Research › Search › Judgment

Tripura High Court · body

2022 DIGILAW 129 (TRI)

Tapan Kr. Saha v. Balai Chandra Das

2022-03-15

T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - Heard Mr. B.N. Majumder, senior learned counsel assisted by Mr. S. Lodh, learned counsel appearing for the petitioner. Also heard Mr. Raju Datta, learned counsel appearing for the respondent. 2. Before this matter is taken up for hearing, an endeavour was taken before the Lok Adalat for reconciliation of the dispute, but for stiff resistance, the dispute could not be settled. The petitioner filed a complaint under Section-138 of the NI Act against the respondent, which was registered as NI 67 of 2016 against the accused-respondent. The judgment was challenged before the Appellate Court, where the judgment of the trial Court was upheld. Hence the petitioner/complainant preferred this present revision petition. Be that as it may, the fundamental grounds taken in this petition for challenging judgment and order dated 05.08.2019 delivered in Criminal Appeal No. 28(2) of 2017, by the learned Addl. Sessions Judge, Gomati Judicial District. 3. The facts which set the criminal law in motion, in short, are that the accused-Sri Balai Ch. Das is the friend of Sri Raju Saha, son of complainant and had good relation with the complainant and for his urgent necessity has taken loan of Rs. 30,00,000/- from the complainant with a condition to return the same within 1st week of June, 2016 but, after expiry of the period, the accused-respondent failed to pay the money and on repeated request and approach, lastly on 08.07.2016, the accused-respondent issued a cheque vide No. 610769 of Rs. 30,00,000/- drawn on State Bank of India, Udaipur Branch from Account No. 30062030020 to indemnify the debt of accused-respondent and on 13.07.2016 the complainant deposited the said cheque for collection of the amount in his Account No. 21210110006573 at UCO Bank, Udaipur Town Branch but, on the same day the said cheque was returned due to insufficient fund in the account of the accused-respondent and on 04.08.2016 the complainant issued demand notice by registered post with A/D and accused received the said notice on 17.08.2016 but, failed to pay the money. 4. As complainant file complaint petition supporting by affidavit, for which, complainant is not examined under Section-200 of Cr. 4. As complainant file complaint petition supporting by affidavit, for which, complainant is not examined under Section-200 of Cr. PC and being satisfied that there is prima facie sufficient materials to proceed against the accused, cognizance was taken and process was issued upon the accused and on receipt of the notice accused appeared before the Court and after observing all formalities the accused was examined under Section-251 of Cr. PC for the commission of offence punishable under Section-138 of I.I. Act but pleaded not guilty and claimed to be tried 5. After closure of the evidence of the complainant, the accused-respondent examined under Section-313 Cr. PC and the incriminating materials against the accused is read over and explained to the respondent in Bengali and reply and answers to accused-respondent is accordingly recorded and the accused-respondent asserted to adduce evidence. 6. During the course of trial, the learned Court below has framed three points for determination as follows: (i) Whether the accused Sri Balai Chandra Das on 08.07.2016 issued the cheque No. 610769 for Rs. 30,00,000/- (Rupees thirty lakhs) only in favour of complainant in discharge of his debt and liability? (ii) Whether on 13.07.2016 while the cheque No. 610796 dated 08.07.2016 was presented to the U.C.O. Bank, Udaipur it was dishonored by bank due to insufficient fund in the account of the accused? (iii) Whether the accused even after receipt of the notice of the complaint did not return the money and did not make arrangement of sufficient fund in his account to make the transaction good and to honour the cheque? 7. At the time of trial, the petitioner adduced as many as three witnesses and exhibited seven documents. Whereas, the respondent-accused defended his case on the basis of six defence witnesses and exhibited four documents. 8. After the trial, the learned Chief Judicial Magistrate, Gomati Udaipur, vide judgment dated 27.05.2017, in case No. (NI) 67 of 2016, acquitted the respondent of offence punishable under Section-138 of the Negotiable Instrument Act, 1881 (NI Act, for short). 9. Being aggrieved and dissatisfied by the aforesaid judgment, the petitioner herein filed an appeal before learned Addl. Sessions Judge, Gomati Judicial District, Udaipur and after hearing the counsel for the parties and observing the findings held by the learned Chief Judicial Magistrate in NI 67 of 2016, upheld the judgment and acquitted the accused-respondent. 