TaxTMI 
TaxTMI 
TaxTMI 
2019 (4) TMI 2049
X X X X Extracts X X X X
X X X X Extracts X X X X
....ad filed a written complaint before the learned Chief Judicial Magistrate, West Tripura, Agartala, against the respondent No.2 for an offence committed under Section 138 of the Negotiable Instrument Act, 1881. The learned Trial Court registered the case and after examining the petitioner took cognizance of the said case and issued notice upon the respondent No.2 to appear before the Court. The respondent No.2 on receipt of the summon appeared before the Court and subsequently he was explained the substance of the accusation under Section 251 of CrPC. The controversy rotates that the petitioner being approached by the respondent No.2 had paid Rs. 3,60,000/- to the respondent No.2 in three installments. The respondent No.2 happened to be the neighbour and very close friend of the petitioner. Since the petitioner was not in a position to pay Rs. 3,60,000/- he arranged the money of Rs. 2,60,000/- from his mother-in-law, Smt. Dulu Rani Ghosh (P.W.-2) and Rs. 1,00,000/- from his younger brother, namely Dilip Ghosh (P.W-3). On receipt of the said amount, the respondent No.2 assured and promised the petitioner to return the said borrowed amount within a period of three months from the date....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... month prior to presentation of the cheques. Vi) The complainant has admitted in his cross- examination that he has written the name of the accused in cheque No.115348 and 115349, thereby raising serious question mark about the validity of those cheques." 5) While arriving at those finding, the learned Trial Court held that the petitioner had failed to prove his case and thus, acquitted the respondent no.2. 6) On statutory appeal, the learned Addl. Sessions Judge also took the same view of the learned Trial Court and, accordingly, affirmed and upheld the said judgment and order dated 24.02.2014. 7) Being aggrieved by the said concurrent judgment, the petitioner has preferred this revisional application stating inter alia that the findings of both the learned Courts below are perverse and committed serious illegality in interpreting the law of the land. 8) Mr. Bannerjee, learned counsel appearing for the petitioner has contended that the petitioner has been able to discharge his burden that he paid Rs. 3,60,000/- to help his friend i.e., respondent No.2 for the purpose of business. After receipt of the said amount, the respondent No.2 also issued three cheques as stated above w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her, the petitioner served a statutory demand notice upon the respondent No.2. The respondent No.2 has admitted in his deposition that he received the said registered notice in time, but, a second aspect has come to light that after receipt of the said notice the respondent No.2 came to learn that the cheques were lying with the petitioner and the next natural question under that circumstance is that why the respondent No.2 did not inform the police that the cheques were with the custody of the petitioner. In the cross examination he has stated that " it is not the fact that I did not inform the police because I actually gave three cheques to the complainant'. Here also, according to me, the conduct of the respondent No.2 does not seem to be fair enough and it is hard to believe the story that he actually had lost the three cheques. 14) In view of the aforesaid evidence laid on behalf of the petitioner and the respondent No.2, I may reach to the conclusion that the story built up by the respondent No.2 is concocted and fabricated and his conduct proves that he issued three cheques in favour of the petitioner. 15) Mr. S.M. Chakraborty, learned Sr. counsel, assisted by Ms. P. S....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "said amount" i.e. the cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to the "said amount' there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving the break-up of the claim the cheque amount, interest, damages etc, are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonored cheque, the notice might well fail to meet the legal requirement and may be regarded as bad." 18) The learned Sr. counsel appearing for the respondent No.2 based on the aforesaid decisions have submitted that the petitioner in the complaint has not stated specifically what amount he borrowed from his mother-in-law and his younger brother. Mr. Chakaborty, learned Sr. counsel has further argued that the petitioner also should have disclosed about the income of his mother-in-law as well as the younger brother to substantiate the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nding 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 that Act, be punished with imprisonment for [a term whichmay 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 validity, whichever is earlier; b) the payee or the holder in due course of the cheque, as the chase may be, makes a 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 he 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he absence of endorsement of the advocate are bad in law. I already have held that the plea of the respondent No.2 that he lost three cheques leading him to make G.D. entry with the police station is not believable story and the both the learned Courts below had committed serious error in appreciating the evidence of the petitioner as well as the respondent No.2. 