TaxTMI 
TaxTMI 
2016 (2) TMI 1336
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....pass, is that he has well acquaintance with the convict petitioner, Sri Dipak Kr. Das and there were monitory transactions between them. The convict petitioner in order to discharge his debts and liabilities towards the complainant respondent issued a cheque bearing No. S.B.00/202/968844 dated 17.03.2007 of Rs. 4,50,000/- to be drawn on the SBI, Udaipur Branch, South Tripura. On 05.04.2007, the complainant respondent presented the said cheque at Tripura State Co-operative Bank, Udaipur Branch, in his account No. CC 7/96/97. But on 13.04.2007, the State Co-operative Bank returned the cheque due to lack of fund in account of the convict petitioner bearing No. 01190011781 in the SBI, Udaipur Branch, South Tripura. 4. The complainant served a demand notice on 18.04.2007 upon the convict petitioner for the said amount of Rs. 4,50,000/-, but the accused did not respond though he received the notice on 21.04.2007. 5. Then the complainant respondent filed a complaint before the learned Chief Judicial Magistrate, South Tripura, Udaipur U/S 138 of the Negotiable Instruments Act (hereinafter, for short, referred to as 'N.I. Act') on 15.05.2007 against the convict petitioner. The....
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.... of loan by signing a blank cheque and the body of the cheque was filled up by the complainant respondent. Although the complainant respondent denied the defence case of the accused petitioner in his cross-examination, but he neither disclosed the name of the person who filled up the body of the said cheque, nor did he adduce the scribe thereof for proving the handwriting in the cheque. As such, the contents of the cheque have not been proved. 13. He further submits that as per Section 139 of the N.I. Act, there is presumption in favour of the complainant-respondent that the cheque was issued in favour of the complainant-respondent to discharge the debts and other liabilities, but there is no presumption in respect of the amount of liabilities. Therefore, it is obligatory on the part of the complainant respondent to prove the exact amount of discharge for which the cheque was issued. 14. It is also contended by the complainant-respondent in his cross examination that he had no commercial transaction with the convict petitioner. Therefore, it is the complainant respondent who has to say when, where and for what purpose the alleged amount of Rs. 4,50,000/- was paid by the compl....
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.... debt. 18. In support of his contention, he has referred to Section 138 of the N.I. Act, 1881 which reads 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 other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its vali....
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.... the aforesaid presumption." 22. In Apan Kumar Das v. Sri Dilip Kr. Roy, the present petitioner, (Crl. Rev. P. 07 of 2010), this court after considering the evidence therein, dismissed the petition affirming the order of the courts below. In that case also, the petitioner did not deny that he had issued a cheque of Rs. 5,00,000/- in favour of the complaint-respondent therein and the said cheque was dishonored for insufficiency of the fund in his account. His only plea was that he has taken an amount of Rs. 10,000/- from the complainant respondent and has already paid the entire amount. In the instant case also the petitioner admitted that he had taken a loan of Rs. 5000/- from the complainant-respondent and repaid the same by signing a blank cheque. It is very difficult to accept that contention. Why the petitioner while took a loan of Rs. 5,000/- gave a cheque of Rs. 4,50,000/- had he not taken loan as contended by the complainant respondent. 23. Upon going through the aforesaid provisions of the NI Act, it appears that if a person commits an offence under Section 138 of the NI Act, then the court has the power to punish him with imprisonment for a term which may extend to 2....