Tripura High Court

Shri Apu Ghosh vs Shri Bhusan Das on 20 June, 2024

                            HIGH COURT OF TRIPURA
                                    AGARTALA
                              Crl. A. No.03 of 2023


      Shri Apu Ghosh,
      son of Late Nilmohan Ghosh,
      resident of Town Rajarbag,
      P.O. R.K. Pur, Udaipur, P.S. R.K. Pur,
      District - Gomati, Tripura
                                                          ----Appellant(s)
                                        Versus

      1. Shri Bhusan Das,
      son of late Late Manindra Das,
      resident of No.1 Fulkumari,
      Kanel Chowmuhani, P.O. R.K. Pur,
      Udaipur, P.S. R.K. Pur,
      District- Gomati, Tripura

      2. The State of Tripura

                                                        ----Respondent(s)

      For Appellant(s)              :      Mr. S. Lodh, Adv.
                                           Mr. Subham Majumder, Adv.
      For Respondent(s)             :      Mr. Raju Datta, P.P.
                                           Mr. K. Datta, Adv.
      Date of Hearing               :      22.05.2024
      Date of delivery of
      Judgment & Order              :      20.06.2024
      Whether fit for reporting     :      YES


                  HON'BLE MR. JUSTICE BISWAJIT PALIT
                               Judgment & Order

This appeal under Section 378(4) of Cr.P.C. is preferred

challenging the judgment and order dated 19.01.2023 passed by

Learned Judicial Magistrate, First Class, Udaipur, Gomati, Tripura, Court

No.3 in connection with Case No.C.R.(N.I.)56 of 2019. By the said

judgment, Learned Trial Court has acquitted the respondent No.1 for

commission of offence punishable under Section 138 of Negotiable

Instrument Act, i.e. N.I. Act, in short.

2. Heard Mr. S. Lodh, Learned counsel assisted by Mr. Subham

Majumder, Learned counsel appearing for the appellant-complainant, as

well as Mr. K. Datta, Learned counsel appearing for the respondent-

complainant No.1 and Mr. Raju Datta, Learned P.P. appearing for the

State-respondent No.2.

