TaxTMI 
TaxTMI 
2021 (7) TMI 310
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.... of the Negotiable Instrument Act, 1981 (for short N.I. Act). In case No. NI 107 of 2008 the petitioner was sentenced to a fine of Rs. 15,00,000/- with default stipulation and in case No. N.I 113 of 2008 she was sentenced to a fine of Rs. 20,00,000/- with default stipulation [2] The petitioner filed separate criminal revision petitions against the impugned judgment passed by the learned Sessions Judge which were numbered as Crl. Rev. P.No.6 of 2021 and Crl. Rev P. No.7 of 2021. Facts and law being same in both the petitions, the said petitions are taken up together for disposal by this common judgment. [3] Factual background of the cases are as under: In Crl. Rev. P. No.06 of 2021: Respondent No.1 herein being complainant filed a complaint under Section 138 N.I Act and Section 420 IPC in the Court of the Chief Judicial Magistrate, West Tripura, Agartala on 28.06.2008. The said respondent, a registered partnership firm, was represented by its constituted attorney. It was alleged in the complaint that the firm was engaged in various businesses as a planner, developer and contractor. The accused (present petitioner) was engaged in manufacturing bricks and the name of her c....
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....[5] In the course of trial complainant examined its attorney namely, Sri Sekhar Ch. Podder as PW-1, Sri Babul Majumder, an officer of the State Bank of India of its Kunjaban Branch as PW-2, the Manager of the Agartala Branch of UCO Bank as PW-3 in both the cases. In case No. N.I 107 of 2008, complainant introduced as many as 16 documents including the dishonoured cheque (Exbt.4) in original, the return memo issued by the bank (Exbt.5) etc. Similarly, in N.I 113 of 2008 besides adducing the oral evidence of three PWs, complainant introduced as many as 17 documents including the bounced cheque in original (Exbt.4), the cheque return memo (Exbt.6) etc. [6] After the recording of prosecution evidence was over, trial Court examined the accused under Section 313 Cr. P.C in both the cases separately. In her reply, in case No. N.I. 107 of 2008 accused did not deny the cheque. It was stated by her that she issued a blank cheque to the complainant. About the agreements she stated that she signed those agreements without going through the contends of those agreements. She also desired to adduce evidence on her defence. Similarly, in case No. N.I 113 of 2008, during her examination under Se....
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....f accused, on and from the dated mentioned in those cheques. Thus, as per said term, the complainant was entitled to deposit the cheque dated 30.4.2008 on that date itself on failure by the accused to deliver the demanded goods. Thus, the argument from the side of accused that before the extended period of 30.5.2008, the cheque of Rs. 15 lakh was illegally deposited in the Bank on 30.4.2008 is not acceptable and more so, said issue was earlier raised before Hon'ble High Court was also not accepted. Anyway, in NI 113 of 2008, the cheque dated 30.5.2008 was proved as Ext.4 and bank intimation slip was proved as Ext.6 which shows that said cheque was dishonoured with comment "Refer to drawer" and as per counterfoil of deposit voucher (Ext.5), it was deposited on 30.5.2008. On Bank Official namely Mr. Babul Majumder was examined in that case as PW.2 who stated that the maximum limit of the account of said Ayush Brick Industries was Rs. 10 lakh and as such at no point of time there was Rs. 15 lakh or Rs. 20 lakh in said account, though in his cross examination, he stated that he could not say as to how Rs. 12 lakh was allowed to be drawn from said account as statement covering perio....
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.... (i) The impugned cheques were issued as collateral security for which the accused petitioner cannot be prosecuted under Section 138 N.I Act. (ii) The appellate Court should not have relied on the judgment and order dated 17.01.2012 of the High Court in Crl. Rev. P No. 82 of 2010 which was passed by the High Court on the question of maintainability of Case No. N.I. 107 of 2008 and similarly, the appellate Court should not have relied on the order dated 14.09.2011 which was passed by this High Court in Crl. Rev. P. No. 81 of 2010 on the question of maintainability of N.I 113 of 2008. (iii) The Courts below did not appreciate the discrepancies appearing in the evidence of prosecution witnesses and erroneously decided the case relying on their evidence. The Courts below did not appreciate that by agreement dated 30.3.2008 executed between the parties time for supply of brick bats was extended till 30.05.2008. Accordingly, accused issued post dated cheque aggregating to Rs. 35,00,000/- as collateral security but the complainant petitioner presented the cheque at the bank for encashment on 30.04.2008 before the said extended period of the agreement for which accuse....
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....by the accused in the discharge of his legally enforceable debt, the accused cannot be prosecuted under Section 138 N.I Act. According to Mr. T. D. Majumder, learned Sr. advocate no legally enforceable debt has been proved in the present case and, therefore, the Courts below erroneously held the accused petitioner guilty. Learned counsel therefore, urges the Court to allow the criminal revision petitions. [11] Mr. T. K. Debbarma, learned counsel appearing for the complainant respondent has contended that the complainant successfully proved his case at the trial Court and the courts below by their concurrent findings found the accused petitioner guilty and she was rightly sentenced under Section 138 N.I. Act. It is contended by Mr. Debbarma, learned advocate that accused petitioner has not been able to make out any ground for interfering with the concurrent findings of the Courts below. Relying on the decision of the Bombay High Court in Balaji Agencies Pvt. Ltd. Vrs. Vilas Bagi and Another: reported in 2009 CRI. L. J. 4250 learned counsel submits that even if it is assumed that accused petitioner issued the cheques as security, the provision of Section 138 N.I Act would be attra....
