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Tripura High Court · body

2020 DIGILAW 42 (TRI)

Ram Chandra Banik v. Madan Krishna Bhowmik

2020-03-05

AKIL KURESHI

body2020
JUDGMENT : 1. This appeal is filed by the original complainant whose complaint for commission of offence under Section 138 of the Negotiable Instrument Act, 1881 (NI Act, for short) of dishonour of cheque filed against the respondent came to be dismissed by the impugned judgment of the learned Chief Judicial Magistrate, Gomati District, Udaipur. Consequently the present respondent original accused was acquitted of the said charge. 2. The case of the complainant was that he and the accused were acquaintances since they were both working in the same department of the Government. The accused had borrowed sums of money from the complainant from time to time totaling to Rs.8,00,000/- on a promise that he would sale his land with rubber plantation to the complainant. According to the complainant, such payments were made between 07.01.2012 to 10.06.2016 in different installments. The complainant pointed out that an amount of Rs.50,000/- was paid by cheque dated 20.09.2013 and a further sum of Rs.1,00,000/- was paid by cheque dated 23.12.2013. The complainant had also given further breakup of the payment of remaining sums of money. According to the complainant, sometime in the year 2017, he had called upon the accused to transfer the property to him which the accused refused. The accused instead issued a cheque dated 18.09.2017 for the sum of Rs.8,00,000/- drawn in favour of the complainant on United Bank of India, Udaipur branch which was towards the discharge of his liabilities. On 22.09.2017 the complainant deposited the said cheque for realization in his account of United Bank of India, Udaipur branch. On 25.09.2017 the Branch Manager returned the said cheque with a certificate that due to insufficient fund in the account of the drawer of the cheque the same has been dishonoured. On 23.10.2017 the complainant thereupon issued a demand notice through his advocate to the accused calling upon him to repay the said sum of Rs.8,00,000/- within 15 days of date of receipt of the notice failing which he would take legal action against the accused. On 31.10.2017 the accused received the notice but made no payment towards the cheque amount. He did not even reply to this notice. Thereupon within the statutory period the said complaint was lodged against the accused. 3. The complainant was examined as P.W.1. He had filed his examination-in-chief in the form of an affidavit in which above details were given. On 31.10.2017 the accused received the notice but made no payment towards the cheque amount. He did not even reply to this notice. Thereupon within the statutory period the said complaint was lodged against the accused. 3. The complainant was examined as P.W.1. He had filed his examination-in-chief in the form of an affidavit in which above details were given. In his oral deposition he further stated that the cheque in question contains the signature of the accused. Through his evidence several documents such as the cheque return memo, demand notice, postal receipt of demand notice etc. were exhibited. He produced at Exbt.7 his original passbook of United Bank of India, Udaipur branch showing the details of the transactions between 16.07.2012 to 22.06.2016. He produced at Exbt.8 the original passbook of his account of SBI, Udaipur branch for the period between 08.05.2014 to 10.03.2018. He stated that the transactions mentioned in his deposition were made through his bank account in SBI, Udaipur branch. 4. In the cross examination he admitted that he does not pay income tax. He did not know the Khatian number of the land of the rubber plantation. He had not seen the rubber plantation. He had not obtained agreement for sale from the accused. Neither in the complaint nor in the demand notice he had mentioned the specific dates of payments of different amounts which had now been stated by him in the examination-in-chief. He had not obtained receipts of payments made to the accused. He agreed that out of the total sum he had paid Rs.1,50,000/- through two different cheques of Rs.50,000/- and 1,00,000/- respectively. He denied that the accused had given the cheque in question as security for advancing the loan amount of Rs.1,50,000/- which he had misused for filing the present complaint. 5. The complainant had examined the Branch Manager of UBI, Udaipur branch as P.W.2. His evidence was limited to the presentation of the cheque for realization and its dishonour for insufficiency of funds. He had also produced at Exbt.10 authenticated transaction inquiry report of the bank account of the complainant for the period between 01.01.2013 to 28.05.2015. The postmaster of Udaipur Head Office was examined as P.W.3 to show the service of demand notice on the accused. 6. The accused chose not to enter the witness box. He had also produced at Exbt.10 authenticated transaction inquiry report of the bank account of the complainant for the period between 01.01.2013 to 28.05.2015. The postmaster of Udaipur Head Office was examined as P.W.3 to show the service of demand notice on the accused. 