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2022 DIGILAW 176 (TRI)

Gautam Saha v. State of Tripura

2022-04-05

ARINDAM LODH

body2022
JUDGMENT Arindam Lodh, J. - Heard Mr. J. Debbarma, learned Counsel appearing for the appellant as well as Mr. A. Acharjee, learned counsel appearing for the respondent 2. Also, heard Mr. S. Debnath, learned Additional PP appearing on behalf of the respondent No. 1. 2. This appeal arises out of the judgment and order of acquittal dated 19.11.2019 passed by learned Judicial Magistrate 1st Class, Udaipur, Gomati Tripura in Case No. CR (NI) 32 of 2018. 3. Briefly stated, what is emanated from the complaint that the respondent No. 2, herein, requested the complainant on 20.05.2018 to provide him a sum of Rs. 2 lakh only as loan. Initially, the complainant was little bit hesitant, but, later on, on further request from the part of respondent No. 2, he paid Rs. 2 lakh to him. The respondent No. 2 assured the complainant that he would return the said amount of money to him within two months from that date. It is the further plea of the complainant that the respondent No. 2 also has given a written declaration on a stamp paper of Rs. 10/- (rupees ten) only stating that he would return the amount of Rs. 2 lakh only within two months from the date i.e. from 20.05.2018 in presence of one Sri Ranjan Dutta of Bodarmokam, Udaipur. Since, the money was not repaid, the complainant had deposited the cheque of Rs. 2 lakh on 28.07.2018 in the account of respondent No. 2 lying with the Axis Bank Ltd., Udaipur Branch, vide S.B. A/c No. 913020015728723 through his bank i.e. Tripura Gramin Bank, Udaipur Branch, but, the cheque was dishonoured with a remark of the Branch Manager of Tripura Gramin Bank, Udaipur Branch, stating 'ACCOUNT CLOSED', which means that the respondent No. 2 had already closed his account. Thereafter, the complainant sent a demand notice to the respondent No. 2 which was also received by him, and the respondent No. 2 had replied to the said notice denying the allegations levelled against him. Thereafter, under compelling circumstances, the complainant filed the present complaint under Section 138 of the Negotiable Instruments Act. 4. The learned trial court had taken cognizance of the complaint of the complainant. The respondent No. 2 had appeared and contested the complaint of the complainant-appellant. Thereafter, under compelling circumstances, the complainant filed the present complaint under Section 138 of the Negotiable Instruments Act. 4. The learned trial court had taken cognizance of the complaint of the complainant. The respondent No. 2 had appeared and contested the complaint of the complainant-appellant. At the commencement of trial, the accused was examined under Section 251 Cr.P.C. and the substance of accusation under Section 138 of the NI Act was read over and explained to the accused to which pleaded not guilty and claimed to be tried. To establish his case, the complainant had adduced 4 (four) witnesses. The respondent No. 2 has adduced his evidence as DW-1. He has also produced another witness, namely, Sri Rupak Debnath, who deposed as DW 2. After closure of recording of evidences, the respondent-accused was examined under Section 313 Cr.P.C. where he denied all the allegations levelled against him and claimed that those statements were false. Thereafter, having heard the learned counsels appearing for the parties, the learned trial court held that the complainant has failed to establish the fact that he had any enforceable debt to the respondent No. 2, and accordingly, dismissed the complaint acquitting the respondent No. 2. Being aggrieved, the complainant has preferred the instant appeal before this court. 5. Mr. J. Debbarma, learned counsel appearing for the appellant has submitted that the learned trial court erroneously held that the complainant had no enforceable debt to the respondent No. 2. Mr. Debbarma, learned counsel has submitted that Section 139 of the Negotiable Instrument Act, 1881 clearly stipulates that presumption of enforceable debt is always in favour of the complainant when the signature of the owner of the cheque is not denied. In the instant case also, according to Mr. Debbarma, learned counsel, the respondent No. 2, the borrower of the loan has not denied his signature on the cheque. Mr. Debbarma, further submitted that the respondent No. 2, who was an accused of the case, failed to rebut presumption for the reason that it has been proved from the ledger of the bank (Esbt.-9) that the respondent No. 2 had issued the cheque on a date when he had no account in the concerned bank i.e. Axis Bank Ltd. Mr. Debbarma, further submitted that the respondent No. 2, who was an accused of the case, failed to rebut presumption for the reason that it has been proved from the ledger of the bank (Esbt.-9) that the respondent No. 2 had issued the cheque on a date when he had no account in the concerned bank i.e. Axis Bank Ltd. Mr. Debbarma, learned counsel has pressed into service the decision of the Hon'ble Supreme Court passed in Rangappa v. Sri Mohan, reported in (2010) 11 SCC 441 ; Uttam Ram v. Devinder Singh Hudan and Anr., reported in (2019) 10 SCC, 287; N.A. Issac v. Jeemon P. Abraham and Anr., reported in 2004 Legal Eagle (BOM) 1299. 