TaxTMI 
TaxTMI 
2026 (6) TMI 1148
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....By the said judgment, Learned Sessions Judge has affirmed the judgment and order dated 20.01.2025 passed by Learned CJM, Gomati District, Udaipur in connection with CR(NI)/17/2023 wherein the petitioner was convicted under Section 138 of N.I. Act and was sentenced to pay fine of 4,00,000/- for having committed an offence punishable under Section 138 of NI Act in default to suffer RI for 6(six) months. 3. Taking part in the hearing, Learned Counsel Mr. Bibek Banerjee appearing on behalf of the petitioner drawn the attention of the Court that the respondent-complainant filed one case under Section 138 of NI Act before the Learned Trial Court with an assertions that she is a business woman and her husband is a Government servant working as a constable of police and was having friendly relation with the petitioner-accused who is also serving as constable of police. During the first part of the month of February, the petitioner-accused came to the residence of the respondent-complainant asking for a loan of Rs. 2,00,000/- for the purpose of construction of house at Rani. The respondent-complainant gave the loan amount of Rs. 2,00,000/- to the accused petitioner on 16.02.2022 at 5 pm ....
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....ESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS) PW1 Smt Tinku Sarkar Complainant PW2 Sri Sanjoy Datta Witness PW3 Sri Suman Das Witness PW4 Sri Sandip Sarkar Asstt. Manager PW5 Sri Litan Kumar Das Sub Post Master B. Defence witness, if any: RANK NAME NATURE OF EVIDENCE (EYE WITNESS, POLICE WITNESS, EXPERT WITNESS, MEDICAL WITNESS, PANCH WITNESS, OTHER WITNESS) DW1 Sri Sonatan Murashing Accused person C. Court witness, if any: NIL LIST OF PROSECUTION/DEFENCE/COURT EXHIBITS A. Prosecution Sr. No. Exhibit Number Description 1. Exbt. P1 Original cheque No. 022816 Dated 21.11.2022 drawn on Tripura State Cooperative Bank Ltd. Belonia Branch 2. Exbt.P2 Bank Deposit Slip of Tripura Gramin Bank dated 21.11.2022 3. Exbt.P3 Original bank return memo dated 05.12.2022 of PNB Bank 4. Exbt.P3/1 Seal and signature on the return memo dated 28.11.2022 by the then Bank Manager 5. Exbt. P4 Letter with endorsement of the bank 6. Exbt. P5 series Demand Notice dated 09.12.2022 7. Exbt. P6 Original pos....
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....nant's case. Therefore, the conviction of the appellant cannot be sustained." Referring the same, Learned Counsel Mr. Banerjee drawn the attention of the Court that since the statutory notice as per requirement of clause (b) of the provision of Section 138 of NI Act was not served properly upon the present petitioner-accused, so, the conviction against the petitioner cannot be sustained in pursuance of the aforesaid judgment of the Hon'ble Apex Court. Learned Counsel further drawn the attention of the Court referring the evidence of PW-1 i.e. the respondent-complainant who in course of her cross-examination by the present petitioner-accused admitted that she received one letter from the post master of R.K. Pur Head Post office that her letter was delivered to one Abhijit Murasingh and further stated that Sonatan Murasingh is the resident of Belonia. 5. Learned Counsel, Mr. Banerjee thereafter drawn the attention of this Court that according to the respondent-complainant, she had paid Rs. 2,00,000/- as loan to the present petitioner accused but she did not disclose from which source she got the money; even she failed to satisfy the Court her financial capacity to pay the sa....
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....he petitioner unlawfully which needs to be interfered with. 6. Further, reliance was placed upon another citation of this High Court in Swapna Debnath and others Vs. Sanjit Chakraborty and another reported in (2021) 1 TLR 514 wherein in para No. 13 this High Court made the following observation and finally, dismissed the appeal. "13. The deposition of PW2, Sri Dilip Dey further substantiates the fact that the complainant had received the cheques of Rs.50,000 and Rs. 1,00,000 "at the time of payment". In furtherance thereof, I find that the complainant failed to disclose the source of fund. He did not furnish any evidence in support of his claim that he had financial ability to give loan of Rs.1,50,000 to the respondent. Though he deposed that he was an income-tax payee, but, he did not furnish any such document in support of the fact that he was an income-tax payee." Relying upon the same, Learned Counsel drawn the attention of the Court since the respondent-complainant failed to disclose the source of fund; nor the complainant produced any evidence to substantiate that she had financial ability to give loan of Rs. 2,00,000/- to the petitioner; nor she submitted any ....
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.... a person can be convicted for an offence enumerated in the substantive part of the section. Clause (b) of the proviso to Section 138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for 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. 7. In the present case, the notice of demand was served upon the wife of the appellant and not the appellant. Therefore, there is no escape from the conclusion that complainant-respondent had not complied with the requirement of giving notice in terms of Clause (b) of proviso to Section 138 of the Act. Unfortunately, the High Court overlooked this important lacuna in the complainant's case. Therefore, the conviction of the appellant cannot be sustained."" Referring the same, Learned Counsel also submitted that in view of the aforesaid judgment it appears that the respondent-complainant has failed to prove the charge levelled against the present petitioner-accused. So, the judgment delivered cannot be sustained as per la....
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.... at Exh. 14 that it was received by Patel Ashaben Ganeshbhai. Therefore, it emerges that the accused did not receive the notice. In the decision of M.D. THOMAS v. P.S. JALEEL reported in (2009) 14 SCC 398, Hon'ble Supreme Court ruled that clause (b) of the proviso to Section 138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for 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 when the notice of demand was served upon the wife of the appellant and not the appellant, the complainant had not complied with the requirement of giving notice under the said provision. In the present case also notice is not served upon the accused but it was received by a family member of the accused. Therefore, the complainant has not complied with the requirement of giving notice in terms of clause (b) of the proviso to Section 138 of the Act." Referring the same, Learned Counsel submitted that the present case is squarely covered by the said judgment and urged for allowing this....
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....t of the Learned Trial Court wherein it was specifically mentioned that the accused could not produce any cogent evidence in respect of the fact that the cheque was procured by the complainant by any other means and that was not issued for the purpose of discharging his debt. Also, no defence was put forward in support of the fact of non-existence of any enforceable debt. Further, PW-3 also supported the version of the complainant that he was present when the alleged transaction took place and when the money was taken. So, Learned Trial Court came to the observation that there was no ground to brush aside the version of the respondent-complainant and finally, considering the evidence on record Learned Trial Court rightly found him guilty and convicted him and there was no infirmity in the judgment delivered by Learned Trial Court which has been affirmed by the Learned Sessions Judge and Learned Senior Counsel thus urged for dismissal of this revision petition. 12. I have heard the parties at length and perused the records of the Learned Trial Court including the judgment delivered by Learned Appellate Court as well as the Learned Trial Court. Also, I have gone through the eviden....