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TMI Blog2016 (11) TMI 1706X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- (rupees two lakhs sixty thousand) which will go to the complainant and in default the said convict was directed to undergo further R.I. for one year. 3. The fact relevant for the purpose of adjudication of this appeal can be stated in brief thus: That the complainant was a section Engineer at Kanchrapara Railway Workshop and the accused was his junior. During their days of service, the present opposite party/accused expressed his desire to sell out his premises and the complainant/appellant intended to purchase the same. There was an agreement for sale dated 30th Chaitra, 1409 B.S. and the price for the said land was fixed Rs. 4,00,000/- and the complainant paid an advance of Rs. 1,00,000/- towards the earnest money and the balance was scheduled to be paid within six months at the time of registration. After the execution of the said agreement, the accused failed to hand over his title deeds despite request by the complainant. Thus, the agreement to sale failed and the complainant demanded that the accused should pay him back the earnest money alongwith interest and damages thereof. In view of such request, the accused on 22.7.2003 gave the complainant on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was not sufficient fund to pay the dues. Nothing came out from his mouth that actually, this accused/complainant gave any instruction to the said banker to make stop payment. 6. Mr. Chowdhury, learned Advocate appearing on behalf of the appellant, took me to the judgment of the First Appellate Court and submitted that the learned Appellate Court disposed of the appeal on a wrong footing. He took to the copy of the judgment (running page No. 23) wherein the learned First Appellate Court reversed the judgment of the learned Trial Court mainly on the ground that the complainant appellant made necessary insertion in the cheque to his advantage by inserting inflated amount. The First Appellate Court also did not accept charging of huge interest to the tune of Rs. 30,000/- for the principal amount of Rs. 1,00,000/- for a period of three months only. He further submitted that this period of three months was also wrongly calculated. He submitted that in the said judgment the Court however accepted the finding of the learned Trial Court that the cheque was signed by the accused/respondent but the Court held that the body of the cheque was filled in by the complainant including the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot say anything regarding the instruction received from the accused to stop payment and thus he submitted that there is no reason to believe the different stories made to defeat the claim of the present appellant/complainant. 11. Mr. Banerjee the learned advocate appearing on behalf of the opposite party submitted by taking me to the agreement (Exbt. 1) to show that the agreement was effected either on 13th or 14th April, 2003, whereas the stamp paper was purchased as back as on 7.2.2003 and as such this agreement should not be believed. He further submitted that the said agreement was not duly marked as exhibit being hit by sections 59 and 67 of the Indian Evidence Act. He also contended that the agreement gave six months' time to fulfill the contract but no such time was given to this opposite party and the case was filed before that. He further contended that if the agreement goes then it cannot be said that the said cheque was issued to meet up the existing liabilities and as such section 138 of the N.I. Act cannot have any application. 12. He cited the decision of the Apex Court Vijay v. Laxman and another 2013 (123) AIC 8 (SC) : (2013) 3 SCC 86 : 2013 (81) ACC 483 (SC), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and on that fact the Hon'ble Single Judge of this Court took recourse to section 20 of the Act of 1881 and decided that as per the said provision where one person signs and delivers to another a paper stamped in accordance with law relating to negotiable instrument, either wholly blank or having written thereon, an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp. 16. The Hon'ble Single Judge in Paragraph No. 8 held that the provisions of section 20 further provides the person so signing shall be liable upon such instrument, in the capacity in which he signs the same, to any holder in due course for such amount, provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. 17. In Paragraph No. 9 of the said judgment the Court observed "........On a plain reading of the aforesaid provisions, it is abundantly clear even if an incomplete negotiable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich myself presided) decided one criminal appeal being CRA No. 605 of 2012, Dr. Asim Kumar Chatterjee v. State of West Bengal and others, decided on 17.9.2015 wherein this Court observed Much was argued regarding the legal position as to the presumption in favour of the holder of a cheque. It is now the admitted position that mere signing of a cheque and handing it over to the other side is one good execution of negotiable instrument as reiterated by this Court in its decision in Nita Kanoi @ Bansal (supra). 20. It is also a settled position of law that the presumption under section 139 of the N.I. Act postulates that whenever a cheque or negotiable instrument is issued in favour of the other side, then the Court can presume that it was issued in discharge of existing liability. It is true that there is no presumption as to the existence of debt or liability and it is to be proved by the complainant before the floor of the Court. 21. I have gone through the 'bainapatra' it was executed on 30th chaitra, 1409 BS corresponding to 14th of April, 2003 it is true that there is no signature of the complainant on the said 'bainapatra' even though it was a bipartite agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablish the fact that this particular cheque No. 142721 was lost on that particular date. Unfortunately for the present opposite party no cheque number was disclosed in that GD entry. It is difficult to co-relate this cheque leaf vis-a-vis. the cheque book No. 2360-080. On scrutiny of the GD entry I can say further that in the GD entry no name of the bank was disclosed thus according to me this GD entry was lodged by the private opposite party in a hurry just to make out a case in future to defeat any subsequent claim. But, that is not enough to disprove the entire circumstance. This Court is not unmindful of the submission made by Mr. Chowdhury appearing on behalf of the appellant by taking me to the evidence of P.W. 2 that nothing was even suggested by this opposite party/accused that he instructed his banker not to give effect to the cheque or in other words he instructed to make 'stop payment' on the ground that the said cheque leaf was lost. This non assertion will also prove that the story of theft as noted in the G.D. Entry was just to defraud his creditor. 24. The learned First Appellate Court came to the conclusion that the said cheque was at least signed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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