TaxTMI 
TaxTMI 
2016 (5) TMI 1551
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....y the learned Chief Judicial Magistrate, Dibrugarh in C.R. Case No. 444C/2005 under Section 138 of the Negotiable Instruments Act, 1881 (in short, "N.I. Act"). The learned trial Court had sentenced the respondent to undergo simple imprisonment for a period of 1(one) month and to pay a fine of Rs. 1,50,000/-, as compensation, to the complainant and in default, simple imprisonment for 6(six) months. The learned appellate Court, on appeal, set aside the impugned judgment and acquitted the respondent. 3. In the complaint petition filed by the appellant herein, it was stated that the respondent is a contractor and on 28.11.2002, he came to the house of the complainant and requested to advance him a sum of Rs. 2,00,000/-, as he was in urgent n....
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....se was lodged against them by the accused. He had also stated that he had transactions with the accused. He had denied the suggestion given that the accused had paid back the amount payable under Exhibit-1 agreement. 5. PW-2 is the bank official, who deposed with regard to insufficiency of amount in the bank account of the accused. PW-3 is an advocate, who deposed with regard to drafting of the Agreement (Exhibit-1). 6. In his evidence as DW-1, the accused person stated that Basistha Ojha had introduced him to the complainant and that Basistha Ojha used to arrange funds, operated the bank accounts and cheque book was also retained by him. He stated that he used to sign cheques so that money could be withdrawn for urgent works when he ....
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....g Senior Manager of the United Bank of India and he proved Exhibit-A and Exhibit-B demonstrating that the complainant had received payment of Rs. 1,00,000/- vide cheque No. 562437 dated 22.02.2003 and Rs. 1,00,000/- vide Cheque No. 562488 dated 28.02.2003. 8. It appears that during pendency of the appeal before the learned Sessions Judge, a petition was filed by the complainant under Section 311 Cr. PC and under Section 165 of the Evidence Act. In the said petition, it was stated that the accused was paid Rs. 3,00,000/- by 2(two) cheques on 23.08.2002 and Rs. 2,00,000/- by cash on 24.08.2002. The learned Sessions Judge had rejected the said petition while allowing the appeal filed by the accused person. 9. Mr. Saikia has submitted tha....
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..... It will be appropriate to quote Sections 138 and 139 of the N.I. Act, which are as follows:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from 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 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....
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....viz.: (i) That there is a legally enforceable debt; (i) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (i) That the cheque so issued had been returned due to insufficiency of funds. 30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same ha....
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....e warranted. 15. From the evidence on record, it is clear that the complainant came to know the accused/respondent only from the year 2002. It is not in dispute that a sum of Rs. 2,00,000/- in cheque was paid on or about 3(three) months from the date of execution of the Exhibit -1 agreement. Neither in the notice nor in the complaint, the complainant referred to the payment of such amount by the respondent. The appellant had not taken a plea that prior to execution of Exhibit-1 agreement, there had been other previous transactions. The edifice and foundation of the legally enforceable debt, as projected by the complainant, is based on Exhibit-1. Because of payment of Rs. 2,00,000/- through cheque as well as payment of cash amount of Rs. ....