29) While dealing with the next point of the argument of Mr. Chakraborty, learned Sr. counsel that the loan was not given through account payee cheque as is required under Section 269-SS of the Income Tax Act relying upon the decision of Krishna Janardhan Bhat (Supra), wherein a Division Bench of the Apex Court dismissed the petition under Section 138 of N.I. Act on the ground that the complainant failed to follow the legal provisions as enshrined in Section 269-SS of the Income Tax Act. But the said judgment has been overruled by three judges Bench of the Hon‟ble Supreme Court in Rangappa vs Sri Mohan reported in (2010) 11 SCC-441 wherein the Apex Court upheld the order of the High Court convicting the appellant. It was held that the principle of Krishna Janardhan Bhat(Supra) is in conflict with the statutory provi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ble High Court of Tripura has held that in Para-9 that:- " 9. Section 94 of the N.I. Act prescribes the very mode of giving notice which reads thus: 94. Mode in which notice may be given-Notice of dishonor may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared as insolvent, to his assignee,; may be oral or written; may, if written, be sent by post; and may be in any form; but it must in from the party to whom it is given, either in express terms or by reasonable intendment that the instrument has been dishonored, and in what way, and that he will be held liable thereon; and it must be given a reasonable time after dishonor, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid. The above provision makes it clear that the notice, if duly directed, shall serve the purpose of law" 38) It would be apposite to take note of decision of the Apex Court in Rangappa vs Sri Mohan, rep....
X X X X Extracts X X X X
X X X X Extracts X X X X
....maintaining the compliant, but, it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence u/s 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. 41) In Black‟s Law Dictionary, "giving of notice" is distinguished from "receiving of the notice.". " A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it. "A person "receives" a notice when it is duly delivered to him or at the place of his business. In Maxwell‟s "interpretation of Statues," the learned author has emphasized that "provisions relating to giving of notice often receive liberal interpretation." 42) In the present case, according to Trial Court, the demand notice did not contain the signature of leanred Advocate which created a question mark about the validity of said demand notice served upon the accused. Here, the Ext-B contains signature of the complainant himself, so it is valid notice according to section 94 of N.I. Act and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g notice of dishonor is not demand payment for the party giving notice but to warn the party of his liability and in the case of drawer, to enable him to protect him as against the drawee or acceptor who was dishonored the draft. Generally, where the drawer has no funds belonging to him in the drawee's hands neither the presentment of cheque for payment nor notice of dishonor is necessary to charge the drawer. 48) Proviso to Section 138 of N.I. Act, 1881, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonor of a cheque can constitute an offence and become punishable. 49) The first condition is that the cheque ought to have 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 validity whichever is earlier. 50) The second condition is that he payee or the holder in due course of the cheque, as the case may be, ought to make a 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pugned Cheques were indeed his own. Once this fact is acknowledged, Section 139 read with Section 118 of the N.I. Act mandates a presumption that the cheques pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and onus is then on the accused to raise a probable defence. 57) The Apex Court in Sampelly Satyanarayan Rao vs. Indian Renewable Energy Development Agency Ltd. reported in AIR 2016 SC-4363 held that the post dated cheque issued as security towards payment of installments of a loan transaction will come under the purview of Section 138 of the Act is, whether the cheque represents advance payment without there being subsisting debt or liability . 58) There is a English proverb that: " Compassion & sympathy have no role to play where a rule of law is required to be enforced & Law cannot afford any favourite other than truth. 59) True, it is, that the Apex Court in the long line of decisions has held that unless an order passed by Magistrate is perverse or the view taken by the Court is wholly unreasonable or there is non-consideration of any relevant materials or there is palpable misreading of records, the revision Court will not b....