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2022 DIGILAW 189 (TRI)

Sushil Chandra Paul v. Runu Debbarma

2022-04-12

ARINDAM LODH

body2022
JUDGMENT Arindam Lodh, J. - Heard Mr. S. Lodh, learned counsel appearing on behalf of the appellant. Also heard Mr. S. Ghosh, learned Addl. P.P. appearing on behalf of the respondent No. 2 and Mr. S. Bhattacharjee, learned counsel for respondent No. 1. 2. This appeal arises from the Judgment of acquittal dated 30.09.2019 passed by the learned Judicial Magistrate First Class, Khowai, Khowai Judicial District in connection with the case No. N.I. 13 of 2017 whereby and whereunder the accused, respondent No. 1 herein, was acquitted from the charge leveled against him under Section 138 of the N.I. Act. 3. The facts of the case as projected by the learned trial court, herein, are as under: i. On 18.05.2016 accused Runu Debbarma took friendly loan for an amount of Rs. 2,00,000/- (Two lakhs) in cash from the complainant Sri Sushil Paul in presence of witnesses as he need money for the treatment of his wife outside state on the condition that shortly he would make the payment of the credit since he would avail a loan from bank. At the time of taking the loan the accused put a condition that after three months from the date as per demand of the complainant, the accused would be bound to repay the said entire loan. After elapse of the said three months the accused did not make payment of the loan to the complainant. On 04.08.2017 the accused had issued a cheque No. 718883 to the complainant for Rs. 2,00,000/- drawn on United Bank of India, Khowai Branch in presence of witnesses. Subsequently, the complainant deposited the said cheque in his banker State Bank of India, Khowai Branch in his account being No. 30706667243 for collection of the said amount from the concerned bank. But the cheque had been returned to the complainant with the endorsements 'Fund insufficient' since the accused failed to provide sufficient funds in his account being No. 0263010123464. The matter of dishonor of cheque was informed by the banker of the complainant on 23.08.2017 through a written communication. On 31.08.2017 complainant sent a lawyer's notice to the accused Runu Debbarma, but, the accused did not communicate or pay the said loan amount to the complainant. Then, the complainant filed a criminal complaint against the accused under Section 138 of the N.I. Act. ii. On 31.08.2017 complainant sent a lawyer's notice to the accused Runu Debbarma, but, the accused did not communicate or pay the said loan amount to the complainant. Then, the complainant filed a criminal complaint against the accused under Section 138 of the N.I. Act. ii. The accused appeared before the court on 13.03.2018 after receiving summons from the court and he was examined under section 251 of Cr.P.C. by this court on 27.04.2018 wherein he pleaded innocence and claimed to be tried. iii. During trial, the complainant, in support of his case examined himself as P.W. 1, Shri Narayan Bhattacharjee as PW 2, Sri Dipak Modak as PW 3 and Sri Ahmed Ali Alfrad as PW 4 and exhibited the following documents:- a. Exhibit-1:-Check bearing No. 718883, dated 04.08.2017 issued by Runu Debbarma in favour of the complainant. b. Exhibit-2:-Pay slip of S.B.I. c. Exhibit-3:-Return memo dated 23.08.2017 issued by the U.B.I., Khowai. N.I. 13 of 2017. d. Exhibit-4:-Lawyers notice dated 31.08.2017 to accused Runu Debbarma (in 3 pages). e. Exhibit-5:-Postal Receipt of Register Post. f. Exhibit-6:-Acknowledgement Due Card received by accused Runu Debbarma. g. Exhibit-7:-Agreement of money landing between the complainant and the accused. h. Exhibit-7/1 & Exhibit-7/2:-Signatures of the complainant on Exhibit-7. i. Ext. 7/3:-Signature of PW 2 on the agreement of money landing between Sushil and accused Runu Debbarma. j. Ext. 7/4:-Signature of PW3 on the agreement of money landing between Sushil and accused Runu Debbarma. k. Ext. 8:-Agreement as a whole written by PW 4. l. Ext. 8/1:-Signature of PW 4 on the agreement. iv. After the examination of witnesses of the complainant, the accused was examined under section 313(1)(b) of the Cr.P.C. to which he denied all the allegations labeled against him and also declined to adduce evidence on his behalf. 4. Having heard learned counsels appearing for the parties, and after considering the oral and documentary evidences, the learned trial court held that the complainant, appellant herein could not establish the fact of his enforceable debt to the accused, and thus, acquitted the respondent No. 1, Sri Runu Debbarma. 5. I have gone through the judgment of the learned trial court. 6. Before adverting to the merits of the case, I would like to say the settled legal proposition regarding the cheque bounce case. 5. I have gone through the judgment of the learned trial court. 6. Before adverting to the merits of the case, I would like to say the settled legal proposition regarding the cheque bounce case. It is settled that unless contrary is proved, it shall be presumed that the accused issued the cheque in discharge of his liability in whole or in part of any debt to the holder of the cheque. The burden is on the accused to rebut the presumption. It is to be seen, in the instant case, as to whether the accused has been able to rebut the presumption which initially is in favour of the appellant-complainant. 