3. Before proceeding with the merit of the appeal, let us project the

subject matter of dispute amongst the rival parties. According to the

complainant, out of friendly relationship, the accused Bhusan Das on

29.03.2019 at about 11.00 a.m. borrowed a sum of Rs.4,50,000/- from

the complainant namely Shri Apu Ghosh at Hotel Maharaja, Rajarbag in

presence of one Uttam Sutradhar of 2 number Fulkumari, Udaipur and

another Pritam Datta of Rajarbag, Udaipur. Thereafter, again on

03.04.2019 at about 5.00 p.m., the accused respondent further

borrowed a sum of Rs.7,50,000/- at Hotel Maharaja, Rajarbag in

presence of Shri Sanjib Debnath of Gakulpur, Madhyapara and Shri

Ratan Chakraborty of Town Rajarbag for the purpose of his business on

condition that he would returned back the money before Durga Puja of

2019. Thereafter, being approached by the complainant i.e. the

appellant herein, the accused issued a cheque vide No.012853 dated

23.09.2019 for an amount of Rs.11,06,000/- in favour of the

complainant, drawn on Tripura State Co-operative Bank Ltd., Udaipur

Branch vide No.000211010018047 in presence of Sanjib Debnath, Raju

Day and Biswajit Saha, out of his total debt amounting to Rs.12,00,000/-

to discharge his debts and liabilities. Then, on the very same day i.e. on

23.09.2019 the appellant-complainant deposited the said cheque vide

No.012853 dated 23.09.2019 for an amount of Rs.11,06,000/- only in

his account No.0462010237253 lying with United Bank of India, Udaipur

Branch for encashment. But on 24.09.2019, the Branch Manager, United

Bank of India, Udaipur Branch returned back the said cheque to the

complainant stating inter alia that due to 'Funds insufficient' the cheque

had been dishonoured. After that, on 03.10.2019, the appellant-

complainant through his Advocate Mr. Asif Iqbal served one demand

notice to the respondent-accused by registered A/D post demanding

payment of cheque amounting to Rs.11,06,000/- within the stipulated

period of 15 days from the date of receipt of that notice. The

respondent-accused on 12.10.2019 received the registered notice dated

03.10.2019 but till the date of filing of the instant case he did not pay

any amount to the complainant. Thus, according to the appellant-

complainant, the accused dishonestly cheated and deceived the

complainant knowing fully well that there was no sufficient fund in his

Bank Account, but inspite of that issued cheque to the complainant

deliberately with a view to defraud him and thus, according to the

appellant-complainant, the respondent-accused had committed an

offence punishable under Section 138 of N.I. Act read with Section 420

of IPC. Hence, he filed the case.

4. After registration of the case, notice was served upon the

accused-respondent. The respondent-accused appeared before the Court

and thereafter, the substance of acquisition as required under Section

251 of Cr.P.C. was narrated to the accused in Bengali to which he

pleaded not guilty and claimed to be tried. Hence, the trial was

commenced. During trial, to substantiate the allegation of acquisition,

the appellant-complainant adduced 5(five) witnesses including himself

and exhibited some documents which were marked as Exbt.1 to Exbt.10.

Thereafter, the respondent-accused was examined under Section 313 of

Cr.P.C. when he desired to adduce witness in support of his defence and

accordingly, the respondent-accused adduced 2(two) witnesses as DW-1

and DW-2 and also relied upon some documents which were also marked

as Exbt.D/1 and Exbt.D/2 on identification. The defence case was that of

total denial, rather, the respondent took the plea that a blank cheque

bearing No.012853 drawn on Tripura State Cooperative Bank Ltd.

Udaipur Branch, Udaipur containing his signature was missing from the

beneath of his pillow and on that date, the appellant-complainant visited

his house. Thereafter, the respondent-accused made a G.D. Entry at

R.K. Pur P.S. in regard to missing of cheque and submitted a prayer

before the bank authority for cancellation of missing cheque. But after

10 months 22 days of the incident, when the appellant-complainant

lodged the case against him, that time he could understand that his

cheque, as alleged was stolen by the complainant. However, to

determine the case, Learned trial Court formulated 4(four) points and

thereafter, after hearing of arguments vide judgment and order dated

19.01.2023 acquitted the respondent-accused from the charge under

Section 138 of N.I. Act. For the sake of convenience, I would like to refer

herein below the relevant portion of the order of the Learned trial Court

which runs as follows :

"In the result, the accused Sri Bhusan Das(A1), is hereby acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act and he is set at liberty at once. The surety of the accused person during trial stand discharged from the liability of bail bond.

The bail bond furnished by the accused person in compliance of Section 437A, Cr.P.C. shall remain in force for a further period of 6(six) month.

The case is disposed of on contest with an order of acquittal.

Enter the result in CIS as well as in the Trial Register. The record shall be consigned to the record room after complying all legal formalities."