9. Being aggrieved and dissatisfied by the aforesaid judgment, the petitioner herein filed an appeal before learned Addl. Sessions Judge, Gomati Judicial District, Udaipur and after hearing the counsel for the parties and observing the findings held by the learned Chief Judicial Magistrate in NI 67 of 2016, upheld the judgment and acquitted the accused-respondent. Situated thus, the petitioner herein has preferred this present petition. 10. Mr. Lodh, learned Counsel appearing for the petitioner has submitted that the Learned Trial Court without appreciating the evidence on record acquitted the accused-respondent and also failed to shift the burden on the accused-respondent to rebut the presumption under Section-139 of the NI Act when the accused-respondent admitted his signature on the cheque. It was further argued that the Learned Trial Court ought to have held that the accused-respondent failed to rebut the presumption when the Learned Court observed that the matter of investment of money by Raju Saha and his giving a cheque as security could have been entered in the agreement. It was also argued that the defence plea regarding addition of new partner namely, Raju Saha could not be proved by any valid document because Exhibit-A was not properly executed when all the partners did not sign thereon. 11. Mr. Lodh, learned counsel again pointed out that the Learned Trial Court did not consider the evidence of the accused-respondent regarding his issuing of a cheque bearing No. 687209 dated 08.01.2017 for Rs. 2,50,000/- and had the trial Court considered execution of such cheque the Judgment would have been passed in favour of the complainant-appellant because the accused-respondent never disclosed that he issued more than three cheques. It was also pointed out that the observation of the Learned Trial Court that the complainant-appellant did not mention the date, time, place and mode of lending money in his complaint or in his evidence, was also not based on record because PW. 2 and P.W. 3 specifically stated that the complainant-appellant paid Rs. 30,00,000/- to the accused-respondent on 12.04.2015. 12. Mr. R. Datta, learned counsel appearing for the respondent-accused has submitted that the accused-respondent successfully rebut the burden under Section-139 of the NI Act by impeaching the financial capacity of the petitioner and his witnesses. 2 and P.W. 3 specifically stated that the complainant-appellant paid Rs. 30,00,000/- to the accused-respondent on 12.04.2015. 12. Mr. R. Datta, learned counsel appearing for the respondent-accused has submitted that the accused-respondent successfully rebut the burden under Section-139 of the NI Act by impeaching the financial capacity of the petitioner and his witnesses. He also pointed out that the fact of inclusion of the son of the petitioner as a partner in Bricks Industry was proved when Raju Saha, admitted his signatures in the register of Tripureshwari Brick Industry. It was the argument of the counsel for respondent that if Raju Saha was not a partner in Brick Industry then why he signed in registers of that Industry. 13. He countered the submission of the learned counsels for the petitioner that Exhibits-A and D were not executed properly, by submitting that though all the partners did not sign in Exhibit-A but, that did not mean that Raju Saha was not added as partner and on admission of Raju Saha regarding his signatures in the registers. It could be safely held that Raju Saha was one of the partners of the Brick Industry. 14. Before going to decide the disputed questions involved in this petition, it will be apposite to refer to the relevant provisions of the N.I. Act and relevant case laws. 'Section-139 of the NI Act though empowers a Court to draw a presumption in favour of the holder of the cheque but such presumption is rebuttable in nature and the accused may rebut such presumption either by adducing direct evidence in Court or by impeaching the credibility of the complaint petition and evidence. There is no dispute that the standard of proof while rebutting the presumption under Section-139 of NI Act is not so high like complainant who is required to prove his case beyond all reasonable doubt and the accused can show mere preponderance of probabilities in his favour.' 15. Section-118 provides for presumptions as to negotiable instruments. Section 118 is as follows: 118. Section-118 provides for presumptions as to negotiable instruments. Section 118 is as follows: 118. Presumptions as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made: (a) Of consideration--that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) As to date--that every negotiable instrument bearing a date was made or drawn on such date; Again S. 139 N.I. Act speaks about Presumption in favour of holder and it says 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.' 16. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. In Hiten P. Dalal v. Bratindranath Banerjee, it was held at Paras. 22 and 23: '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. 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. 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.' 17. In Krishna Janardhan Bhat v. Dattatraya G. Hegde, the Hon'ble Apex Court held that an Accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. Following was laid down in Paragraph No. 32: '32. An Accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An Accused has a constitutional right to maintain silence. Standard of proof on the part of an Accused and that of the prosecution in a criminal case is different'. This Court again reiterated that whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. In paragraph No. 34, following was laid down: 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies'. 18. In the case in hand, the accused-respondent to rebut presumption under Section-139 NI Act adduced evidence in defence in addition to cross-examining the complainant witnesses. Before discussing the rebuttal evidence of accused-respondent it is necessary to have a look on the complaint case, as well as, evidence. 19. It was the case of the petitioner that being in good relationship accused-respondent borrowed Rs. Before discussing the rebuttal evidence of accused-respondent it is necessary to have a look on the complaint case, as well as, evidence. 19. It was the case of the petitioner that being in good relationship accused-respondent borrowed Rs. 30,00,000/- from the complainant about one year back on condition to return the same within first week of June, 2016 and on 08.07.2016 upon approach of the petitioner accused issued a cheque bearing No. 610769 dated 08.07.2016 but the same was returned dishonoured on the ground of insufficient fund in the account of the accused and even after receipt of demand notice accused failed to pay the cheque amount. 20. In evidence, the petitioner reiterated the same thing but in cross-examination he stated that he was doing the business of flex printing but he had no PAN Card nor paid any income tax. It was also suggested to him that as no money was paid to accused-respondent so he did not mention in his petition, notice and in examination-in-chief as to the fact of date, time, place and name of the persons before whom he paid money to the accused-respondent, mode of delivery and his capacity to pay. 21. PW. 2 Sujay Bhadra in his evidence-in-chief reiterated the evidence of PW. 1 regarding borrowing of money by the accused-respondent and his issuing a cheque in favour of the complainant-appellant and his failure to pay the cheque amount even after dishonour of cheque. PW. 2 introduced in his evidence-in-chief the date of borrowing of money by the accused-respondent, his handing over Rs. 5,00,000/- to the complainant-appellant and handing over of Rs. 12,00,000/- to the complainant by Raju Saha and the final payment of Rs. 30,00,000/- to the accused-respondent. 22. PW. 3 namely, Raju Saha the son of the petition in his evidence also corroborated the evidence of PW. 2 but, in cross-examination he stated that he never paid income tax and so he was suggested that he had no capacity to pay Rs. 12,00,000/- to his father. 23. In the case in hand, the petitioner alleged that he paid Rs. 30,00,000/- to the accused-respondent but he did not mention the date of payment nor he stated the name of persons before whom he paid such huge amount of money. He also did not state in his evidence or in his petition that before payment of Rs. 23. In the case in hand, the petitioner alleged that he paid Rs. 30,00,000/- to the accused-respondent but he did not mention the date of payment nor he stated the name of persons before whom he paid such huge amount of money. He also did not state in his evidence or in his petition that before payment of Rs. 30,00,000/- to accused-respondent he had to procure Rs. 5,00,000/- from PW. 2 and Rs. 12,00,000/- from PW. 3. The petitioner also did not submit any paper or document showing his payment of Rs. 30,00,000/- to the accused-respondent. 24. Section-3 of the Evidence Act says that 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 under circumstances of a particular case, ought to act upon the supposition that it exists. It is quite improbable that a person lend a huge sum of money of Rs. 30,00,000/- to another without any document and in absence of any witness. It also looks strange that a person after borrowing money from other persons, lend money to another without any document, any interest and in absence of any witness. A prudent person and especially when he is a businessman, before lending money to other would execute a legal document and he shall always pay in presence of witnesses to secure his payment. The petitioner is a businessman and it is next to impossible that he would pay a huge sum of Rs. 30,00,000/- to accused-respondent after borrowing Rs. 17,00,000/- from other persons and even without any interest and in absence of any document and witness. Thus, the payment of Rs. 30,00,000/- by the petitioner is not found to be believable. 