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TMI Blog2020 (11) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... d the conviction of the petitioner while reducing the sentence to fine only and directing the petitioner to pay fine of Rs. 4,00,000/-(four lakhs) to the complainant and in default suffer Simple Imprisonment (SI) for a period of 6 months. Being aggrieved and dissatisfied with the said judgment and order of the learned Sessions Judge, the convict appellant, being petitioner, has filed the present Criminal Revision Petition. [3] The basic facts necessary for disposal of the petition are that the present petitioner and the respondent were known to each other and they were on good terms. The present petitioner used to borrow money from the respondent frequently to meet his financial needs and he used to repay such loan in time. On 15.01.2014 he took a loan of Rs. 3,50,000/-(Three lakhs fifty thousand)from the respondent and promised to repay the money within 30.11.2014. The money not being repaid in time, the respondent approached the petitioner on 13.12.2014 and requested him for an early repayment of the same. Pursuant to such request, the present petitioner issued Cheque no.418431 dated 13.12.2014 on Tripura Gramin Bank for an amount of Rs. 3,50,000/-(Three lakhs fifty thousand) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two other witnesses namely Shri Dilip Das as PW-2 and Mamud Hussain Khadim as PW-3. He also adduced documentary evidence which are Exbt.1, Exbt.2, Exbt.3 and Exbt.4. Among these documentary evidence, Exbt.1 is the impugned cheque dated 13.12.2014, Exbt.2 is the cheque deposit slip dated 13.12.2014, Exbt.3 is the cheque return memo, and Exbt.4(series) is the demand notice dated 30.12.2014 including the envelope containing the postal receipts and report of the postman. Statement of the accused was recorded under Section 313 Cr.P.C at the conclusion of the prosecution evidence. In reply, the accused petitioner claimed that the entire prosecution evidence appearing against him was false and he declined to adduce any evidence on his defence. [8] Having appreciated the evidence, both oral and documentary, adduced by the complainant-respondent, the learned trial court, after hearing the parties at length and considering the submissions made on their behalf, recorded the following findings in paragraph 18 of its judgment: "18. In this case, from the trend of cross examination, I find, the accused took the plea that the accused given a blank cheque in favour of the complainant as a secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [11] Finally, the learned Sessions Judge passed the following order: "In the result, the appeal is dismissed. The conviction as returned by Ld. Chief Judicial Magistrate, Gomati, Udaipur to the appellant in said C.R. 08 (N.I.) of 2015 is hereby affirmed. However, the sentence passed therein is modified. The appellant shall now pay a fine of Rs. 4,00,000/- (Four lakhs only) and in default to pay the fine, shall suffer simple imprisonment for 6 (six) months. The fine money, if realized or paid, shall be disbursed to the respondent no.1, Sri Tanmoy Krishna Das. With these observations the appeal is disposed of on contest." [12] I have heard Mr. S.Lodh, learned counsel appearing for the petitioner as well as Mr. Samar Das, learned counsel appearing for private respondent no.01 and Mr. S.Debnath, learned Addl. PP appearing for the state respondent. [13] It has been mainly canvassed on behalf of the petitioner that the learned trial court failed to appreciate the evidence as well as the grounds of objection raised by the accused petitioner and erroneously found the petitioner guilty. It is submitted on behalf of the petitioner that the learned trial court did not appreciate that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. Such presumption cannot be rebutted by merely offering an explanation. In support of his contention, Mr.Das, learned counsel for the respondent has relied on the following decisions of the Apex Court as well as of this High Court: (i) Hiten P. Dalal vs. Bratindranath Bannerjee reported in (2001) 6 SCC 16 (ii) Mallavarapu Kasivisweswara Rao vs. Thavikonda Ramulu Firm and Ors. reported in (2008) 7 SCC 655. (iii) Kishan Rao vs. Shankargouda reported in (2018) 8 SCC 165 (iv) Benu Roy vs. Rajib Ghosh reported in (2018) 2 TLR 463 [16] It is submitted by Mr.S.Das, learned counsel for the respondent that apart from making mere denial of the existence of debt or liability, the accused did not lead any evidence to prove that he had no debt or legal liability to be discharged and as such the learned courts below had drawn the statutory presumptions against him. As a result, the learned courts below did not commit any error in finding him guilty for the offence under Section 138 NI Act. It is, therefore, submitted by learned counsel that the judgments of the courts below do not call for any interference in this criminal revision petition. [17] To reiterate the facts, the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 15.01.2014 gave loan of Rs. 3,50,000/- to