7. Mr. Lodh, learned counsel appearing on behalf of the appellant-complainant has argued that the respondent No. 1, Sri Runu Debbarma had taken a loan of Rs. 2 lakhs from the appellant for treatment of his wife. The appellant had paid the said sum of Rs. 2 lakhs to the respondent No. 1 on a condition that he would shortly make the repayment of the said amount by way of availing loan from his banker. At para 2 of the complaint, the appellant (herein after referred to as the complainant), has stated that at the time of taking the loan the accused put a condition that after three months from the date as per the demand of the complainant, the accused would be bound to repay the said entire loan. However, on frequent demand, the respondent ultimately, had issued a cheque being No. 718883, dated 04.08.2017 in liquidation of his liability to the complainant for Rs. 2 lakhs on U.B.I., Khowai Branch in presence of witnesses. The complainant deposited the said cheque in his bank i.e. S.B.I., Khowai Branch in his account bearing No. 30706667243 for collection of the said amount from the concerned bank of the respondent No. 1, but, it was intimated that the cheque was returned/dishonored on account of 'insufficiency of fund' in the account of the respondent. Mr. Lodh, learned counsel has further submitted that, thereafter, the complainant maintained all legal formalities, and lastly, due to the failure of repayment of the sum of Rs. 2 lakhs, the complainant had filed the instant complaint. Mr. Mr. Lodh, learned counsel has further submitted that, thereafter, the complainant maintained all legal formalities, and lastly, due to the failure of repayment of the sum of Rs. 2 lakhs, the complainant had filed the instant complaint. Mr. Lodh, learned counsel has also submitted that the respondent did not deny his signature in the cheque, which is sufficient to establish the fact that the respondent had issued the cheque in favour of the complainant in discharge of his liability to pay his due debt to the complainant. Mr. Lodh, learned counsel has also drawn my attention to a written memorandum executed on 18.05.2016 (Exbt-8) wherein it was categorically written that the respondent had taken loan of Rs. 2 lakhs from the complainant, and it would be repaid within three months. According to learned counsel for the complainant, the said written document aptly proves the plea of the complainant that he paid Rs. 2 lakh to the complainant as loan. 8. On the other hand, Mr. S. Bhattacharjee, learned counsel appearing on behalf of the respondent No. 1 submitted that the respondent had lost the relevant Cheque Book, Pass Book as well as ATM Card on 26.05.2017. He made thorough search of the Cheque Book, Pass Book and the ATM Card, and ultimately, on 28.08.2017 he intimated the missing of those articles to the Officer-in-Charge of Khowai Police Station and the matter was entered vide GD entry dated 28.08.2017. Mr. Bhattacharjee, learned counsel has expressed his serious doubt over the integrity of the document (Exbt-8), and has submitted that this document (Exbt.-8) goes to the root of the case. Mr. Bhattacharjee, learned counsel for the respondent has also submitted that the respondent wanted to take rent in the house of Sri Sushil Chandra Paul, the complainant herein and he approached one Narayan Bhattacharjee (PW 2) for a rented premise in the house of Sushil Chandra Paul, and to execute a rent agreement, the respondent handed over some blank semi papers to said Narayan Bhattacharjee, who was an agent of 'Sahara Company' and was requesting the respondent to invest in 'Sahara Company', but, the respondent could not invest any sum of money with 'Sahara Company' as per request of said Narayan Bhattacharjee. It is further submitted that, Sri Sushil Chandra Paul had invested some money in the said 'Sahara Company' at the request of said Narayan Bhattacharjee. According to Mr. It is further submitted that, Sri Sushil Chandra Paul had invested some money in the said 'Sahara Company' at the request of said Narayan Bhattacharjee. According to Mr. Bhattacharjee, learned counsel for the respondent, said Narayan Bhattacharjee later on informed the respondent that there was no vacant premise in the house of Sri Sushil Chandra Paul to give on rent. Thereafter, the respondent demanded return of those semi-papers carrying his signatures, but, Narayan Bhattacharjee told him that he lost those semi-papers. Thereafter, the respondent came to know from the notice served upon him by Sri Sushil Chandra Paul that he issued a cheque to Sri Sushil Chandra Paul for recovery of Rs. 2 lakhs out of his debt, and thereafter, he lodged a complaint case against Sri Sushil Chandra Paul and Sri Narayan Bhattacharjee under Section 379 of the Indian Penal Code in the court of learned Judicial Magistrate First Class, Khowai Judicial District, Khowai, Tripura. Learned counsel for the appellant has eloquently submitted that both Sri Sushil Chandra Paul and Narayan Bhattacharjee were in connivance with each other to lodge the instant complaint against the respondent. 9. I have considered the submissions of the learned counsels appearing for the parties as well as I have perused the documents introduced by the parties in support of their respective pleas. 10. It is settled proposition of law that in a case under Section 138 of the N.I. Act, the complainant gets the benefit of presumption under Section 118-A and 139 of the N.I. Act, but, it does not mean that undue benefit will be given to the complainant. It is also equally settled that a complainant in a case under Section 138 of the N.I. Act has to establish his case beyond reasonable doubt, and the accused has to prove his case following the doctrine of preponderance of probabilities. 11. At the outset, I have noticed that the written memorandum which was scribed by one Ahmed Ali Alfrad was executed on 18.05.2016 (Exbt-8) appears not to be an agreement, but, it is a kind of promissory note, where it appears that the respondent had given an undertaking that he would repay the loan amount of Rs. 2 lakhs to the complainant within three months. 