25. The complainant having stated that he had no PAN card nor paid any income tax, shows that the complainant never exceeded his earning beyond the minimum limit of income prescribed by the Income Tax Authority, and thus it was impossible for the complainant to pay cash money of Rs. 13,00,000/- by himself and Rs. 17,00,000/- by borrowing from others. 26. In this case the complainant did not submit his annual turnover to show his financial capacity nor did he produce his bank account statement to show that he had requisite fund at the time of payment. PW. 13,00,000/- by himself and Rs. 17,00,000/- by borrowing from others. 26. In this case the complainant did not submit his annual turnover to show his financial capacity nor did he produce his bank account statement to show that he had requisite fund at the time of payment. PW. 2 also failed to show his financial capacity to pay Rs. 5,00,000/- to the complainant. PW. 3 stated that he was a Government employee but he never paid any income tax and the same shows that his annual income never exceeded the minimum slab prescribed by the Income Tax Authority and in such situation it was impossible for him to pay cash money of Rs. 12,00,000/- to his father for handing over of Rs. 30,00,000/- to the accused-respondent. Thus, according to this Court the accused by cross examination of the complainant and his witnesses, was successful in shaking the evidence regarding the payment of Rs. 30,00,000/- to the accused-respondent. Keeping aside the defence evidence the accused also remained successful in creating doubt in the case of the complainant regarding the payment of Rs. 30,00,000/-. 27. To prove such defence one person, namely, Joybrata Aich in his evidence stated that he was one of the partner of Tripureswari Brick Company and accused was made a partner in 2015 and thereafter in place of accused Raju Saha was made partner after a meeting held on 28.07.2015 and in that respect a document was executed which was marked as Exhibit-A. He also identified his signature as well as signature of Raju Saha. He also produced the original partnership deed which was marked as Exhibit-B and also produced power of attorney (Exhibit-C). Again he produced copy of agreement between Pulin Datta, Amal Das and accused by which accused and Amal Ch. Das were made as partners. He also stated that at present accused was not partner because Raju Saha was made partner in place of the accused. 28. It reveals from the record that DW-2 delivered blank cheque to Raju Saha in presence of Sanjoy Neogi and Amal Das and on 28.07.2015 Raju Saha was made partner by Exhibit-A agreement but thereafter he did not return the blank cheque. 28. It reveals from the record that DW-2 delivered blank cheque to Raju Saha in presence of Sanjoy Neogi and Amal Das and on 28.07.2015 Raju Saha was made partner by Exhibit-A agreement but thereafter he did not return the blank cheque. He again stated that letters of Raju Saha used to come in his name at his address and accused used to receive the same and hand over to Raju Saha and similarly he also received the demand notice but knowing the contents of the demand notice he lodged F.I.R. He again stated that he had friendly monetary transaction with Raju Saha and on 14.02.2015 he paid Rs. 60,000/- to him by cheque No. 610768' and on 14.03.2015 he also paid Rs. 2,80,000/- to Raju Saha by cheque No. 610772'. In cross-examination he admitted that he did not sign in Exhibit-A but he admitted his signature on a cheque shown to him bearing cheque No. 687209' and so he was suggested that he issued cheque shown to him, in presence of Sanjoy Neogi and Amal Das in his house. Again he stated that he took Rs. 2,50,000/- from Raju Saha on 21.11.2014 and he subsequently paid the same. 29. It was the argument of the learned counsel appearing for the petitioner that Raju Saha was never admitted into the partnership business nor accused was substituted by Raju Saha in the partnership business nor Raju Saha invested any money in the partnership business. It was also contended that had Raju Saha invested any money in to the partnership business or had he entered into the partnership business in place of accused Balai Das then definitely such terms and conditions would have found place in Exhibit-A but such terms and conditions were not available in Exhibit-A and according to the Learned Counsel the story of investment of money by Raju Saha and story of substitution of accused by Raju Saha in the partnership business was false. 