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TMI Blog2021 (4) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... they were known to each other. The respondent borrowed a sum of Rs. 1,30,000/- on 30.10.2007 from the petitioner for purchasing a Maruti car for doing business. While taking the loan, the respondent assured the petitioner that she would repay the loan within six months. The petitioner then borrowed Rs. 50,000/- from Sri Swapan Pal (PW-2) and Rs. 80,000/- from his friend Sri Sajal Laskar and gave the entire sum of Rs. 1,30,000/- as loan to the respondent. Despite lapse of the assured period of six months, the respondent did not repay the loan to the petitioner. As a result of constant persuasion of the petitioner, the respondent ultimately issued a cheque in his name bearing No. MPS/M 028821 dated 22.05.2009 for a sum of Rs. 1,30,000/- drawn on UBI, G.B Hospital extension counter at Agartala against her Savings Bank Account No.1449 towards repayment of the loan. The petitioner presented the said cheque for encashment in UCO Bank, High Court extension branch where he maintained Savings Bank Account No.4485. The cheque was dishonoured for insufficiency of fund in the said account of the respondent and the fact was informed to the petitioner from his bank vide cheque returning memo da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f UCO Bank, High Court Branch in exercise of power under Section 311, Cr.P.C and examined the witnesse as Court Witness(CW) No.1. Similarly, the trial Court summoned the Branch Manager of UBI, G. B. P Hospital extension branch and examined him as Court Witness(CW) No.2. [8] After the recording of the prosecution evidence and examination of the Court witnesses was over, the trial Court examined the accused respondent under Section 313 Cr. P.C and recorded her statement. She pleaded innocence and claimed that the charge was foisted on her. She also desired to adduce evidence on her behalf. Accordingly, the accused examined two witnesses including herself. She examined herself as DW-1 and one Sanjib Roy, an advocate's clerk as DW-2. [9] On appreciation of evidence, the learned trial Court arrived at the conclusion that the case was proved against the accused respondent and accordingly, she was found guilty of offence punishable under Section 138 of the N.I Act and she was convicted for the said offence. After hearing on sentence, she was sentenced to a fine of Rs. 1,30,000/- and in default to suffer S.I for four months. It was ordered that the fine on realisation be paid to the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ress. The PW then approached the Court by filing a complaint under Section 138 of the Negotiable Instruments Act, 1881. In the cross examination of the witness, there is no denial of payment of said loan to the accused by the complainant. it would be appropriate to reproduce the cross examination of PW-1 which is as under : "The accused is an advocate's clerk and used to work with me. I gave loan to the accused for Rs. 1,30,000/-. I gave the money after collecting it from Swapan Paul and Sajal Laskar. I have given the money in full amount at a time in presence of Swapan and Sajal in cash and a money receipt was issued in my name only. I have not given any receipt to Swapan and Sajal for taking money from them. I deposited the cheque on 25.05.09 and on 27.05.09 I was informed about dishonour of cheque. I gave advocate notice on 01.06.09. The demand notice was not received by the accused and the notice was returned but I do not remember the date of return. I have after refusal of notice given the address of the accused to post office, I have not submitted any copy to show that I submitted it to the post office. It is not a fact that I wilfully sent the demand notice to wrong addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e signed blank cheque and stamp papers to the complainant on condition that those documents would be returned to her after repayment of the loan. Thereafter, she paid Rs. 80,000/- to the complainant by paying monthly instalments of Rs. 5000/- for 16 months though she had taken a loan of Rs. 50,000/- only. Despite repayment of loan, the complaint did not return the cheque and stamp papers to her. The matter was later settled between them and the said blank cheque and stamp papers were destroyed by the complainant in her presence. Subsequently, she received a notice from Court and came to know that complainant filed a case against her for realisation of Rs. 1,30,000/-. According to the DW she had never taken such loan from complainant. She stuck to her version that she had taken a loan of Rs. 50,000/- only from the complaint for which she paid him Rs. 80,000/- at the rate of Rs. 5000/- per month in 16 instalments. In her cross examination she denied having issued a cheque dated 22.5.2009 of a sum of Rs. 1,30,000/- to the complaint. She however, admitted that signature in cheque No. 028821 was her signature. According to her she issued two blank cheques in the name of the complainant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant extract of the clearance register was produced by the witness in Court to prove the dispatch of the said cheque to UBI G, B Hospital extension branch for clearance. The trial Court after comparing the copy of the said document with the original produced by the Bank marked the copy as Exbt.C/1. In Cross examination the witness denied to have produced a manufactured document in the name of cheque clearance register. [18] CW-2 was the Branch Manager of UBI G.B. Hospital extension branch where the accused had maintained his account. The CW submitted a certified statement of the account of the accused for the period from 11.05.2009 to 27.07.2009 which was marked as Exbt. C/10. The PW further stated that old account number of the accused was 1449 which was later converted into new account No.1507010101449. The witness confirmed that the cheque returning memo (Exbt.