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2021 (7) TMI 340

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....ion 138 of the Negotiable Instruments Act, 1981(NI Act, for short) in the court of the CJM, Gomati Judicial District, Udaipur on 23.06.2016 alleging, inter alia, that accused Alak Dey [Respondent No.1 herein] borrowed a sum of Rs. 2 Lakhs from the petitioner in cash on 10.03.2016 to discharge his personal obligations. While borrowing the said amount of money, the respondent had undertaken that he would return the loan within a period of 01 month by 10.04.2016. The accused respondent also issued a cheque bearing No.157066 dated 10.03.2016 of a sum of Rs. 2 lakhs drawn on Tripura Gramin Bank branch at Udaipur against his account No.8070012405601 in favour of the petitioner to secure the said debt. The petitioner deposited the said cheque with his bank for crediting the said amount to his account No.31328439774 in the SBI Garji branch. But on 24.05.2016 it was intimated to him by his bank that the cheque was dishonoured by the bank due to insufficient fund in the account of the accused respondent No.1. [3] A demand notice was then issued by the petitioner to respondent No.1 through his lawyer demanding payment of Rs. 2 lakhs within 15 days and such notice was sent to his known reside....

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....r, Tripura Gramin Bank in the Udaipur branch as PW-4. Apart from examining the said witnesses the complainant petitioner relied on as many as 9 exhibits. [8] After the recording of prosecution evidence was over, statement of the accused respondent was recorded under Section 313 Cr.P.C. In reply, accused respondent claimed that the entire prosecution evidence appearing against him was false. In reply to question No.7 accused respondent stated that when the complainant petitioner promised to pay money to him, he issued a blank cheque in favour of the complainant petitioner. Accused respondent admitted that he received demand notice from the petitioner and despite receiving such notice he did not pay any money to the complainant petitioner. He also admitted that the cheque book from which the cheque leaf was issued by him to the complainant petitioner belonged to him. Accused respondent, however, declined to adduce any evidence on his defence. [9] Having appreciated the entire evidence, both oral and documentary, adduced by the parties and after hearing the counsel of the parties at length the learned trial court delivered the judgment observing as under: "11. Once it is proved th....

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....ed. Accordingly, Point No.(i)&(ii) are decided in affirmative and in favour of the complainant but against the accused. 12. Point No.(iii):- In this point, I have to decide whether the accused failed to pay the money on receipt of demand notice. In this respect, I find, P.W.1, the complainant deposed that on 30.05.2016 through his lawyer Mr. Kuntal Das he gave demand notice to accused by registered post demanding payment of the cheque amount Rs. 2,00,000/- only from accused and accused received the registered notice but did not pay any amount to him. P.W.2, Sri Subodh Kr. Singh, the Postal Inspector deposed before this Court that he appeared before this Court on receipt of summons and he has produced documents relating to delivery of registered article No.RE 434887872IN, dated 31.05.2016 addressed to accused Alok Dey and the notice was delivered on 04.06.2016 and identified the letter and delivery slip which is marked as Ext.4 in two sheets. From Ext.2, the demand notice dated 30.05.2016, I find, complainant issued demand notice to accused. From Ext.3, the postal receipt dated 31.05.2016, I find, demand notice was issued to accused by complainant. From Ext.4, the delivery slip re....

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....t sufficient but it must be proved that bounced cheque was returned unpaid but in this case though P.W.4 stated that cheque got bounced because of insufficiency of fund in account of the accused and was returned unpaid but the returning of cheque was not proved. 12. In a case under Section138 of N.I. Act the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the case of prosecution cannot stand or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed. In the first situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant. 13. It is settled position of law that the standard/degree of proof in a criminal case stands on a much higher footing than a Civil case, which means that the prosecution must prove its case beyond all reasonable doubt. Though there is presumption U/S139 of the N.I. Act in favour of the complainant that he r....

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.... such presumption cannot be rebutted by merely offering an explanation. It can be rebutted only by adducing evidence to the fact that he had no debt or legal liability to be discharged towards the complainant. In support of his contention Mr. Bhowmik, learned counsel has referred to the judgment dated 10.02.2020 of the Apex Court in Rajeshbhai Muljibhai Patel and Ors.etc. vs. State of Gujarat and Anr.etc.[Crl.Appeal No.251-252 of 2020] wherein the Apex Court has held that once the issuance of the cheque is admitted/ established presumption under Section 139 NI Act would arise in favour of the holder of the cheque that it was issued in the discharge of an existing debt or liability. The burden lies upon the accused to rebut such presumption by adducing evidence. The observation of the Apex Court in paragraph 20 of the said judgment is as under: "20. The High Court, in our view, erred in quashing the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.....