6. The accused chose not to enter the witness box. The learned Judge recorded his statement under Section 313 of Cr.P.C. in which the defence taken by him was that he had not borrowed the sum of Rs.8,00,000/- from the complainant. He denied having issued the cheque in question. In his further statement he also stated that he had never taken any loan from the complainant. Being a colleague and having good relation the complainant would frequently visit his house during which : 'somehow he got my signed blank cheque and misused it.' 7. On the basis of such evidence the learned Magistrate came to the conclusion that the charge against the accused is not established. He did record that the accused had not disputed his signature on the cheque or that the cheque was not issued from his bank account. The learned Judge also referred to the rebuttable presumption referred to in Section 139 of the NI Act with respect to the dishonoured cheque. However, on the assessment of evidence on record, the learned Magistrate was of the opinion that the accused had rebutted such presumption and that the complainant had not established the charge. The learned Judge was impressed by the facts that the complainant was not paying income tax, that he had not verified the land records of the rubber plantation of the accused nor had he seen it himself nor any agreement to sale was executed nor receipts of money paid were obtained. The learned Judge referred to the bank passbooks of the complainant Exbt.6 and 7 and came to the conclusion that the withdrawals from the said passbook do not match with alleged cash payments made by the complainant to the accused as per his deposition. He found the case of the complainant that such a large sum of Rs.8,00,000/- was paid for sale of the rubber plantation and to repay which sum the accused had given the said cheque, not believable. 8. Appearing for the complainant learned counsel Ms. R. Purkayastha submitted that the trial Court has committed a serious error in acquitting the accused. He found the case of the complainant that such a large sum of Rs.8,00,000/- was paid for sale of the rubber plantation and to repay which sum the accused had given the said cheque, not believable. 8. Appearing for the complainant learned counsel Ms. R. Purkayastha submitted that the trial Court has committed a serious error in acquitting the accused. The complainant had produced necessary evidence to establish his case. The accused did not dispute his signature on the cheque nor disputed having received at least a sum of Rs.1,50,000/- by cheque. In the further statement recorded by the Magistrate he put up a weak defence of the complainant having found a signed blank cheque from his house which he had misused. The accused had not dislodged the presumption referred to in Section 146 of the NI Act. 9. On the other hand, learned counsel Mr. Samarjit Bhattacharjee appearing for the accused opposed the appeal contending that the learned Magistrate has given valid reasons for acquitting the accused. The complainant had put up an unbelievable theory of payment of Rs.8,00,000/- for purchase of rubber plantation. The complaint did not have means to make such large payments. No agreement to sale was executed. Complainant admitted that he had neither verified the documents nor seen the rubber plantation. No payment receipts were admittedly obtained. 10. Section 138 of the NI Act as is well known makes punishable and prescribes punishment for the offence of dishonour of cheque. It provides that where any cheque drawn by a person on an account maintained by him for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank, such person shall be deemed to have committed an offence and be punishable with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both. 11. 11. Section 139 of the NI Act provides that 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. This Section thus provides for a rebuttable presumption that the holder of cheque received the cheque for discharge of any debt or other liability. The onus would be on the accused to rebut such presumption. In the present case, on the basis of evidence on record, it would be necessary to decide whether such presumption was rebutted. 12. The complainant in his deposition had stated that in different installments he had paid a total of Rs.8,00,000/- to the accused between 07.01.2012 to 10.06.2016, of which two payments of Rs.50,000/- and Rs.1,00,000/- were through cheque. The rest were in cash. These payments were made for purchase of a rubber plantation of the accused. When the complainant reminded him about the transfer of the property he refused to do so and instead issued the cheque in question returning the amount of Rs.8,00,000/-. 