30. To decide the aforesaid contention of the learned counsel for the petitioner I find that Raju Saha in his cross-examination specifically admitted his signature and entry in the register of Tripureswari Brick Company. 30. To decide the aforesaid contention of the learned counsel for the petitioner I find that Raju Saha in his cross-examination specifically admitted his signature and entry in the register of Tripureswari Brick Company. Having admitted the signature by Raju Saha in the register of Tripureswari Brick Company it was quite impermissible for Raju Saha to raise the plea that he was not at all admitted in the partnership business because Raju Saha failed to explain as to how his signatures came into the register of Tripureswari Brick Company. Moreover, signature of Raju Saha in Exhibit-A was not denied, rather, it was pleaded that the signature of Raju Saha was procured in blank stamp paper and subsequently converted into Exhibit-A. 31. This submission of the learned counsel cannot be sustained because on bare perusal of Exhibit-A it appears that on last 28.07.2015 a meeting was held and in that meeting a decision was taken for admitting Raju Saha, Amal Das and Smti. Dibyanjali Das into the partnership business and thereafter the stamp was purchased subsequently on 24.08.2015 and the terms and conditions of meeting held on 28.07.2015 were reduced to the form of an agreement. This Court is of the opinion that when Raju Saha admitted his signature in the register of Tripureswari Brick Industry, as well as, in Exhibit-A then there should not be any confusion regarding admission of Raju Saha as a partner in the Tripureswari Brick Industry simply because of the fact that all the partners did not sign into Exhibit-A. 32. The question regarding the insertion of all the terms and conditions in respect of investment of money in the partnership business by Raju Saha, as well as, his admission in the partnership business in place of accused-respondent, has least bearing in the instant case in view of admission of signature by Raju Saha in Exhibit-A, as well as, in register of Tripureswari Brick Industry. 33. During hearing it was pointed out by the learned counsel appearing for the petitioner that the accused-respondent in cross-examination admitted his signature on a cheque bearing No. 687209 and so according to the learned counsel it was the cheque which the accused issued in presence of Sanjoy Neogi and Amal Das in his house and the basis of such submission was that the accused only spoke about two cheques and he never stated that he issued three cheques. But such submission has also no substance because the accused in his evidence clearly stated that he issued a blank cheque bearing No. 610769 in presence of Sanjay Neogi and Amal Das and the cheque showed to the accused was relating to cheque No. 687209. As the accused in a criminal case is only supposed to show preponderance of probabilities so according to this Court the accused remained successful in creating doubts in the case of the prosecution. 34. It appears quite improbable that a person without any benefit lend a huge sum of money amounting to Rs. 30,00,000/- to a person without any document. Being a businessman also it is not expected from the complainant to pay such huge money to the accused. It is also evident from cross-examination of accused that he took Rs. 2,50,000/- from Raju Saha on 21.11.2014 and he subsequently also paid the same to Raju Saha. 35. In the case in hand, the petitioner did not produce statement of account of his business and it is natural presumption that a businessman always keeps his accounts maintained by inserting debit, credits and had the complainant paid such a huge amount definitely he would have entered such debit in his Books of Accounts and so non production of Books of Accounts by the complainant implies that no such amount was paid by the complainant to the accused. 36. With above discussions and observations, it is crystal clear that the accused Balai Chandra Das, accused-respondent remained successful in discharging his burden as is required under Section-139 of the N.I. Act and so the learned Trial Court rightly acquitted the accused. Since the petitioner herein has failed to make out his case before the Courts below, this Court has no hesitation to say that in the revision, appreciation of the factual issues is not permissible. 37. Accordingly, the instant revision petition is dismissed affirming the judgment and order dated 05.08.2019 passed by learned Addl. Sessions Judge, Gomati Judicial District, Udaipur, in case No. Criminal Appeal. 28(2) of 2017.