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2021 DIGILAW 197 (TRI)

Raju Saha v. Balai Chandra Das

2021-11-09

S.TALAPATRA

body2021
JUDGMENT This appeal under Section 378 of the Cr.P.C. arises from the judgment and order of acquittal dated 12.06.2018 delivered in Case No.CR(NI) 11 of 2017 by the Judicial Magistrate, 1st Class, Court No.2, Udaipur, Gomati District. 02. The appellant filed the complaint which was registered as case No.CR(NI)11 of 2017, alleging that the respondent borrowed money from him on 21.11.2014 and the said money was paid to the respondent by a cheque bearing No.149938 drawn on State Bank of India, Udaipur Branch. The amount that was lent has been claimed to be Rs.2,50,000/-. The respondent needed that amount for purpose of his business, but the complainant has admitted in his complaint that the respondent is a Government employee. According to the complainant (the appellant herein), the said money was obtained as loan by exercising fraud on him. The said amount of Rs.2,50,000/- was encashed by the respondent on 24.11.2014. The said amount was collected through the respondent’s savings bank Account No.30062030020 maintained in the State Bank of India, Udaipur Branch. On several times, the complainant requested the respondent for repayment of the said loan. Finally, on 26.04.2015, the respondent issued a cheque bearing No.687209 in presence of one Sanjoy Neogi and Amal Das. In the complaint, it has been alleged that ‘At the time of issuing the said Cheque the accused person did not write the date of issue of the said cheque and requested the complainant to deposit it as and when the accused person intimate to the complainant to deposit. As per the request of the accused person, the complainant put the date on the cheque on 08.01.2017 and deposited it on 21.03.2017 to State Bank of India, Udaipur Branch through S.B account vide no.11410606413 of the complainant for encasing it. But very unfortunately the bank authority return the said Cheque on 21.03.2017 with a return memo stating that the said cheque vide no.687209 could not encash(sic.) due to fund insufficient and returned the said original cheque along with letter and reason for return to the complainant stating interalia, that due to the account found funds insufficient in the account of the accused vide No.300620030020, State Bank of India, Udaipur Branch, the said cheque was dishonoured.’ 03. It has been also asserted that on 27.03.2017 the complainant (the appellant herein) issued a notice by registered post on the respondent demanding payment of the cheque amount to the extent of Rs.2,50,000/- within 15(fifteen) days from the date of receipt of the demand notice, failing which legal action would be taken against the respondent. It has been further asserted that the said demand notice was received by the respondent on 29.03.2017. It has been stated in the complaint that initially the complainant had requested the respondent to make payment of the cheque amount but he did not make any payment. Thereafter, the said notice dated 27.03.2017 was issued. But, as the respondent did not make payment of the cheque amount within the stipulated time or at all the complainant was persuaded to institute the complaint as according to him the respondent has clearly committed an offence punishable under Section 138 of the Negotiable Instrument Act. The cognizance was accordingly taken and the process was issued. The respondent denied the statement of accusation by stating that the said cheque was not issued for discharging any legally enforceable debt or liability of payment. The complainant adduced three witnesses including him and introduced 11(eleven) documents including the demand notice [Exbt.9] and the original cheque bearing No.687209[Exbt.1]. The respondent has also adduced two witnesses including him and introduced 19(nineteen) documentary evidence [Exbt.A-Exbt.S] including the reply to the demand notice [Exbt.G]. 04. The trial judge after recording the evidence, examined the respondent under Section 313 of the Cr.P.C. During the said examination the respondent has clearly stated that he handed over a blank cheque. The respondent had categorically stated that he had taken loan of Rs.2,50,000/- from the complainant with condition that he would repay the same within six months for which he gave a cheque to the complainant. Before the expiry of six months, he had paid a sum of Rs.60,000/- and Rs.2,80,000/- by two cheques respectively dated 14.02.2015 and 14.03.2015. But the complainant kept that cheque of Rs.2,50,000/-, which was absolutely a security cheque, with him and did not return the same to the respondent. The respondent has categorically stated that he had paid the loan that he had taken from the complainant and therefore, there was nothing due to be paid by the respondent. 05. But the complainant kept that cheque of Rs.2,50,000/-, which was absolutely a security cheque, with him and did not return the same to the respondent. The respondent has categorically stated that he had paid the loan that he had taken from the complainant and therefore, there was nothing due to be paid by the respondent. 