TaxTMI 
TaxTMI 
2023 (8) TMI 4
X X X X Extracts X X X X
X X X X Extracts X X X X
....[3] The genesis of the case can be rooted from the fact that a trial was initiated on the complaint filed by the complainant alleging that he and the accused in course of personal transaction since long back become acquainted with each other. Gradually, they built up a good and cordial relation with each other. In the month of March, 2020 accused person approached to the complainant and requested him to pay an amount of Rs. 9,75,000/- to meet up the necessity for running the family business assuring the complainant that the accused person will repay the said money within one year from the date of receiving the money. Therefore, on the basis of said assurance the complainant had given Rs. 9,75,000/- to the accused person in the month of March, 2020. Thereafter, as per the assurance of the accused person, and in order to discharge of his liability the accused person issued a cheque to the complainant vide cheque no. 776515 dated 22.03.2021 of Rs. 9,75,000/- drawn on his bank account lying in the United Bank of India (now PNB), Belonia Branch. At the time of issue the cheque two witnesses were present and thereafter the complainant presented the said cheque to the UCO Bank, Belonia Br....
X X X X Extracts X X X X
X X X X Extracts X X X X
....awer on an account maintained by him with the banker for payment of any amount of money out of that account to the complainant. b. The said payment was made for discharge of a legally enforceable debt or other liability, in whole or in part. c. The said cheque were returned unpaid by the bank. d. The cheque was presented to the bank within a period of three months from the date on which it was drawn or within the period of its validity whichever is earlier. e. The payee or the Holder in due course of t cheque as the case may be made a demand for the payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank 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. [6] The learned court below has dealt with the Sections 118 and 139, being the special rules of evidence applicable to the case as follows: "118. Presumption as to negotiabl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....red to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused-appellant to establish a probable defence so as to rebut such a presumption. [8] The learned court below while churning out the source of the income has observed in the following manner: Admittedly, complainant did not submit any document to show that he has property in Agartala and received rent from the same and further did not place any document to prove that his wife contributed Rs. 5,00,000/- to him. No ITR return is submitted before the court. I am of the view that if the loan transaction involved smaller amount of money in cash and the source of the same can reasonably be proved/explained by the complainant, then, such transactions in the absence of any other reasons, ought not to be automatically considered as unaccounted money. But here it is not explained why loan for such a huge amount was advanced in cash. It is also not explained whether his personal savings were kept in cash at home or deposited in bank. If his personal savings were lyi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plied in terms of clause (b) of section 138 of N.I.Act. [11] Finally, the learned court below after examining the PWs, DWs and all having considered the facts and circumstances of the case has observed in the following manner: 15. In the background of the above facts and circumstances the presumption u/s 139 stands rebutted. Once presumption u/s 139 N.I. Act is rebutted, burden of proof shifts upon the complainant to prove as a matter of fact that cheque was actually issued in discharge of liability. As discussed above, the complainant has failed to prove the actual liability of the accused to the extent of cheque amount. Therefore, complainant has not been able to prove that the cheque was issued by the accused in discharge of legal debt or liability towards the loan. 16. 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 Goutam Roy Barman. 17. The accused person namely Shri Goutam Roy Barman is hereby acquitted for the offence as punishable under section 138 of N.I Act, 1881. [12] A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gotiable Instruments Act, 1881 enjoins the Court to presume that the holder of the cheque received it for the discharge of any debt or liability and hence before the Ld. Trial Court the burden was upon the respondent to rebut the aforesaid presumption which he miserable failed. [15] It is further contended by the learned counsel for the appellant that the learned court below has miserably failed to take into account the context of M.D Thomas vs P.S Jaleel and Another reported in (2009) 14 SCC 398 and acquitted the respondent. [16] Mr. P Roy Barman, learned senior counsel has placed his reliance on a judgment of the apex court in K. Bhaskaran vs. Sankaran Vaidhyan Balan and Another reported in (1999) 7 SCC 510 with regard to receipt of service of notice. Where the apex court has observed as follows: 18. On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving" the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sary hardship to an honest drawer. Therefore, the observance of stipulations in quoted Clause (b) and its aftermath in Clause (c) being a pre-condition for invoking Section 138 of the Act, giving a notice to the drawer before filing complaint under Section 138 of the Act is a mandatory requirement. 7. The issue with regard to interpretation of the expression giving of notice/ used in Clause (b) of the proviso is no more res integra. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr., the said expression came up for interpretation. Considering the question with particular reference to scheme of Section 138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days "of the receipt" of the said notice. "Giving notice" in the context is not the same as "receipt of notice". Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause (c) of the proviso. Emphasizing that the provisions contained in Section 138 of the Act required to be construed liberally, it was observed thus: ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... merely highlights that the respondent had an over-extended credit facility with the bank and his failure to update his account led to debt recovery proceedings. Such evidence does not disprove the "appellants" liability and has a little bearing on the merits of the respondent's complaint. Similarly, the "appellants" mere bald denial regarding genuineness of the Deed of Undertaking dated 07.11.2000, despite admitting the signatures of Appellant No. 2 thereupon, does not cast any doubt on the genuineness of the said document. 17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar : (2019) 4 SCC 197 , where this court held that: "36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt." 18. Considering the fact that there has b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sible for the High Court to interfere with the same. 20. After analyzing all these pieces of evidence, the learned Trial Court found that the Income Tax Returns of the complainant did not disclose that he lent amount to the accused, and that the declared income was not sufficient to give loan of Rs. 3 lakh. Therefore, the case of the complainant that he had given a loan to the accused from his agricultural income was found to be unbelievable by the learned Trial Court. The learned Trial Court found that it was highly doubtful as to whether the complainant had lent an amount of Rs. 3 lakh to the accused. The learned Trial Court also found that the complaint had failed to produce the promissory note alleged to have been executed by the accused on 25 th October 1998. After taking into consideration the defence witnesses and the attending circumstances, the learned Trial Court found that the defence was a possible defence and as such, the accused was entitled to benefit of doubt. The standard of proof for rebutting the presumption is that of preponderance of probabilities. Applying this principle, the learned Trial Court had found that the accused had rebutted the presumption ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case 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....