5. At the time of hearing of argument, Mr. S. Lodh, Learned

counsel appearing for the appellant submitted that Learned trial Court

below could not appreciate the evidence on record, rather, believed the

concocted story of the respondent-accused and ultimately by the

impugned judgment acquitted the respondent-accused from the charge

of this case. He further submitted that initially, at the time of filing of the

complaint through bonafide mistake the cheque number was wrongly

written as 012583 but later on, the fault was detected and thereafter,

amended the complaint mentioning the exact number of the cheque as

012853. He also stressed upon Exbt.D/1 and Exbt.D/2 and submitted

that no police officer relating to GD Entry was produced by the

respondent-accused before the Court to substantiate his manufactured

story of missing of cheque. Even, no police report was submitted to

substantiate the story leveled by the respondent-accused that the

cheque was actually found to be missing. Furthermore, from D/1 the

money slip deposited for the missing cheque it cannot be said that the

said money was deposited for the purpose of alleged cheque. In this

regard, there was no explanation from the side of the respondent-

accused, even, as alleged by the respondent-accused no legal action was

taken against the complainant that he had stolen the cheque from his

residence. Even, the GD Entry Book of the police station was not

produced, nor any extract of GD Entry was produced to substantiate his

evidence. Furthermore, Learned counsel for the appellant also submitted

that it is on record that the respondent-accused during his examination

before the Court himself admitted that the present appellant-

complainant had filed another case against him which was settled

through Lok Adalat. So, the story of absence of any business relation as

projected by the respondent-accused cannot be believed. Furthermore,

the evidence of Bank Official adduced by the respondent-accused is also

not trustworthy which was also confusing one. So, according to Learned

counsel for the appellant-complainant that the Learned trial Court below

did not appreciate the evidence on record properly and ultimately came

to an erroneous finding for which he urged before the Court to interfere

with the judgment of setting aside the respondent-accused from the

charge under Section 138 of N.I. Act.

6. On the other hand, Mr. K. Datta, Learned counsel appearing

for the respondent No.1 submitted that the Learned Court below rightly

after elaborate discussion of the evidence on record acquitted the

respondent-accused from the charge of this case. According to him as

mandated by law, the appellant-complainant issued notice upon the

respondent-accused mentioning the wrong cheque number and thus, the

complainant-appellant has violated the principle of Section 138 of N.I.

Act. Furthermore, during trial no objection was raised by the

complainant-appellant against Exbt.D/2 i.e. the alleged complaint on the

basis of which the GD Entry was made. So, the story according to

Learned counsel, raised by the appellant-complainant cannot be

accepted, rather, the defence story is much more acceptable and

believable in the eye of law. No bank statement was furnished by the

appellant-complainant to substantiate the payment made by him to the

respondent-accused, even, according to Learned counsel, no income tax

return or other relevant papers were submitted by him to substantiate

his contention. Furthermore, the amendment petition so submitted was

totally silent about wrong entry of cheque number. So, according to

Learned counsel for the respondent-accused, the Learned Court below

rightly and reasonably delivered the judgment acquitting the

respondent-accused from the charge of this case for which there was no

merit of this case and urged for dismissal of this appeal.

7. It is to be noted here that on 07.03.2020 the appellant-

complainant filed one petition before the Learned trial Court for

amendment of the complaint and thereafter, after hearing both the sides

by order dated 20.07.2021 the said petition was allowed by the Learned

Court.

8. In a case under Section 138 of N.I. Act to made out the case

against the any accused the complainant must prove the following facts :

"1. The accused issued a cheque on account maintained by him with a Bank and the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.

2. The said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.

3. The aforesaid cheque, when presented for encashment was returned unpaid/dishonoured.

4. The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.

5. The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand."

9. Now, here in the case we are to examine what was the

evidence on record of the parties to satisfy the aforesaid ingredients to

substantiate the charge under Section 138 of N.I. Act. As already stated,

the appellant-complainant examined five witnesses including himself.

10. CW-1, Shri Apu Ghosh, the appellant-complainant filed

examination-in-chief in affidavit before the Court. He also relied upon

some documents in support of his claim which were marked as Exhibits

as narrated below:

1) Cheque vide No.012853 dated 23.09.2019 amounting to Rs.11,06,000/- issued by Bhushan Das in his favour marked as Exhibit.1.

2) Counter part of the Deposit Slip, dated 23.09.2019 submitted to United Bank of India, Udaipur Branch, marked as Exhibit.2.

3) Bank Return Memo, dated 24.09.2019, issued by United Bank of India, Udaipur Branch.

4) Counter part of the Postal Receipt dated 03.10.2019 marked as Exhibit.3.

5) Copy of Legal Notice dated 03.10.2019 (in 03 pages), served upon the accused by him, marked as Exhibit.4.

6) Acknowledgement Card dated 12.10.2019 with regard to Notice served upon the accused, marked as Exhibit.5.

7) Copy of Registration Certificate of vehicle bearing Registration no.TR-03-1389 (OM Bus) in the name of appellant-complainant, marked as Exhibit.6.