-3) was issued from Agartala Branch of UBI as the Agartala Branch of UBI was the clearance branch. According to the witness, the said cheque was sent from UCO Bank district Court Branch, Agartala for clearance. In his cross examination, the PW stated that a cheque may be dishonoured for reasons other than insufficiency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emed to have committed an offence and shall...." 22. In Kumar Exports, it was held that mere denial of existence of debt will not serve any purpose but accused may adduce evidence to rebut the presumption. This Court held as under: "20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Court will not be upsetting the judgment of acquittal, if the view taken by Trial Court is one of the possible views of matter and unless the Appellate Court arrives at a clear finding that the judgment of the Trial Court is perverse, i.e., not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law. Such general restrictions are essentially to remind the Appellate Court that an accused is presumed to be innocent unless proved guilty beyond reasonable doubt and a judgment of acquittal further strengthens such presumption in favour of the accused. However, such restrictions need to be visualised in the context of the particular matter before the Appellate Court and the nature of inquiry therein. The same rule with same rigour cannot be applied in a matter relating to the offence under Section 138 of the NI Act, particularly where a presumption is drawn that the holder has received the cheque for the discharge, wholly or in part, of any debt or liability. Of course, the accused is entitled to bring on record the relevant material to rebut such presumption and to show that preponderance of probabilities are in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tentamount to gross miscarriage of justice. On scrutinizing the impugned Judgment of the High Court from the aforesaid stand point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence.*****" [25] It is a settled proposition of law that mere issuance of a cheque and its dishonour would not constitute an offence by itself under Section 138 N.I Act, 1881 unless the basic elements of Section 138 and the eventualities mentioned in Clauses (a), (b) and (c) in the proviso to Section 138 of the N.I. Act, 1881 are satisfied. For better understand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque. (iii) It has to be proved that the said cheque was returned by the bank unpaid either because of insufficiency of fund in the account of the accused or because it exceeded the amount arranged to be paid from such account of the accused by an agreement made by him with the bank. (iv) After the cheque is dishonoured, the payee or the holder of the cheque is required to make a demand for payment of the cheque amount by giving a notice to the complainant/ drawer of the cheque within 15 days of receipt of the information by him from the bank. (v) Further, it has to be proved that the accused/drawer of the cheque failed to pay to the complainant the cheque amount within 15 days of receipt of the said notice. [26] With regard to the service of statutory notice, accused pleaded that she did not receive any such notice after the cheque issued by her was allegedly dishonoured. The complainant seems to have proved by adducing documentary evidence that he issued such notice (Exbt.4) within 15 days from the date of his receiving the information from the bank that the cheque was dishonoured for insufficiency of fund in the account of the accused. In this regard it has been held b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue No.028821 is my signature" [29] The fact that she had the account in UBI, G.B. Hospital Extension branch and that fund in her account was insufficient when the impugned cheque was drawn by her is also proved by the branch manager of the said bank who has been examined as CW-2 by producing documentary evidence. CW-2 has proved the fact that the said cheque which was presented by the complainant for encashment in UCO Bank, District Court Branch was sent to UBI at Agartala branch for clearance from where the cheque was returned for insufficiency of fund vide cheque returning memo (Exbt.3). [30] CW-1, who was the Branch Manager of UCO Bank, District Court Branch, later renamed as High Court Branch also proved the presentation of the impugned cheque by the accused in UCO Bank and the fact that the same was sent for clearance to UBI. [31] It has surfaced on record that the accused admitted that she once borrowed money from the petitioner for repaying her loan taken for purchasing a Maruti Car. According to her amount was Rs. 50,000/- for which she repaid Rs. 80,000/- in instalments to the accused. Her defence that she issued two blanks cheques to the complainant and the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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