6. Resisting the aforesaid submissions of Mr. Debbarma, learned counsel for the appellant, Mr. A Acharjee, learned counsel appearing on behalf of the respondent No. 2 has submitted that it is true that presumption of enforceable debt will be in favour of the holder of the cheque if the signature of the cheque is not denied by the issuer of the cheque, but, that presumption is rebuttable as contemplated under Section 118(a) of the NI Act as well as under Section 139 of the said Act. According to Mr. Acharjee, learned counsel for the respondent No. 2, in the instant case, the accused-respondent No. 2 has successfully rebutted the evidence let in by the complainant that the complainant had an enforceable debt to the accused-respondent No. 2. Mr. Acharjee, learned counsel has drawn my attention to the fact that, there is one common fact in the instant case as regards that both the complainant and the respondent No. 2 have deposed that at the time of giving the cheque there was a written declaration given by the respondent No. 2 on a stamp paper of Rs. 10/-. Only distinction is that the complainant has said that such written declaration was given by the respondent No. 2 for taking loan of Rs. 2 Lakh, which according to the respondent No. 2, he had given a written declaration on a stamp paper for borrowing a loan of Rs. 50,000/-. But surprisingly, the complainant, according to learned counsel for the appellant, did not produce the said written declaration for the reasons best known to him. 7. 2 Lakh, which according to the respondent No. 2, he had given a written declaration on a stamp paper for borrowing a loan of Rs. 50,000/-. But surprisingly, the complainant, according to learned counsel for the appellant, did not produce the said written declaration for the reasons best known to him. 7. In the light of the above submissions, I have gone through the records as well as the judgment passed by the learned trial Judge. The learned trial Judge has suspected the case of the complainant on the ground that the complainant has failed to adduce any evidence that he had any transaction with the respondent No. 2 after 2012. Learned trial court also held that the complainant has failed to establish that he had enforceable debt to the respondent No. 2. The learned trial court also disbelieved the case of the complainant on the ground that the complainant has suppressed the written declaration without any explanation, which was the best evidence to substantiate the exact date and time as well as the quantum of loan, the respondent No. 2 had borrowed from the complainant. Learned trial court has relied upon the case of Gopal Krishnaji Ketkar v. Md. Hazi Latif and others, reported in AIR 1968 SC 1413 wherein the Hon'ble Supreme Court held that 'a party who is in possession of best evidence which would throw light on the issue in controversy withhold such evidence, then adverse inference under section 114 g of the Evidence Act ought to be drawn against such a party inspite of the fact that the onus of proof may not lie on. The Hon'ble Apex Court re-iterated this in the case of Ritesh Chakarvati v. State of MP reported in (2006) 12 SCC 321 . Also, in the case of Vijoy Kumar v. Laxman and others reported in (2013) 3 SCC 86 , the Hon'ble Apex Court has had drawn adverse inference against the prosecution, due to non-examination of a vital witness by the prosecution and has upheld the acquittal of the respondent'. 8. I concur with the opinion of the learned trial judge that oral evidence can be manufactured and that is why if a transaction is created in writing, then, the written document must be produced. 8. I concur with the opinion of the learned trial judge that oral evidence can be manufactured and that is why if a transaction is created in writing, then, the written document must be produced. I have also taken note of the fact that the respondent No. 2, being the accused, supported the version of the complainant that he had given a written declaration on a stamp paper, but, it was only for borrowing a loan of Rs. 50,000/- and not for borrowing Rs. 2 lakh as according to respondent No. 2 he had never taken such loan from the complainant. In furtherance thereof, I do not find any wrong with the findings of the learned trial court as to why the complainant had suppressed the said written declaration when it could have been the best evidence to substantiate his allegation that the respondent No. 2 had borrowed Rs. 2 lakh from him in the year 2018. That apart, the respondent No. 2 has categorically stated that he repaid Rs. 50,000/- to the complainant which was also corroborated by DW-2, Rupak Debnath, and further evident from the money receipt. 9. In view of the above, I am of the opinion that the view taken by the learned trial court is a possible and probable view. As such, the view of the learned trial court should not be disturbed, particularly, when it is a case of acquittal when the presumption of innocence in favour of the accused gets further reinforced or fortified. 10. On overall consideration of the evidences and materials on record and the legal aspects as enunciated by the Hon'ble Supreme Court, as stated supra, I do not find any ground to interfere with the findings of the learned trial court in acquitting the accused from the charge levelled against him. 11. Accordingly, the appeal stands dismissed. Send down the LCRs.