2 lakhs to the complainant within three months. After close scrutiny of the original document (Exbt-8), I find that both Sri Sushil Chandra Paul i.e. the complainant and Runu Debbarma i.e. the respondent herein have put their signatures on the top of the pages, but, though it is a kind of an undertaking, the declarant i.e. the promisor did not put his signature at the end of the recitals i.e. at the concluding part of the write-ups. 12. The original document has been written in Bengali language, and, I find discrepancies in the translation of the said agreement while preparing the Paper Book by the registry of this court. In the Bengali version, I do not find any such language that it is a 'deed of agreement' and in the concluding part there is difference between the expressions in the translated copy and the original copy written in Bengali language. In the Bengali language it is written that 'In the circumstances, I consciously and in good health and mind, without any coercion from anyone, execute this written undertaking putting my signature'. From the contents of the document I reiterate that it is clear that it is not an agreement, but, it is a kind of 'declaration'/'promissory note' given by the respondent. It is further noticed that though the document was introduced in course of the evidence, surprisingly, there is no whisper in the complaint as regards the existence of the said declaration. There is no signature of the respondent at the bottom of the said declaration. The signature of the complainant as well as the scribe of the said document appeared to be signed and written by the same ink and pen, but, the signature of the respondent No. 1 appears to be of different ink and pen. Though, it is not mandatory that the signature of the writer has to be of the same ink, but, in the context of the case, these circumstances have led this court to suspect the said document (Exbt.-8) and this court has reason to question the very integrity in execution of the said document. Moreover, there is overwriting in mentioning the date of execution of the said document. Initially, it appears to be written as 10.05.2016', but, later on, by way of overwriting, it appears to be written as 18.05.2016'. 13. Moreover, there is overwriting in mentioning the date of execution of the said document. Initially, it appears to be written as 10.05.2016', but, later on, by way of overwriting, it appears to be written as 18.05.2016'. 13. These inconsistencies as are surfaced in the said declaration i.e. Exhibit 8 have led this court to draw adverse inference against the genuinity of the execution of the said document (Exbt-8). Moreover, the scribe in his cross-examination has stated that he did not identify anybody who signed this document (Exbt-8). That apart, most interestingly, the complainant deposing as PW 1, in his cross-examination, has stated that 'I do not know whether I have submitted written document or any agreement'. It transpires that the complainant and the respondent No. 1 had a friendly relationship, but, being confronted with cross-examination, the complainant as PW 1 stated that he had no idea about the family members of the respondent No. 1, and furthermore, he had no idea about the house of the respondent No. 1 where he resides. I have also scrutinized about the fact as to who purchased the stamp but it is not clear who purchased the stamp. 14. The aforesaid factors point fingers towards the truthfulness of the claim of the complainant that he has any enforceable debt to the respondent No. 1. The inconsistencies apparent on the face of the declaration/hand-note hit the very genus of the case as to whether the respondent No. 1 had actually fetched loan of Rs. 2 lakh from the complainant. Non-denial of the signature of the owner of the cheque will not always prove of the drawer's liability of repayment of his debt to the drawee i.e. holder of the cheque. The holder of the cheque to establish the legally enforceable debt, must adduce evidence in plain, clear and unambiguous terms to shift the onus to the accused i.e. the owner of the cheque. In absence of such evidence, the accused need not lay evidence to disprove the claim of the complainant i.e. holder of the cheque. 15. In my opinion, in the instant case, though the respondent No. 1 has not adduced any evidence, but, he has been able to rebut the initial presumption that he had issued the cheque in discharge of his liability to repay his debt to the complainant. 15. In my opinion, in the instant case, though the respondent No. 1 has not adduced any evidence, but, he has been able to rebut the initial presumption that he had issued the cheque in discharge of his liability to repay his debt to the complainant. Moreso, learned trial court has acquitted the accused, the respondent No. 1 herein, and on such acquittal there is double presumption of the innocence of the respondent No. 1. It is settled law that if the view as taken by learned trial court is a reasonably possible view, in that case, the appellate court should not disturb it just because it feels that another view of the matter is possible. It is equally settled that an order of acquittal will have to be disturbed if it is perverse. Bearing in mind of the aforesaid principles and after close scrutiny of evidences and records as discussed herein above, I am unable to record that the findings of the Ld. trial court are perverse. 16. In the light of above, I do not find any ground to interfere with the judgment returned by the Ld. Trial court, and, thus the appeal stands dismissed. Send down the LCRs.