TaxTMI 
TaxTMI 
2021 (3) TMI 284
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....38 of the Negotiable Instruments Act(N.I. Act for short), 1881. 3. Prosecution case, briefly put, is as under:- 3(1). On account of friendship, the complainant had accommodated the respondent-accused(here-in-after referred to as 'respondent') a sum of Rs. 50,000/-(Rupees fifty thousand) on 20.09.2014 and Rs. 1,00,000/-(Rupees one lakh) on 19.10.2014, in total Rs. 1,50,000/-(Rupees one lakh fifty thousand). It is the specific plea of the complainant that he made such payment to the respondent in presence of the witnesses. 3(2). The complainant further claimed that towards repayment of the said amount, the respondent had issued two cheques, bearing No.740950 dated 20.09.2014 for a sum of Rs. 50,000/-(Rupees fifty thousand) and No.740949 for a sum of Rs. 1,00,000/-(Rupees one lakh) in favour of the complainant. The said two cheques were drawn on UBI, Ambassa Branch. When the cheques were presented for encashment through SBI, Ambassa Branch, the same was dishonored with the endorsement 'insufficient fund' in the concerned account of the respondent. 3(3). The complainant, thereafter, issued a statutory notice by registered post with A/D on 15.11.2014 through his learned advocate dem....
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....rue to my knowledge. 2. That, since I had long relation with the Accused Person/Opposite party I did not feel it necessary to execute any document with reference to the said payments of Rs. 50.000/-(Rupees Fifty thousand only). And another amount of Rs-100,000/-(One Lac only) These are true to my knowledge 3. That, I am a businessman by profession and being in need of money in connection with my business I requested the Accused Person/Opposite party in the 1st week of November 2014, for refunding the said borrowed amounts as I was in dire need of money. The accused person assured me and told me you please deposit the cheques bearing No-740950 dated- 20/09/2014 an amounting of Rs-50.000/-(Fifty Thousands Only) and another cheque bearing No-740949 dated- 19/10/2014 an amounting of Rs-100.000/-(One Lac Only), on submission of the same in the account it would be duly honoured and advised me to encash the same from his account." 3(7). Thereafter, the complainant stated that he deposited the said two chqeues to his bankers, but by a return memo the bankers stated that the cheque amount could not be en-cashed due to "insufficient fund". That led the complainant to issue the demand noti....
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.... would not come into the purview of Section 138 of the N.I. Act. 6. I have considered the rival submissions of the learned counsels appearing for the parties and also taken note of the documents produced by the parties before the trial Court. The respondent had adduced evidence as DW1 and also produced another witness, namely Ratan Hari Debbarma, who adduced evidence as DW2. I have also taken note of the reply given by the respondent at the time of his examination under Section 313 of CrPC. In reply to question No.13, the respondent has stated thus: "Once I gave a cheque to PW-1 on his assurance that he would provide us an old car to launch driving school through NGO. In the meantime, I noticed his activity is not satisfactory; hence I did not proceed further with that plan. He told(sic) me that the said cheque went missing. but later, he brought false allegation of this(sic) case." 7. In his evidence, the respondent as DW1 had stated that he was involved in an NGO which used to undertake various development works in different places of Tripura, and the complainant being a Mechanic was engaged as a Site Manager with that NGO to open a Driving School and two blank cheques were s....
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.... 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 returned by the bank unpaid, either because of the amount of money standing returned by the bank unpaid, either because of the amount of money standing 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished 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: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the pay....
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....fective on a future date. 11. Keeping in view the date of advancing the loan and the date of issuance of the cheques, in my opinion, those cheques i.e. Exbt.1/A and Exbt.1/B were issued as a security cheque to meet up the future liability, which might have been occurred on failure of repayment of loan in the month of November, 2014. 12. Be that as it may, in my opinion, nature of transaction shows that the loan was given only after issuance of cheques by the respondent. In other words, the complainant provided the loan after obtaining the cheques from the respondent. The above justifies that the cheques were taken by the complainant as a security cheque to advance the loan and not against any existing or past legal enforceable debt. Therefore, the cheques issued by the respondent shall not be treated as a cheque issued towards discharging any past or existing liability. 13. The deposition of PW2, Sri Dilip Dey further substantiates the fact that the complainant had received the cheques of Rs. 50,000/- and Rs. 1,00,000/- "at the time of payment". In furtherance thereof, I find that the complainant failed to disclose the source of fund. He did not furnish any evidence in support of....