TaxTMI 
TaxTMI 
2020 (5) TMI 717
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....uested by him and on assurance that he would return the said amount to the complainant within 5-6 months. On 01.03.2013, the respondent No.1 issued two cheques bearing No.215681 and 215682 drawn on Tripura Gramin Bank, Old RMS Chowmuhani Branch, Agartala amounting to Rs. 4,00,000/-. The said cheques were issued in favour of the complainant for liquidating the liability of the respondent No.1. By each of the cheques a sum of Rs. 2,00,000/- was sought to be paid. The complainant deposited those cheques in his account in the United Bank of India, GB Hospital Branch. As stated earlier, both the cheques were dishonoured for insufficiency of fund in the account of the respondent No.1. Tripura Gramin Bank, Old RMS Chowmuhani Branch sent the report of dishonour. According to the complainant, on 07.03.2013 the United Bank of India, GB Hospital Branch informed the same by the return memo dated 23.05.2013. It has been clearly mentioned in the return memo that sufficient fund was not maintained in the account on which those cheques were drawn. On 26.06.2013 the complainant through his lawyer issued the demand notice for making the payment of the same amount as reflected in the said two cheques....
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....ent on the face of the record that the respondent No.1 had knowledge that the demand notice was delivered on 02.07.2013, but the demand was not met immediately or within the time as stipulated by Section 138 of the NI Act. (v) The trial court has further observed as follows: (1) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that amount for the discharge of any legally enforceable debt or other liability. (2) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or with the period of its validity, whichever, is earlier. (3) the cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the amount is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank. (4) the payee or the holder in due course of the cheque makes demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank rega....
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....2007) 1 SCC 70; Laxmi Dychem vs. State of Gujarat & Ors., reported in (2012) 13 SCC 375; Kumar Exports vs. Sharma Carpets, reported in (2009) 2 SCC 513; K.N. Beena vs. Muniyappan and Another, reported in (2001) 8 SCC 458; R. Vijayan vs. Baby and another, reported in (2012) 1 SCC 260; Raj Kumar Khurana vs. State (NCT of Delhi) & another, reported in (2009) 6 SCC 72; John k. John vs. Tom Varghese & another, reported in (2007) 12 SCC 714; Krishna Janardhan Bhat vs. Dattatraya G. Hegde, reported in (2008) 4 SCC 54; State of Punjab & others vs. Surinder Kumar & others, reported in (1992) 1 SCC 489 it has been held that the proposition of law which emerges from the aforementioned judgments is that the onus to rebut the presumption under Section 139 of the NI Act that the cheque has been issued in discharge of debt or liability is on the accused and the fact that the cheque may be post-dated does not absolve the drawer of a cheque form the penal consequences of Section 138 of the Negotiable Instruments Act. Later, it has been observed as follows: "37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it ampl....
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....e and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act. 43. In our considered opinion, the High Court patently erred in holding that the burden was on the appellant-complainant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the same. The finding of the High Court that the case of the appellant-complainant became highly doubtful or not beyond reasonable doubt is patently erroneous for the reasons discussed above." [Emphasis added] [7] Mr. Deb, learned counsel on the basis of the said proposition has submitted that when the signature on the cheque....
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....accused could not deny his signature on the cheques in question and it has been proved that when the cheques were presented to the bank within the period of their validity and those were returned unpaid for the reasons of insufficiency of fund in the said account or for that the account is closed the presumption of liability cannot be escaped. It is required to presume that the cheques in question were drawn for discharge of legal debt or liabilities and the holder of the cheques i.e. the complainant received the same in discharge of such debt or liabilities. [9] Mr. S. Lodh, learned counsel appearing for the respondent No.1 has submitted that true it is that the signatures on the cheques were not challenged. Even the banker did not question the signatures of the complainant. PW-1 in the cross- examination has stated that the he runs an auto-rickshaw and on the evening only he opens his shop. PW-1 has also stated in the cross-examination that he had not met the accused on 01.03.2013, the day on which the cheques were issued. PW-1 has further stated that the cheques which have been submitted before the court, in such cheques it was subscribed the branch as Agartala. Except Exbts.1 ....
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....lly stated by the complainant in the complaint and in his examination-in-chief regarding date on which loan was given on one side and what was said in cross-examination in other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply the notice denying the execution of cheque or legal liability. Even before the trial court, appellant- accused has not denied his signature on the cheque." [11] Mr. Lodh, learned counsel has referred to the following passage of ANSS Rajshekar vs. Augustus Jeba, reported in AIR 2019 SC 942 as under: "In Rangappa (supra) the appellant duly rebutted the presumption under Section 139 of the Act. His defence that there was an absence of a legally enforceable debt was rendered probable on the basis of the material on record. Consequently, the order of acquittal passed by the first appellate court was justified." Mr. Lodh, learned counsel has further submitted that from the cross-examination of PW-2 [Tapas Choudhury] the following aspect can be noticed: "As on 18.06.2016 the balance in the account of the complainant was below Rs. 100/-." The said witness however did not disclose t....
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....nt by the complainant on 26.06.2013 and the return memo was issued on 23.05.2013. From the evidence it appears that after receipt of the demand notice which was delivered on 02.07.2013, the accused-respondent No.1 did not make payment to the complainant. The trial court has clearly observed that the court has condoned the delay that occurred in filing the complaint within one month from the day of expiry of 15 days from the day of receipt of the demand notice. Hence, the trial court has observed that the requirement of Section 138 of the NI Act for convicting any person has been complied but the complainant according to the trial court has failed to prove the existence of legally enforceable debt or liability and no presumption under Section 139 of the NI Act can be drawn. [14] The findings in respect of conforming to the requirement is not under challenge. Hence, the solitary question as framed above is the foundation of challenging the order of acquittal dated 14.06.2017. This court finds that sufficient justification has been given by the trial court while drawing inference in respect of financial capacity of the complainant. Even if, the other inference is capable of being dra....