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TMI Blog2021 (3) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... and second for a debt which may become payable in future upon the occurrence of a contingent event - In the present case, it is aptly clear that the complainant provided loan to the respondent for a sum of ₹ 50,000/- on 20.09.2014 and ₹ 1,00,000/- on 19.10.2014 and on the same date, on providing of such loan to the respondent, he received two cheques(Exbt.1/A and Exbt.1/B) from the respondent. According to the complainant, towards repayment of the said amount, the respondent had issued the said two cheques. Thus, it is apparent that the respondent issued the cheques on the dates of borrowing the loan from the complainant as is revealed from the deposition of the complainant itself that the respondent promised to make repayment of the loan in the month of November, 2014 i.e., the cheque would be effective on a future date. It is trite that in a criminal jurisprudence, the burden to prove that the accused has committed the offence would lie on the complainant. Prosecution must prove the guilt of an accused beyond all reasonable doubt. The standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities . Inference of preponderanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20.09.2014 for a sum of ₹ 50,000/-(Rupees fifty thousand) and No.740949 for a sum of ₹ 1,00,000/-(Rupees one lakh) in favour of the complainant. The said two cheques were drawn on UBI, Ambassa Branch. When the cheques were presented for encashment through SBI, Ambassa Branch, the same was dishonored with the endorsement insufficient fund in the concerned account of the respondent. 3(3). The complainant, thereafter, issued a statutory notice by registered post with A/D on 15.11.2014 through his learned advocate demanding the payment within 15(fifteen) days, which was duly served upon the respondent on 18.11.2014. Thus, on account of the failure of the respondent to pay the amount in spite of the issuance of the notice, the complainant filed the complaint against the respondent under Section 138 of the said Act before the learned SDJM, Kamalpur. 3(4). Trial was conducted by the learned SDJM, Kamalpur with the framing of charge against the respondent which reads as follows: Allegation against you that on 20-09-2014 and 19-10-2014, you issued two cheques bearing No.740950 dated 20-09-2014 for ₹ 50,000/- and another bearing no.740949 dated 19-10-2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ques bearing No-740950 dated- 20/09/2014 an amounting of Rs-50.000/-(Fifty Thousands Only) and another cheque bearing No-740949 dated- 19/10/2014 an amounting of Rs-100.000/-(One Lac Only), on submission of the same in the account it would be duly honoured and advised me to encash the same from his account. 3(7). Thereafter, the complainant stated that he deposited the said two chqeues to his bankers, but by a return memo the bankers stated that the cheque amount could not be en-cashed due to insufficient fund . That led the complainant to issue the demand notice through his learned counsel, demanding the payment of the chqeue amount. However, the respondent did not pay any amount. Hence, the complainant filed the instant complaint before the learned SDJM, Kamalpur for appropriate redress. 3(8). The learned SDJM, Kamalpur after considering the evidence and materials on record held that the respondent issued those cheques in discharge of his liability and, hence passed an order of conviction and sentence as afore-stated. 3(9). The respondent preferred a statutory appeal before the learned Additional Sessions Judge, Unakoti Judicial District, Kamalpur. The appeal, on bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he would provide us an old car to launch driving school through NGO. In the meantime, I noticed his activity is not satisfactory; hence I did not proceed further with that plan. He told(sic) me that the said cheque went missing. but later, he brought false allegation of this(sic) case. 7. In his evidence, the respondent as DW1 had stated that he was involved in an NGO which used to undertake various development works in different places of Tripura, and the complainant being a Mechanic was engaged as a Site Manager with that NGO to open a Driving School and two blank cheques were signed by the respondent and handed over to the complainant to run the institution. But, on 21.11.2014, the complainant reported the respondent that those two cheques were missing from his custody for which the respondent reported the same to the police station and also to the bank. DW1, i.e. the respondent also deposed that the complainant had misused the cheques for his illegal gain. The respondent substantiated his plea that he informed the matter to the bank by way of bringing the said prayer before the learned Court in course of his examination and the said communication was marked as Exbt.D/1. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 drawer of such cheque fails to make the payment of the 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 of the receipt of the said notice. Explanation .-For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the cheques from the respondent. The above justifies that the cheques were taken by the complainant as a security cheque to advance the loan and not against any existing or past legal enforceable debt. Therefore, the cheques issued by the respondent shall not be treated as a cheque issued towards discharging any past or existing liability. 13. The deposition of PW2, Sri Dilip Dey further substantiates the fact that the complainant had received the cheques of ₹ 50,000/- and ₹ 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 ₹ 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. 14. It is trite that in a criminal jurisprudence, the burden to prove that the accused has committed the offence would lie on the complainant. Prosecution must prove the guilt of an accused beyond all reasonable doubt. The standard of proof so as to prove a defence on the part of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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