8) Copy of Notification vide No.F.8(5)-PWD(C)/2012/ dated 4th November, 2015 enlisting the name of contractors including the name of the appellant-complainant which on comparison with the original marked as Exhibit.7, Exhibit.7/1 and Exhibit.7/2 (in 03 pages).

9) Copy of Trade Licence, issued by the Udaipur Municipal council, in the name of partner of the appellant Shri Ratan Chakraborty, which on comparison with the original marked as Exhibit.8.

10) Partnership agreement between the appellant and 02(two) others, marked as Exhibit.9.

11. During cross-examination by the respondent-accused he

admitted that no notice was issued by him with regard to the cheque

No.012853. Witness volunteered that there was typographical error in

mentioning the cheque number in notice. He further admitted that in the

complaint petition as well as in examination-in-chief in the form of

affidavit submitted that before amendment mentioned the cheque

No.012583. He has further submitted that he has not submitted any

work order regarding work done by him as a contractor for a period from

2018 to 2020. Also stated that he is not an income tax payee. He never

filed any income tax return nor submitted any Bank document or any

other document to show that he had cash in hand or in bank a sum of

Rs.12,00,000/- on or before 23.09.2019. Again, he stated that he used

to maintain Register regarding the cash transaction done by him on each

day.

12. CW-2, Sri Uttam Sutradhar in his examination-in-chief in

affidavit stated that he knows both the parties of this case. The accused

Bhusan Das who is well acquainted with the complainant and have a

friendly relationship. The accused on 29.09.2019 at about 11 p.m.

borrowed an amount of Rs.4,50,000/- only from the complainant from

Hotel Maharaja at Rajarbag in presence of him and one Sri Pritam Datta

of Town Rajarbag for the purpose of his business with promise that he

would return back the said amount before Durga Puja of 2019. He has

also stated that he had heard that the accused person further borrowed

a sum of Rs.7,50,000/- only from the complainant. Said witness further

stated that on being approached on 23.09.2019 the accused indemnified

his due debts by issuing a Cheque vide No.012583 dated 23.09.2019 for

Rs.11,06,000/- out of Rs.12,00,000/- in favour of the complainant on

Tripura State Co-operative Bank Ltd., Udaipur Branch vide A/C

No.000211010018047 in presence of witness towards discharge the

liabilities of the accused person. Thereafter, on 23.09.2019, the

complainant had deposited the said Cheque No.012583 dated

23.09.2019 for Rs.11,06,000/- only in his account No.0462010237253

lying with United Bank of India, Udaipur Branch for encashment of the

same. But on 24.09.2019, the Branch Manager, United Bank of India,

Udaipur Branch returned back the cheque with a certificate to the

complainant that due to 'Funds insufficient' the cheque has been

dishonoured. He has further stated that on 03.10.2019 through Advocate

the complainant gave demand notice to the accused person by

registered post demanding payment of the cheque amounting to

Rs.11,06,000/- from the accused person failing which it was stated in

the legal notice that legal action shall be taken against the accused

person. On 12.10.2019 the accused person received the registered

notice dated 03.10.2019 but till date the accused person did not make

any payment to the complainant.

During cross-examination, nothing came out relevant.

13. CW-3, Sri Sanjib Debnath @ Sanjit Debnath deposed that he

knows both the parties of this case. The accused Bhusan Das is also well

acquainted with the complainant and have a friendly relationship with

him. The accused person on 03.04.2019 at about 5 p.m. borrowed a sum

of Rs.7,50,000/- from the complainant from Hotal Maharaja at Rajarbag

in presence of him and Sri Ratan Chakraborty of Town Rajarbag for the

purpose of business with condition that he will returned back the money

before Durga Puja of 2019 A.D. He also heard that the accused person

previously also borrowed an amount of Rs.4,50,000/- from him.

