TaxTMI 
TaxTMI 
2023 (8) TMI 3
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....nant for his personal purpose as he is defaulter to a bank and complainant any how managed the said amount and gave to the accused on 26.03.2021 at 10.00 am in presence of witnesses in his house at Sarashima and the accused borrowed the said amount for one month. It is further case of the complaint that after expiry of one month on 28.04.2021. Complainant demanded the said amount then the accused issued a cheque bearing no. 615352 dated 28.04.2021 drawn on Triprua Gramin Bank, Muhuripur branch in the name of the complainant and on the same day the complainant deposited the said cheque for encashment in his bank i.e. Tripura State Co-opeative Bank, Belonia Branch accordingly banker of the complainant sent the cheque to Triprua Gramin Bank for encashment but banker of the accused on 10.05.2021 returned the said cheque dishonoured mentioning with remarks, "Insufficient fund". It is further case of the complainant that he requested the accused to pay the cheque amount but the accused did not pay the said amount and also did not pay any heed after which a legal demand notice dated 20.05.2021 was sent to the accused through 'India Post' Service and also requested the accused person to ma....
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....th case No.NI 19 of 2021 passed by the Learned Chef Judicial Magistrate, South Tripura, Belonia whereby the accused Sri Prakash Tripura was acquitted for the offense punishable under section 138 of NI Act, 1881, the complainant-appellant has approached this court seeking relief against the order of acquittal dated 07.06.2022. In Crl.A 17 of 2022 [7] It is the case of the complainant-appellant that he is a businessman at Belonia town and on account of business between the complainant and the accused, a good relation made between them and the accused also visited the shop of the complainant on various occasions subsequently a family relation also made between them. It is further case of the complainant-appellant that out of good and friendly relation the accused demanded to borrow of Rs. 3,00,000/- from the complainant for his personal purpose as he is defaulter to a bank and complainant any how managed the said amount and gave to the accused on 22.03.2021 at 10.00 am in presence of witnesses in his house at Sarashima and the accused borrowed the said amount for one month. It is further case of the complaint that after expiry of one month on 25.04.2021. complainant demanded the sai....
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....ank regarding the return of the cheque as unpaid. f) The drawer of the cheque fails to make the payment of the said amount of money to the payee or as the case may be the Holder in due course of the cheque within 15 days of the receipt of the said notice. [10] The Ld. Court below after perusing the statements of the PWs and Dws and also having dealt with the entire case has observed in the following manner: "As such, I hold that accused has remain successful in rebutting the mandatory presumption of law in favour of the complainant. I accordingly return a finding of not guilt against the accused person namely Shri Dipendra Uchai." [11] Aggrieved by the said acquittal under Section 378(4) of CrPC challenging the legality, validity of propriety of the judgment and order of acquittal dated 06.06.2022 in Connection with case No.NI 18 of 2021 passed by the Learned Chef Judicial Magistrate, South Tripura, Belonia whereby the accused Sri Dipendra Uchai was acquitted for the offense punishable under section 138 of NI Act, 1881, the complainant-appellant has approached this court seeking relief against the order of acquittal dated 06.06.2022. [12] Today in course of the argument, M....
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...., 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 provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:... 20. The Counsel appearing for the appellant-accused has relied on a decision given by a division bench of this Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54, the operative observations from which are reproduced below (S.B. Sinha, J. at Paras. 29 "29. Section 138 of the Act has three ingredients viz.: (i) that there is a legally enforceable debt (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. [13] Mr. Sarkar, has also relie....
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....Sarkar, learned counsel appearing for the appellant has also relied on a judgment of this high court in Benu Roy vs. Rajib Ghosh reported in (2018) 2 TLR 463. The relevant paragraphs have been extracted here in below: 34. Section 118 of the NI Act, which deals specially with the special rule of evidence under the NI Act, 1881 provides the rule of presumption as to ramification of the negotiable instrument. It provides further that, until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date- that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance - that every accepted bill of exchange was accepted within the reasonable time after its date and before its maturity; (d) as to time of transfer - that every transfer of a negotiable instrument was made before its maturity; (e) As to order of indorsements - that the indorsements appearing up....
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....iled to rebut the presumption under Section 139 read with Section 138 of the NI Act. Therefore, this Court is persuaded to interfere with the judgment and order of acquittal dated 27.05.2016 delivered in case No. NI 19/2013. From the evaluation as made above, the accused-respondent is liable to be convicted and is accordingly convicted under Section 138 of the NI Act. [15] Reliance has also been placed on another judgment of this High Court in Shri Subal Chandra Ghosh vs The State of Tripura dated 24.04.2019 by Mr. D. Sarkar, learned counsel appearing for the appellant. The relevant portion of which is extracted herein below: 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....
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....nant has to show his source of income. He further submits that the appellant is capable of lending that money which has been given to the accused persons by way of loan on various dates. The complainant having a good relation with the accused persons and having known them for a long time gave them the money. He further urges this court to interfere with the impugned judgment & order of acquittal dated 07.06.2022 & 06.06.2022 respectively. [17] On the contrary Mr. Rajib Saha, learned counsel appearing for the accused persons has submitted before this court that since the complainant has failed to prove his enforceable liability against the accused persons, Section 139 of the NI Act shall come into play. For ready reference, Section 139 of the NI Act is extracted below: 139. Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. [18] Mr. Saha, learned counsel appearing for the accused-responded has drawn the attention of this court to the state of the DW2 Tarunjit Nag which is extracted he....