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....ions cited on behalf of both the parties and referred to herein above, it appears that there is preponderance of judicial opinion in favour of the proposition that when a cheque is issued duly signed by the drawer and the holder completes the same in other respects namely as regards the amount due and the date, the presumption would still be available to the complainant/holder unless the accused shows that the said particulars were filled in without the consent of the accused/drawer". "In my view cases like this cannot be termed to be a case where there is a material alteration. Material alteration will presuppose a change of something which is there to something which was not there. In cases like this there is a tacit or implied consent by the drawer to fill in the details of the amount and the date of the cheque". [12] Under the aforesaid premises counsel appearing for the complainant respondent urges the Court for dismissing the petitions of the accused petitioner. [13] In the course of their arguments counsel representing the parties had taken this Court to the evidence recorded during trial. [14] In Crl. Rev. P. No.06 of 2021 Sekhar Ch. Podder, constituted at....
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.... UCO bank at its Agartala branch at the material time also testified in both the cases and stated that the impugned cheques were presented by the complainant respondent for encashment through the said branch of UCO bank where the respondent maintained its account. The cheques were sent to SBI, Kunjaban branch on which the cheques were drawn and the same were returned from the said Kunjaban branch of SBI for insufficiency of fund in the account of the accused petitioner. [18] From a perusal of the statement of the said witnesses, it appears that the accused petitioner did not dispute issuance of the impugned cheques. She tried to defend herself by saying that the said cheques were issued in blank by her and she did not even fill in those cheques. She however, did not deny her signature on either of the cheques. [19] The Apex Court in Bir Singh Vrs. Mukesh Kumar: reported in (2019) 4 SCC 197 succinctly held that once a person signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It had also been held by the Apex Court by the said judgm....
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.... the cheque was not issued in discharge of a debt." In the present context there is no allegation from side of the accused petitioner that she signed the impugned cheques involuntarily. Rather, her business transaction with the respondent is admitted by her and the fact that she had borrowed advance from the respondent to facilitate such transaction is also admitted by her. The accused petitioner however, denied her debt or liability. Her case is that she repaid full amount of advance to the respondent. Law is well settled that mere denial would not absolve the accused from the liability unless the statutory presumptions under the N.I Act is rebutted by the accused and the contrary is proved by adducing cogent evidence, direct or circumstantial. [20] In Laxmi Dyechem Vrs. State of Gujarat and others : reported in (2012) 13 SCC 375 the Apex Court held that under Section 139 of N.I Act it has to be presumed that the cheque was issued in discharge of a debt or other liability but such presumption should be rebutted by adducing evidence. Observation of the Supreme Court is as under: "25. Therefore, if the accused is able to establish a probable defence which creates doub....
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....iability of the instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp, and (vii) as to holder being a holder in due course. 14. Section 139 of the Act provides 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. 15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume" (rebuttable), (2) "shall presume" (rebuttable) and (3) "conclusive presumptions" (irrebuttable). The term "pr....
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.... for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebutable. However the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee reported in (2001) 6 S.C.C. 16 has also taken an identical view." [23] Following the decision of the Apex Court in Hiten P. Dalal Vrs. Bratindranath Banerjee: reported in (2001) 6 SCC 16 this Court in Benu Roy Vrs. Rajib Ghosh: reported in (2018) 2 TLR 463 similarly held that the explanation in order to rebut the statutory presumption under the N.I Act should be supported by proof otherwise such presumption created by the statute cannot be stated to have been rebutted. [24] The Apex court further examined the issue in Sampelly Satyanarayana Rao Vrs. Indian Renewable Energy Development Agency Limited; reported in (2016) 10 SCC 458 and clarified that presu....
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....00,000/- to the accused but they had taken post dated cheques of an amount Rs. 35,00,000/- from her. His statement is as under: "On failure to perform the agreements dated 07.04.07 and 15.12.07 the letter agreements dated 03.03.08 was executed. As per first clause of agreements for saying dated 07.04.07 we paid Rs. 7 lakh by a post dated cheque and Rs. 2 lakh in cash to the accused for purchasing bricks. As per agreement dated 15.12.07 we paid Rs. 5 lakh by two post dated cheque and Rs. 2 lakh in cash to the accused and by way two agreements we paid Rs. 24 lakh to the accused. We took a post dated of Rs. 35 lakh from the accused in case she fails to perform the terms of 3rd agreement.****" Such assertion of the witness was not specifically denied by the accused. She simply suggested to the PW that she had no dues to be paid to the complainant which was denied by the complainant. In view of such statement made by PW-1 on behalf of the complainant respondent, it appears that accused had an outstanding liability to the extent of Rs. 24,00,000/- to the complainant. Admittedly, the complainant had taken post dated cheques of Rs. 35,00,000/- from her in anticipation that she ....