Thereafter, on being approach on 23.09.2019 the accused person to

indemnify his debts issued a cheque vide No.012583 dated 23.09.2019

for Rs.11,06,000/- out of Rs.12,00,000/- only in favour of the

complainant on Tripura State Co-operative Bank Ltd., Udaipur Branch

vide A/C No.000211010018047 in presence of him and Sri Raju Dey of

Gakulpur, Sri Biswajit Saha of Badarmokam towards the discharge the

liabilities of the accused. Thereafter, on 23.09.2019, the complainant

had deposited the said cheque No.012583 dated 23.09.2019 for

Rs.11,06,000/- in his account No.0462010237253 lying with United Bank

of India, Udaipur Branch for encashment of the same. But on 24.09.2019

the Branch Manager, United Bank of India, Udaipur Branch returned back

the cheque with a certificate to the complainant that due to 'Funds

insufficient' the cheque has been dishonoured. After that, the

complainant served legal notice upon him.

During cross-examination by the respondent-accused he

stated that the complainant and the accused used to work together but

he could not say the cheque number in relation to which the instant case

was filed. Nothing more came out relevant.

14. CW-4, Ratan Chakraborty also deposed in the same manner

like witness Sanjib Debnath in his examination-in-chief in affidavit.

During cross-examination, he stated that he is running hotel

in partnership with the complainant and monthly turnover from the

business of hotel is about Rs.70 to 80 thousands and yearly Rs.8 to 9

lacs. Again he stated that he never visited the house of Bhushan Das and

he had no business transaction with the accused Bhushan Das.

15. CW-5, Shri Subhrangshu Samanta deposed that he is the

Branch Manager of Punjab National Bank, Udaipur Branch. He appeared

on receipt of the notice of the Court. The United Bank of India has

become Punjab National Bank after amalgamation. On 23.09.2019, Shri

Apu Ghosh deposited one cheque vide No.012853 dated 23.09.2019

drawn by Shri Bhushan Das on Tripura State Cooperative Bank, Udaipur

Branch for encashment. Cheque could not be encashed because same

was dishonoured by the drawee bank on the ground of 'insufficiency of

fund' in the bank account of the drawer of the cheque. Therefore, bank

authority returned the cheque to Shri Apu Ghosh by issuing a Return

Memo and he identified the Return Memo marked as Exbt.10. During

cross-examination, he stated that when the cheque was presented for

encashment that time he was not posted in the same branch. He

personally verified that Apu Ghosh had Bank Account with their bank.

Again stated that the Return Memo was issued based on the intimation

provided by the drawee bank informing the ground on which the cheque

was dishonoured. He could not say as to whether the cheque was stolen

or not. Again stated that if the cheque is returned on the ground that it

is freezed then the drawee bank will not issue intimation stating

insufficiency of the fund as a ground for dishonour of cheque.

16. Although, the complainant submitted the examination-in-

chief in affidavit of witnesses Raju Dey and Biswajit Saha, but finally,

they could not be produced. So, by the order dated 06.08.2022, the

evidence of the complainant was closed.

17. DW-1, Shri Bhusan Das the respondent-accused in his

examination-in-chief in affidavit submitted that he is the accused of this

case. The accused filed the case against him for illegal gain. He is an

enlisted contractor vide enlistment No.2030 under P.W. Department,

Government of Tripura and his enlisted amount is Rs.50,00,000/-. He

further stated that he had good relation with Apu Ghosh and used to visit

to his residence about contract work time to time. He has got one

current account in Tripura State Co-operative Bank Ltd., Udaipur Branch

vide A/C No.000211010018047 and he used to use the cheque for

withdrawal of money. On 30.10.2018 he signed his cheque No.012853

without writing any amount and date in that cheque 12853 and kept the

cheque book under his pillow of his bed at home Fulkumari. On that day,

complainant Apu Ghosh came to his residence and left his house in the

afternoon. On 31.10.2018 when he was going to withdraw some money

from State-Cooperative Bank by his cheque, he found that the cheque

No.12853 was missing from his cheque book. Thereafter, he searched at

his house everywhere, but he could not trace out the same cheque.

Thereafter, he wrote an application addressing to O.C. R.K. Pur P.S. on

31.10.2018 and on 01.11.2018 he submitted that application to O.C.