the accused on condition that the loan would be repaid within 30.11.2014. In their cross examination, both of the PWs stated that complainant gave the loan money to the accused in cash in their presence. It was suggested to both of them on behalf of the accused that they favoured the complainant as the complainant was their neighbour. Both of the PWs denied such suggestion. [20] Section 138, NI Act requires proof of the essential ingredients viz.,(i) there is a legally enforceable debt; (ii) a cheque is drawn on an account maintained by the accused with his banker for payment of any amount to another person from his account in discharge in whole or in part of the debt or liability; and (iii) the cheque is returned by the bank unpaid, either because of insufficient fund in the account of the accused to honour the cheque or that the cheque amount exceeds the amount arranged to be paid from that account by an agreement made with the bank. [21] As far as the petitioner's defence was concerned, he did not deny the fact that he borrowed loan of Rs. 3,50,000/- from the complainant respondent. He did not also deny the execution of the cheque in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" . Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist..." [26] The learned counsel of the accused petitioner has also placed reliance on the decision of this High Court in the case of Benu Roy (supra) in which this High Court following the law laid down by the Apex Court in Hiten P.Dalal(supra) held that unless the explanation offered by the accused with regard to non existence of debt is supported by proof, the statutory presumptions under the NI Act as to the debt cannot be said to have been rebutted. In this regard the following observation was made by this High Court in the case of Benu Roy: "55. That is how the Apex Court in Hiten P. Dalal (supra) has distinguished between two situations. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant. The explanation offered by the accused petitioner on the other hand is not founded on proof and it does not stand to reason. The object of statutory notice is to protect an honest drawer of the cheque by providing him a chance to make the fund sufficient in his bank account and correct his mistake. The accused petitioner could have availed this opportunity by accepting the demand notice instead of repeatedly avoiding its service. He could have accepted the notice and projected his case that he already made the repayment of the loan, had this case of him been true. Therefore, it can be safely held that the prosecution successfully discharged its burden in proving the case against the petitioner with the help of the statutory presumptions under the NI Act, and the accused has failed to rebut those presumptions and prove the contrary by offering provable explanation founded on proof. [29] With regard to the objection raised by the accused petitioner regarding the service of the statutory demand notice, learned counsel of the complainant has relied on the decision of this High Court in the case of Keshab Banik(supra) wherein this High Court has held that the notice, dul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f notice often receive liberal interpretation" (vide p. 99 of 12th Edn.). The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to Section 138 of the Act show that the payee has the statutory obligation to "make a demand" by giving notice. The thrust in the clause is on the need to "make a demand". It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does. 12. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him (vide Harcharan Singh Vs. Smt. Shivrani and Others, and Jagdish Singh Vs. Natthu Singh, . 13. Here the notice is returned as addressee being not found and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the postman. From the overall conduct of the accused, it is clear that he wanted to avoid the service of the notice. In view of the law decided by the Apex Court, the objection raised by the accused petitioner in this regard is not acceptable. Therefore, it cannot be said that the demand notice was not served on him. [32] For the foregoing reasons, this court is of the considered view that the impugned judgment dated 02.11.2017 passed by the learned Sessions Judge of Gomati Judicial District at Udaipur in Criminal Appeal No.47(3) of 2015 whereby he affirmed the conviction of the accused petitioner and modified the sentence passed by the learned trial court does not call for any interference. [33] In consequence, the conviction and sentence of the accused petitioner is upheld. He is directed to deposit the fine of Rs. 4,00,000/-(four lakhs)only in the court of the learned Sessions Judge in Gomati Judicial District at Udaipur in terms of the modified sentence within a period of 02(two) months for disbursement to the complainant respondent namely Shri Tanmoy Krishna Das, failing which the accused petitioner will suffer the default sentence in terms of the said judgment and order o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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