TaxTMI 
TaxTMI 
2021 (11) TMI 651
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.... its judgment and order dated 15.02.2017 was pleased to hold the present petitioner guilty of the offence and sentenced him to pay compensation of Rs. 11,50,000/- (Rupees eleven lakh fifty thousand) only, within 45 days and in default to suffer simple imprisonment for a period of 2 years. The genesis of the case was on the basis of a petition of complaint filed by one Laxmipriya Dey against the present petitioner Balai Chandra Mondal under Section 138/142 of the Negotiable Instruments Act. It was alleged in the petition of complaint that the complainant and the accused were known to each other and had a good relation as such the complainant transferred her land in favour of the accused at a considerable price of Rs. 10,00,000/- for which the accused issued cheque bearing no.041051 dated 24.02.2014 drawn on IDBI Bank, amounting to Rs. 10,00,000/- in her favour. Complainant present the said cheque for encashment on 22.04.2014 with her banker, Bank of Baroda, Krishnagar, Nadia and the same was dishonoured due to insufficiency of fund in the account of the accused person. The factum of dishonor was intimated by a Bank Memo dated 23.04.2014 and the complainant, thereafter, on 19.05.2....
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....ontention as made in the petition of complaint and stated that two properties were sold to the accused for Rs. 10,00,000/- each aggregating to sum of Rs. 20,00,000/-. The dishonored cheque was issued in respect of one of the properties. In cross-examination the same story was reiterated by the complainant and she categorically pointed out on being cross-examined by the defence that the sale deeds have been admitted in evidence by way of Ext.6 and Ext.6/1. The accused/defence on the other hand took a plea that on 18.08.2014 the amount of rupees ten lakhs was transferred to the account of the complainant, as such there were no dues for which the case has been persuaded by the complainant. In order to prove such subsequent payment being made the accused also tendered one Arun Kumar Khanderwal as DW2 who was the Chief Manager of Bank of Boroda, Krishnagar, Nadia. The said Bank Manager tendered the deposit slip and a cheque in favour of Laxmipriya Dey dated 18.08.2014 for rupees ten lakhs and the same was marked as Ext.B. The branch manager asserted that the petitioner Balai Chandra Mondal transferred Rs. 10,00,000/- in favour of Laxmipriya Dey on 18.08.2014. On scrutiny of the ma....
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....uld only adduce evidence for reimbursement of Rs. 10,00,000/- and that too much beyond the period i.e., 18.08.2014. It was specifically argued by the complainant that the petitioner was trying to dilute the case for confusing regarding payment in respect of the other property which was not the subject matter of the cheque for which the petitioner was liable to pay. The fact and circumstances of this case compels this Court to refer to a recent judgment of the Hon'ble Supreme Court in Sumeti Vij -Vs. - Paramount Tech Fab Industries reported in 2021 SCC OnLine SC 201 which is as follows: "13. The object of introducing Section 138 and other provisions of Chapter XVII in the Act appears to be to enhance the acceptability of cheques in the settlement of liabilities. The drawer of the cheque be held liable to prosecution on dishonour of cheque with safeguards provided to prevent harassment of honest drawers. Section 138 primarily relates to a civil wrong and the amendment made in the year 2000 specifically made it compoundable. The burden of proof was on the accused in view of presumption under Section 139 of the Act and the standard of proof was of "preponderance of probabil....
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....demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." 15. The scope of Section 139 of the Act is that when an accused has to rebut the presumption, the standard of proof for doing so is that of "preponderance of probabilities" which has been examined by a three-Judge Bench of this Court in Rangappa v. Sri Mohan , which reads as under:- "26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [(2008) 4 SCC 54....
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....rt below so far as the factual appreciation is concerned as the Learned Court below have held that the cheque which is subject matter of the case was issued in respect of only one of the properties which is for the sale deed No. 18852 marked as Ext.6. The transfer of money which had taken place was in respect of the sale deed No. 18853 which was marked as Ext.6/1. The defence in this case has failed to rebut the prosecution evidence, so far as the quantum of the money which was required to be paid in respect of the two properties which were purchased by him. The plea of the defence that the sum of Rs. 10,00,000/- was subsequently paid, falls short of the contention of the prosecution wherein for two of the properties Rs. 20,00,000/- (Rs. 10,00,000/- each) were to be p aid by the accused. It would have been proper if the defence could have shown that the complainant has received a sum of Rs. 20,00,000/- in total and thereafter taken up the plea in the instant case. The belated plea which has been taken (which is subsequent to the reply to the demand notice) is insufficient to overcome the prosecution evidence, as such it is held that the prosecution has proved its case by adherin....