R.K. Pur P.S. which was registered vide G.D. Entry No.17 dated

01.11.2018. On 01.11.2018 he informed the matter of missing his

cheque to Branch Manager Tripura State Co-operative Bank, Udaipur

Branch and he deposited Rs.71 as a cancellation fees for that cheque

and the said cheque was cancelled. After filing of the case he became

sure that the complainant had stolen his cheque bearing No.012853. The

complainant Apu Ghosh issued Advocate demand notice by giving a false

cheque vide No.012583 dated 23.09.2019. He replied that notice

denying the issue of cheque No.12583 and Apu Ghosh filed this case by

giving cheque No.012583 and he had submitted examination-in-chief

mentioning cheque No.012853. He also relied upon the copy of

information in writing dated 31.10.2018 given by him and counter signed

by O/C R.K. Pur P.S., which was marked as Exbt.D/2. He also identified

Bank Slip dated 01.11.2018 issued by him to Tripura State Cooperative

Bank Ltd. Udaipur Branch on payment of Rs.71/- as a charge for

stopping the payment of cheque vide No.012853. During cross-

examination, he admitted that the complainant lodged another case

against him in the Court for dishonor of cheque for an amount of

Rs.90,000/- issued by him and subsequently, the matter was amicably

settled at Lok Adalat and as per terms of settlement in the Lok Adalat he

paid Rs.70,000/- to the complainant. He further admitted that the

complainant had a Hotel and Hardware Shop at Rajarbag Motor Stand.

Also stated that he heard that the complainant had also business of Bus

Service and the complainant was a Contractor. He further stated that he

had not submitted any documents in support of his contention that he

had enlistment of Rs.50,00,000/- as a Contractor and he had not

submitted any documents in the Court regarding the

investigation/inquiry conducted by police upon the information entered in

the G.D. He had not submitted any documents showing that payment of

the cheque was stopped because Bank did not issue any such document.

He only complied the procedural formalities for stopping the payment of

lost cheque.

18. DW-2, Shri Swapan Jamatia deposed that he is the Branch

Manager of Tripura State Cooperative Bank Ltd., Udaipur Branch. He

appeared before the Court on receipt of notice of the Court. As per bank

records one copy of information entered into the G.D. of R.K. Pur P.S.

was submitted stating that blank cheque vide No.012853 against the

Account of the applicant of Shri Bhusan Das with Tripura State

Cooperative Bank Ltd., Udaipur Branch, Udaipur bearing his signature

was lost and based on such information, the payment of said Cheque

was stopped on 01.11.2018 from the Bank and accordingly, they issued

a bank slip dated 01.11.2018 and he identified the Bank slip marked as

Exbt.D/1.

19. During cross-examination, he deposed that on 24.09.2019

their Bank received the said cheque forwarded by the then United Bank

of India, Udipur (now PNB, Udaipur) on being deposited by Shri Apu

Ghosh for encashment. He further admitted that the Tripura State

Cooperative Bank Ltd., Udaipur Branch returned back the said cheque

unpaid stating that the cheque had been dishonoured on the ground of

insufficiency of fund on the account of Shri Bhusan Das. Again stated

that the return memo must have been issued based on the information

given by the official by the Tripura State Cooperative Bank Ltd., Udaipur

Branch, Udaipur. Being asked by the Court he stated that it must have

been done by mistake because encashment of the said cheque was

already been stopped by the Bank. Again stated the he had not brought

any official record nor he had gone through the official records except

the bank slip issued by their Bank. In the said bank slip, commission of

Rs.71/- was charged from their bank from Shri Bhusan Das and as per

the Bank Rules & Regulations, the said amount is only for stopping

payment of cheque. He further admitted that in the said Bank slip there

is nothing indicating the number or details of the cheque the payment of

which was stopped by their bank. He further admitted that there is no

record of the bank with him specifically mentioning that the payment of

the said cheque was stopped from their bank. Also he stated that he was

posted in another bank at that time and did not have any personal

knowledge in that regard. He further volunteered that the relevant

details of the cheque mentioned on the copy of the information received

by the police officials of R.K. Pur P.S. with necessary endorsement and

there is receipt seal of Bank Authority on the copy of information and

further the bank slip was attached with the copy of such information.