05. The trial judge, having appreciated the evidence that was brought on record has observed in the judgment dated 12.06.2018 that the respondent has produced evidence stating that he has given the cheque as security to the complainant and the same has been misused. The respondent had taken a loan of Rs.2,50,000/- at 10% monthly interest from the complainant with a condition to return the same within a period of six months. According to the respondent, he has repaid the amount of Rs.2,50,000/- in two installments by the cheque bearing No.610768 dated 14.02.2015 for an amount of Rs.60,000/- and by the cheque No.610772 dated 14.03.2015 for an amount of Rs.2,80,000/- [Exbt.R and Exbt.S respectively]. Both those cheques were encashed by the complainant. 06. CW-01 in his cross-examination has confirmed that as per his entry in the pass book on 14.02.2015 Rs.60,000/- was debited vide the cheque No.610768 and on 14.03.2015 Rs.2,80,000/- was debited vide the cheque bearing No.610772 from the account of the respondent. It has been observed by the trial judge that if those two cheques were not in discharge of the liability of payment of his debt, as the respondents, the complainant did not deal anything about the same in his complaint nor during the examination-in-chief. He did not have any explanation why those two cheques bearing No.610768 and 610772 were issued in his favour by the respondent. Thus, an inference has been drawn that the complainant had received the loan amount to the extent of Rs.2,50,000/- but later on, in order to harass the respondent, he has instituted the said case falsely. Thus, the story of the complainant was completely disbelieved by the trial judge and hence, the respondent was acquitted from accusation of committing offence punishable under Section 138 of the NI Act. The said judgment has been challenged in this appeal. 07. Mr. B. N. Majumder, learned senior counsel, assisted by Mr. Thus, the story of the complainant was completely disbelieved by the trial judge and hence, the respondent was acquitted from accusation of committing offence punishable under Section 138 of the NI Act. The said judgment has been challenged in this appeal. 07. Mr. B. N. Majumder, learned senior counsel, assisted by Mr. R. Saha, learned counsel has submitted that the foundation of that observation, based on which the impugned judgment of acquittal has been passed, is unsustainable inasmuch as the complainant has established that the cheque which has been dishonoured was issued by the respondent. Therefore, under Section 139 of the Cr.P.C., the presumption has to be drawn that the respondent had liability of discharging legally enforceable debt and in order to discharge the said liability, he had issued the cheque which has been dishonoured for insufficiency of fund. According to Mr. Majumdr, learned senior counsel, the finding of the trial judge in respect of the two cheques dated 14.02.2015 and 14.03.2015 is perverse and those two cheques [Exbt.10) does not have any relevance with the liability vis-a-vis the cheque that has been dishonoured [Exbt.1]. In support of his contention, Mr. Majumder, learned senior counsel has referred to the testimony of PW-1 [Bikash Kr. Gupta]. The said witness is the Assistant Manager of the State Bank of India, Udaipur Branch. PW-1 has corroborated the statement that the cheque amounting to Rs.2,50,000/- as issued by the complainant was issued by the respondent. Mr. Majumder, learned senior counsel has further stated that the story as narrated by the respondent in the reply [Exbt.G] is a cock and bull story and there cannot be any reason to believe the same in order to rebut the presumption under Section 139 of the NI Act. 08. Mr. Majumder, learned senior counsel has referred a decision of the apex court in M.S. Narayana Menon alias Mani vs. State of Kerala and Another reported in (2006) 6 SCC 39 where the apex court has having referred to the provisions of Section 118 and Section 139 of the NI Act has restated the law as enunciated by the apex court in Bharat Barrel & Drum Mfg. Co. vs. Amin Chand Payrelal reported in (1999) 3 SCC 35 . In Bharat Barrel & Drum Mfg. Co. Co. vs. Amin Chand Payrelal reported in (1999) 3 SCC 35 . In Bharat Barrel & Drum Mfg. Co. (supra) it has been observed as follows: “Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt.” [Emphasis added] 09. There is no equivocality. It is not required that the accused shall always advance the evidence to disprove the existence of consideration. