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,

'after considering the matters before it, the Court either believes it to exist, or considers its existence so 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'."

(emphasis supplied)

Thereafter, the Hon‟ble Supreme Court in Rangappa (supra) held thus:

"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 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.

14. Keeping in mind the aforesaid ratio laid down by the Apex Court, I

have minutely perused the evidences, both oral and documentary, as let in by

the complainant as well by the respondent.

15. It is observed that the complainant has simply stated that out of good

friendly relation, the complainant had paid Rs. 14 lakh to the respondent

no.1 as loan. Against said loan amount, the respondent no. 1 had issued

"post dated cheque" payable at Tripura State Co-operative Bank Ltd.,

Belonia Branch. Due to non-payment of said amount, the complainant had

placed the cheque to his own banker for realization of the said amount of Rs.

14 lakh, but, it was returned by the banker of the respondent no.1 with the

remark "Insufficient Fund". The complainant issued demand notice claiming

payment of Rs. 14 lakh, but, even after receipt of the said statutory notice,

the respondent no.1 did not refund the said amount to the complainant which

compelled the complainant to lodge the instant complaint against the

respondent no. 1 under Section 138 of the Negotiable Instruments Act. The

cheque bearing no. 648416 amounting to Rs. 14 lakh issued by the

respondent no. 1 had been proved by the complainant being marked as

Exhibit-1. The return notes were also proved and were taken in evidence.

16. At the very outset, what strikes the mind of this court is that the

complainant has not stated anywhere when he paid the loan amount to the

respondent no. 1; under which terms and conditions and when the said

amount would be refunded back to the complainant by the respondent no.1,

which is a natural phenomenon considering the nature of such transactions.

17. Per contra, the respondent no. 1 had adduced evidence by producing

three witnesses including himself. In course of evidence, the respondent no.

1 had introduced one Agreement dated 03.01.2015 (Exbt. A-2) wherefrom it

reveals that all the partners including the complainant and the respondent

had agreed that the „post dated cheque‟ bearing no. 648413 dated 04.02.2015

for Rs. 14 lakh was issued out of the said agreement on the understanding

that the cheque amount would be cleared within next one month. The

complainant has also admitted the existence and execution of the said

Agreement (Exbt. A-2) and also has proved his signature (Exbt. A-series)

thereon. The said Deed of Agreement (Exhibit A series) was entered into by

all the partners for the reason that the complainant had expressed his

willingness to retire from the said partnership business. Said Rs. 14 lakh was

paid to the complainant by other partners out of profit. It is the specific case

of the respondent that earlier to issuance of the cheque bearing no. 468416

dated 04.02.2015, he had issued another cheque bearing no. 648413

(Exhibit-B) on the same date, but, since it was noticed that there was some

over-writing in the said cheque, he had subsequently issued the cheque in

question bearing no. 648416 dated 04.02.2015 and both the cheques were

issued in terms of the said Agreement dated 03.01.2015.

18. From the evidence of DW-2, it comes to fore that the respondent had

paid Rs. 7 lakh out of said Rs. 14 lakh and out of the rest amount, they

provided bricks for an amount of Rs. 4,50,000/- and by cash Rs. 2,50,000/-

to the complainant.

19. During cross-examination, it is noticed by this court that the

complainant did not make any attempt to deny about the said factual aspects,

as surfaced from the chief-examination of DW-2. During cross-examination,

it has further come to light that the said amount of Rs.14 lakh was paid to

the complainant out of the liability of the entire partnership firm. Both DW-

1 and DW-2 have affirmed that though the payment of Rs. 14 lakh to the

complainant was out of the liability of the partnership firm, but, since there

was no sufficient fund in the account of the partnership firm, the respondent

no. 1 had issued a cheque of Rs. 14 lakh to the complainant from his

personal account. I have further noticed that the complainant has not

specifically denied that he did not receive Rs. 7 lakh out of said Rs. 14 lakh.

It is also the specific case of DW-1 that though the complainant had returned

back the cheque no. 648413 dated 04.02.2015, but, he did not return the

cheque being no. 648416 despite repeated requests. I have noticed that

during examination under Section 313 Cr.P.C., the respondent no. 1 has

specifically stated that he had issued two cheques to the complainant on

good faith and the complainant had returned the cheque being no. 648413,

but, he did not return the cheque being no. 648416. Moreso, this plea of the

respondent no. 1 has been proved when he adduced evidence to support his

plea.

20. As I have said earlier, the first question that strikes my mind as to why

the complainant has suppressed the business relationship between him and

the respondent no. 1. The statement regarding the fact that he had paid Rs.

14 lakh out of friendly relation to the respondent no. 1 as loan, also appears

to be a vague one without any further substance, viz. absence of statement

regarding the date and time of the payment of such loan, and the period

within which the said amount would be refunded to the complainant.

21. Following the principles, as delineated by the Apex Court in the case

of Rangappa (supra), in my opinion, the respondent no. 1 has been able to

rebut the presumption of law, as tried to be projected by the complainant in

the instant case that he had legally enforceable debt to the respondent no. 1.

22. I have gone through the decision of APS Forex Services private

Limited (for short, "APS Forex) (supra), as relied upon by learned senior

counsel appearing on behalf of the appellant. In my opinion, the facts of the

case are quite distinguishable from the facts of the present case. In APS

Forex (supra), the Supreme Court came to a finding that being the holder of

the cheque had been able to prove that he had legally enforceable debt to the

respondent. In the case supra it was proved that the respondent issued a

cheque earlier which was dishonoured, and thereafter, the respondent issued

another cheque on demand of the complainant which had naturally re-

inforced the presumption that the respondent had a debt to the APS Forex

Services Private Limited. The respondent also had admitted that some

amount was due to the complainant- APS Forex Services Pvt. Ltd. On that

pretext, the Hon‟ble Supreme Court held that the complainant had been able

to prove his case and the respondent had failed to rebut the presumption of

law, as contemplated under Section 139 of the Negotiable Instruments Act.

Furthermore, the respondent did not adduce any evidence to rebut the

statutory presumption by any degree of probability. In the instant case, the

respondent no. 1 came forward to adduce evidence and in the opinion of this

court, the respondent no. 1 had successfully rebutted the presumption of law,

which is supposed to be drawn in favour of the appellant-complainant.

23. After perusal of the judgment of the learned trial court, I find that the

view taken by the court is a probable view. Since this court is satisfied that

the view taken by the learned trial court is a probable one, then, this court is

not inclined to disturb or dislodge the findings of the learned trial court. It is

settled proposition of law that when there are two probable views, the view

favourable to the accused should be accepted by the court.

24. In the light of the above discussion, I find no merit in the instant

appeal. The instant appeal, is accordingly, dismissed. Send down the LCRs.

JUDGE

Saikat