13. In the cross-examination of the complainant the suggestion made by the accused was that the said cheque was issued as a security for advancing the loan of Rs.1,50,000/- by the complainant which cheque the complainant had misused. In such cross-examination no suggestion was made by the defence that the cheque in question was blank cheque, undated or without indicating any figure. The accused did not enter the witness box. In his statement under Section 313 of Cr.P.C. he stated that he had never taken any loan from the complainant. The complainant was his friend since they were working together. The complainant used to visit his house frequently, somehow he got his signed blank cheque and misused it. 14. This theory quite apart from being completely unbelievable, also does not confirm to the stand taken by the accused in the cross-examination of the complainant. As noted, in the cross-examination he admitted that he had received a sum of Rs.1,50,000/- from the complainant which he stated was by way of loan. The cheque in question was obtained by way of security for repayment of the said sum. The accused has thus taken completely contradictory stand about the origination of the cheque and the possession of the cheque by the complainant. The cheque in question was obtained by way of security for repayment of the said sum. The accused has thus taken completely contradictory stand about the origination of the cheque and the possession of the cheque by the complainant. Even this suggestion in the cross-examination that the cheque was obtained towards security for repayment of loan amount of Rs.1,50,000/- stands falsified from the evidence on record. The sum of Rs.1,50,000/- was paid through two cheques dated 20.09.2013 and 23.12.2013 of Rs.50,000/- and Rs.1,00,000/- respectively. The cheque in question is dated 18.09.2017. The accused had not suggested in the cross-examination that the cheque for security was blank and undated. It thus defies logic that for a sum of Rs.1,50,000/- loaned by the complainant to the accused in the year 2013, by way of security a cheque of Rs.8,00,000/- was issued by the accused on 18.09.2017. His both the defences, i.e. taken in the cross-examination of the complainant and in the further statement recorded by the learned Magistrate are unacceptable. They are self contradictory and falsified from the evidence on record. If as stated by him in his further statement complainant had found his blank signed cheque from his house, question would be why he did not file complaint of missing cheque. Most natural reaction of a person in such a situation would be to take such a stand at the earliest opportunity which would be upon receipt of notice of cheque bouncing. In genuine case of such a nature the payer would immediately take such defence in the reply to the notice. The accused gave no reply to the notice. Even in the cross-examination of the complainant he raised no such defence. 15. The learned Magistrate was much influenced by the theory of the complainant not having the means to make such advances, completely forgetting that a sum of Rs.1,50,000/- was paid through cheques which the accused accepted having received and never claimed that the same was repaid. The complainant had also produced the bank passbooks and statements for the relevant period of his accounts in United Bank of India and the State Bank of India. A glance that some of the entries would immediately show that there was sizable cash withdrawals by the complainant from such accounts from time to time. The complainant had also produced the bank passbooks and statements for the relevant period of his accounts in United Bank of India and the State Bank of India. A glance that some of the entries would immediately show that there was sizable cash withdrawals by the complainant from such accounts from time to time. For example, during the period between 03.01.2015 to 03.06.2015 he had made following withdrawals from his account in United Bank of India. Date Amount 06.01.2015 Rs.20,000/- 08.01.2015 Rs.15,000/- 09.01.2015 Rs.10,000/- 15.01.2015 Rs.5,000/- 31.01.2015 Rs.15,000/- 09.02.2015 Rs.10,000/- 09.02.2015 Rs.5,000/- 20.02.2015 Rs.10,000/- 07.04.2015 Rs.15,000/- 17.04.2015 Rs.40,000/- 05.05.2015 Rs.10,000/- 03.06.2015 Rs.10,000/- 03.06.2015 Rs.20,000/- 16. Such large withdrawals would certainly not be needed for household expenditure. These withdrawals are mentioned only by way of samples and there are other withdrawals also from the other account. The theory that being a Group-D employee the complainant did not have sufficient means to make such advances is thus falsified. 17. It is true that the complainant had not obtained payment receipts nor executed agreement of sale. However, when the accused does not dispute his signature on the cheque, does not dispute having received at least part of the amount from the complainant which he says was by way of loan, shows no proof of return of such amount, takes stands which are contradictory and seemingly not plausible about the issuance of the cheque, the presumption under Section 139 of the NI Act cannot be stated to have been rebutted. In fact such presumption gets reinforced on the basis of evidence on record. The learned Magistrate thus committed a serious error in acquitting the accused. His acquittal is, therefore, reversed. He is convicted for offence punishable under Section 138 of the NI Act. 18. Since this is a case of an acquittal being converted into one of conviction it would be appropriate to hear the accused on sentence. Let the accused remain present in Court on the next date of hearing for the purpose of hearing him on the sentence that should be imposed. 19. List the matter on 19th March 2020. Learned counsel for the accused will communicate him this order.