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which the complainant relies. For the purpose of rebutting the initial evidential burden, the defendant can rely on the direct evidence or the circumstantial evidence or a presumption of law of fact once such convincing rebuttal evidence is adduced and accepted by the Court. For the purpose of rebutting the initial evidential burden, the defendant can rely on the direct evidence or the circumstantial evidence or a presumption of law of fact once such convincing rebuttal evidence is adduced and accepted by the Court. Having regard to all the circumstances of the case and preponderance of probabilities, the evidential burden shifts back to the complainant. At that juncture, the presumption under Section 118 does not again come to the complainant's rescue. In this backdrop, Mr. Majumder, learned senior counsel has submitted that the respondent has totally failed to rebut the presumption. 10. Having considered all the circumstances of the case and preponderance of probabilities, the evidential burden shifted back to the complainant. At that juncture, the presumption under Section 118 does not again come to the complainant’s rescue. In this backdrop, Mr. Majumder, learned senior counsel has submitted that the respondent has totally failed to rebut the presumption. 11. Mr. Majumder, learned senior counsel has referred a Gauhati High Court decision in Jose Pullan @ Joseph P vs. Uma Jasrasaria [the judgment dated 27.04.2011 delivered in Crl Revn (SH) 33 (SH) 2009]. In that case, Gauhati High Court has on a similar issue, observed that the question to be determined in such circumstances is whether the materials available on record are sufficient to hold that the respondent has successfully rebutted the presumption or not. 12. In reply, Mr. R. Datta, learned counsel appearing for the respondent (the accused) has stated that the trial judge has correctly observed that since the complainant failed to give proper explanation in respect of payment of those two cheques [Exbt-10], the version of the respondent is liable to be accepted on the standard of preponderance of probabilities. Mr. Datta, learned counsel has as well relied on Jose Pullan @ Joseph P (supra) and M.S. Narayana Menon alias Mani (supra) to contend that law has been laid down in respect of coming to a finding based on the presumption under Section 118 and Section 139 of the NI Act and rebuttal thereof. In these decisions, it has been enunciated what nature of evidence for purpose of rebuttal is expected to be relied on by the accused person. 13. Mr. In these decisions, it has been enunciated what nature of evidence for purpose of rebuttal is expected to be relied on by the accused person. 13. Mr. Datta, learned counsel has referred to a few decisions of the various high courts on the similar point i.e. presumption under Section 118 and 139 of the NI Act, read with Section 114(g) of the Indian Evidence Act. According to Mr. Datta, learned counsel, the onus of proof is not as heavy on the accused as that is on the prosecution. In M.S. Narayana Menon alias Mani (supra), the apex court has observed as follows: “We in the facts and circumstances of this case need not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The Appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act.” [Emphasis added] 14. According to Mr. Datta, learned counsel, in this case also the cheque which the complainant had deposited for encashment was for purpose of security and hence, he cannot be held to have issued in discharge of any legally enforceable debt. It is the clear case of the respondent that nothing is due and the cheque was issued by way of security. Mr. Datta, learned counsel has drawn attention of the court to the fact that in the reply [Exbt.G] to the notice sent by the complainant on 12.05.2017, the said episode has been deliberately omitted from the complaint. It is the clear case of the respondent that nothing is due and the cheque was issued by way of security. Mr. Datta, learned counsel has drawn attention of the court to the fact that in the reply [Exbt.G] to the notice sent by the complainant on 12.05.2017, the said episode has been deliberately omitted from the complaint. In the reply, the respondent has taken a categorical stand in para-2, which reads as under : “On 14.03.2015 A.D, I gave a cheque of Rs.2,80,000/- comprising the borrowed amount of Rs.2,50,000/- and 10 percent interest on it and the cheque number is 610772(SBI). Therefore, I cleared the amount of Rs.2,50,000/- borrowed from your client and 10% interest on it. When I cleared the said amount, I wanted back the cheque bearing No.687209 given as security and agreement paper, your client said that when the belongings were being brought from Khowai, the said cheque and agreement paper went untraced and assured to return it just when it would be found. But till date, your client has not returned the cheque and stamp paper of agreement. Instead of returning it, he wrote the dates of present time and took recourse to falsehood for realizing money in an unjust manner and gave the notice. During my state of unemployment, I used to run the business of selling bricks in the market after purchasing bricks from the Tripureswari Bricks Company (TBC), Bampur, Amarpur by depositing money in advance. Till March, 2015 A.D, I had an arrear of