These are the sum and substance of the evidence on record

of both the parties in support of determination of the case before the

Learned trial Court.

20. After hearing both the sides and after going through the

evidence on record of both the parties, it appears that :

(I) Admittedly, the complainant initially filed one complaint mentioning

the cheque No.012853 although the same was later on amended by the

order of the Court mentioning the correct cheque No.012853.

(II) Admittedly, at the time of serving of notice, the complainant

mentioned the cheque No.012853 i.e. prior to amendment. But on

perusal of the evidence on record, it appears that since the amendment

was allowed by the Court after hearing both the sides, so, the

respondent-accused is not entitled to get any benefit on this point that

wrong notice was issued mentioning a wrong cheque number, even, in

this regard, no proper step was taken by the respondent-accused before

any other forum. Now, the story as projected by the respondent-accused

that from his bed room under the beneath of pillow his cheque was

found missing and later on, when the case was filed he could understand

that the said cheque might have been stolen by the complainant as on

that day, the complainant came to his residence. In this regard, it is

submitted that if the story of the respondent-accused is found to be

correct, in that case, no legal action was taken by him against the

complainant-appellant that he had stolen the cheque. Furthermore, there

was no declaration in the form of paper publication that his cheque was

stolen for the information of the general public so that nobody could take

any benefit against his alleged missing cheque. Furthermore, the

respondent-accused before the Learned trial Court did not submit any

police report regarding his alleged GD Entry nor adduced any police

officer to support his defence. More so, the respondent-accused by the

trend of cross-examination could not raise any doubt to disbelieve the

evidence on record of the complainant and his witnesses regarding

making payment of cash money in their presence to the respondent-

accused. Admittedly, the complainant-appellant before the Court could

not submit any bank statement nor could submit any income tax papers

to substantiate that he had sufficient money for landed to the

respondent-accused. But at the same time, it is on record that he has

got total business and other connected business at Udaipur.

21. At the time of hearing of argument, Learned counsel of both

the parties referred few citations but on perusal of those citations, it

appears to me that those are not relevant for the decision of the present

case. On perusal of the evidence on record it appears to me that

although the Learned trial Court below acquitted the respondent-accused

from the charge under Section 138 of N.I. Act, but the Learned Court

below failed to appreciate properly the presumption laid down under

Section 118A of the N.I. Act in determination of the case under Section

138 of N.I. Act. So, for proper adjudication of this case, in my considered

view further enquiry is to be made by Learned trial Court below on the

allegation and counter allegation of the rival parties. As already stated,

the appellant-complainant could not submit his bank statement or other

income tax related documents before the Learned trial Court but there is

evidence on record that he is running business of hardware and he is

also a Contractor by profession. There is no dispute in this regard from

the side of the respondent-accused. At the same time, the respondent-

accused also a Contractor having enlistment which is also not been

disputed by the appellant-complainant. A question was raised regarding

holding of so much of cash amount which the appellant-complainant

gave the respondent-accused, although some sort of

clarification/explanation was given by the complainant but the

explanation made was not satisfactory. At the same time, the

respondent-accused in support of his allegation of missing of cheque

could not adduce the police officer to substantiate his contention nor

proved or produced any police report to substantiate his defence.

22. Situated thus, it appears to this Court that for proper

adjudication of the dispute, the Learned Court below shall proceed for

taking of further evidence of both the sides to substantiate the allegation

and counter allegation on the following points :

1) Whether the story of missing cheque as alleged by the

respondent-accused is true or not and if it is true then what was the

report of the police in respect of his alleged GD Entry vide No.17

dated 01.11.2018 ?

2) Whether the bank slip dated 01.11.2018 i.e. Exbt.D/1 relates to

disputed cheque or not and if the answer is 'Yes' then how the

United Bank of India now PNB has issued Exbt.10 ?

3) Whether the respondent-accused took any legal action against

the complainant-appellant regarding missing of cheque which has

been stolen and if the answer is 'No' then why no step was taken ?