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....Court proceeded to hold that the "security" offered was not for the discharge of any debt or any liability. Resultantly, it came to hold that the action under Section 138 of the Negotiable Instruments Act, 1881 cannot proceed against the accused any further. 4. We have heard counsel for the parties. 5. In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques. 6. Suffice it to observe, the impugned judgment of the High Court cannot stand the test of judicial scrutiny. The same is, therefore, set aside." [14] Further submission on behalf of the complaina....

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....ete re-appreciation and reconsideration of the entire evidence viewed that the case was not proved against the accused respondent and by a detailed judgment set aside his conviction and sentence. It was contended by Mr.Sarkar, learned Sr.Advocate that it is a settled proposition of law that where 2 views are possible, the view favourable to the accused has to be taken by the court. In support of his contention, Mr.Sarkar, learned Sr.Advocate has relied on the decision of the Apex Court in Chandrappa and Ors.Vs. State of Karnataka reported in (2007) 4 SCC 415 wherein the Apex Court has held as under: "44. In our view, if in the light of above circumstances, the trial Court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was pos....

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....s examined by the counsel of the accused at length. He stated in the cross examination that he could not produce the impugned cheque along with his complaint. He also stated that he was unable to produce the cheque. In reply to a suggestion made by the counsel of the accused, complainant stated that it was not a fact that he was unable to produce the cheque because no such cheque was issued at all by the accused. He also denied the suggestion of the accused that due to his enmity with the accused he lodged a false case against him. [18] PW-2 is a Postal Inspector of Udaipur Head Post Office who turned to testify in court on 17.12.2016. The PW stated that the registered article no.RE434887872IN dated 31.05.2016 was delivered to the accused on 04.06.2016. He identified the delivery slips which were exhibited and marked as Exhibit-4. The article contained the statutory demand notice issued by the complainant to the accused. In his cross-examination he denied the suggestion of the accused that no post man of his post office delivered any demand notice to accused Alak Dey. [19] PW-3, Soumik Bhadury was the Branch Manager, Garjee branch of SBI on the material date. According to the PW,....

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....om the accused after confirming his balance. The said letter which is marked as Exhibit-1 reads as follows: "State Bank of India State Bank of India Garjee Branch (CODE NO-9129) Matabari, Udaipur, Tripura-799013 BM/GB/2016-2017/030 Date: 24/05/2016 Mr.Sankar Das Matabari, PO Matabari Gomati, Tripura Dear Sir, CONFIRMATION REGARDING PAYMENT OF CHEQUE CUSTOMER NAME: ALOK DAY(M:8014898147) ACCOUNT NO. 8070012405601 CHEQUE NO.157066 DT.10/03/2016 AMT.Rs. 200000/- With reference to the above we would like a piece of information, the branch has received cheque from you bearing A/c No. 31328439774 for collection of on your behalf. 2. The cheque was returned by your bank due to insufficient balance in the account of Sri Alok Dey. During the course of return, the cheque is misplaced from banks custody and yet to be traced. 3. We have lodged a FIR and inform the Tripura Gramin Bank, Udaipur Branch for not paying the cheque in future. 4. So we request you to collect a fresh cheque from the customer after confirming his balance. Sorry for your inconvenience. This is for your kind information and necessary action please..." In his cross-examination, the PW ....

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....ed statutory demand notice to the accused which was received by him and despite receipt of the notice, the accused did not pay the loan of the said amount of Rs. 2,00,000/- to the complainant. Eventually the complainant lodged the complaint in the court of the CJM at Udaipur. [23] It is true that the complainant could not produce the impugned cheque at the trial. But his failure in presenting the cheque before the court does not affect his case because the Branch Manager of SBI at Udaipur branch had categorically stated in his evidence that the said cheque was missing from the custody of the bank which was also reported to the jurisdictional police station and the information was recorded in the General Diary of the police station. The accused could not impeach the evidence of the PW in this regard and there is no reason to doubt the statement of the Branch Manager, SBI [PW-3]. [24] Exhibit-1 as well as Exhibit-7 containing official seal of SBI, Garjee branch clearly denotes that the impugned cheque bearing no.157066 dated 10.03.2016 of an amount of Rs. 2,00,000/- issued by the accused against his account No.8070012405601 in Tripura Gramin Bank was dishonoured by Tripura Gramin B....

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....8 for the discharge, in whole or in part, of any debt or other liability. "The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. 22. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid at p 65, para 14). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonabl....

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....probable or doubtful. [30] In the case of Kishan Rao vs. Shankargouda reported in (2018) 8 SCC 165, the Apex Court has succinctly held that mere denial of existence of debt shall not serve any purpose in a proceeding under Section 138, NI Act. Something which is provable has to be brought on record for getting the burden of proof shifted to the complainant. Observation of the Apex Court in this regard in paragraph 20 of the said judgment is as under: "20. This Court held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. The following was held in paragraph 20 [Kumar Exports vs. Sharma Carpets (2009) 2 SCC 513] : "20....The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consid....