Rs.10,10,000/- (Rupees ten lakh ten thousand) to be realized from the said TBC bricks field. Therefore, the share-holders of the company engaged a new shareholder of the company at a meeting held on 07.03.2015 A.D. Since I a government employee, I proposed to quit the share of the TBC bricks field and your client Shri Raju Saha being highly interested proposed to me for being shareholder of the said company in place of mine. He said that if I made him the share-holder of the said company in place of mine, he would clear the amount of Rs.10,10,000 (Rupees ten lakh ten thousand), an arrear to be realized from the company, within next two years. I agreed to his proposal and since I had a brotherly relationship with your client, I did not make any deed done in this regard. I agreed to his proposal and since I had a brotherly relationship with your client, I did not make any deed done in this regard. Thereafter, I talked to the other share-holders of the TBC bricks field and through hard effort, persuaded them to make your client share-holder instead of mine. They said that decision would be made following a meeting with all the share-holders of the company. In 2015-16 A.D, the said company being in need of money, all the share-holders were required to pay a certain amount of money. But since I had no capacity to pay the money, your client Shri Raju Saha, by being the share-holder of the company, agreed to pay the money. But the responsibility of making him the share-holder of the said company would have to be borne by me. Because of good relationship, I became agree. Then your client Shri Raju Saha demanded a blank cheque as security. On 26.04.2015 A.D, I gave a signed blank cheque bearing No.610769(SBI) to your client Shri Raju Saha, Excepy my signature, the spaces meant for the name of the bearer, date, amount of money were blank. After taking responsibility of making your client a shareholder of the company in place of mine I gave the blank cheque to your client as a security.” 15. It has also been categorically stated in the said reply that the respondent had given a blank cheque to the complainant as security, see para-5 of the reply dated 12.05.2017 [Exbt.G]. According to Mr. Datta, learned counsel, the complainant has in order to cause harm to the respondent deposited the security cheque for payment. He was not entitled to do so as that was purely a security cheque. That apart, he knew that there was no legally enforceable debt to be recovered from the respondent [the accused]. 16. This court has given an anxious consideration to the submission of the learned counsel for the parties and also perused the records. It appears that in the complaint [the appellant] did not make any mention regarding the reply filed by the respondent. That apart, the complainant has said in the cross-examination about the payment made by the respondent by two cheques. The complainant (PW-3) has testified as follows: “The said cheque was bearers cheque by which I had to withdraw Rs.60,000/- from the account of Balai and delivered the cash to him. That apart, the complainant has said in the cross-examination about the payment made by the respondent by two cheques. The complainant (PW-3) has testified as follows: “The said cheque was bearers cheque by which I had to withdraw Rs.60,000/- from the account of Balai and delivered the cash to him. It is not a fact that Balai did not give me bearers cheque to withdraw Rs.60,000/- and give the cash to him. It is true that on 14.03. 2015 Balai had issued a cheque bearing No.610772 amounting to Rs.2,80,000/- in my favour. (WV: The said cheque was given as a bearers cheque and I withdrew the said amount and gave it to Balai in cash.” But he did not mention why the said amount by two cheques were paid. Payment made by the complainant after encashing those cheques is absurd cannot be believed by any prudent person. 17. DW-1 however has testified supporting version of the respondent. 18. On overall appreciation of the evidence, this court finds no infirmity in the finding returned by the trial judge that if those two cheques were not in discharge of the liability of the accused person of his debt as stated by the accused person [the respondent] then, why those cheques were issued. The complainant did not mention anything about that episode of issuance of two cheques in his complaint petition or during the examination-in-chief. He did not even explain why those two cheques bearing No.610768 and 610772 were given to him by the accused person. His explanation is fragile and amounts to failure in explaining the episode properly. The respondent [The accused person] has made out a probable case that there was no enforceable debt against him and that he was under no obligation/liability to make payment. It appears more probable that the cheque that has been dishonoured is a security cheque. Therefore, the order of acquittal does not warrant any interference. In the result, this appeal stands dismissed. Send down the LCRs forthwith.