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TMI Blog2022 (1) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... rship firm, but, since there was no sufficient fund in the account of the partnership firm, the respondent no. 1 had issued a cheque of ₹ 14 lakh to the complainant from his personal account - during examination under Section 313 Cr.P.C., the respondent no. 1 has specifically stated that he had issued two cheques to the complainant on good faith and the complainant had returned the cheque being no. 648413, but, he did not return the cheque being no. 648416. Moreso, this plea of the respondent no. 1 has been proved when he adduced evidence to support his plea. In the instant case, the respondent no. 1 came forward to adduce evidence and in the opinion of this court, the respondent no. 1 had successfully rebutted the presumption of law, which is supposed to be drawn in favour of the appellant-complainant - Since this court is satisfied that the view taken by the learned trial court is a probable one, then, this court is not inclined to disturb or dislodge the findings of the learned trial court. It is settled proposition of law that when there are two probable views, the view favourable to the accused should be accepted by the court. Appeal dismissed. - Crl. A. 19/2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estated. Being aggrieved by and dis- satisfied with the said judgment of acquittal passed by learned Chief Judicial Magistrate, the complainant has preferred the instant appeal before this court. 5. In course of hearing of the present appeal, I have heard Mr. PK Biswas, learned senior counsel assisted by Ms. S. Debbarma, learned counsel appearing on behalf of the appellant-complainant (here-in-after referred to as the complainant). Also heard Ms. R. Purkayastha, learned counsel appearing on behalf of the respondent no. 1 and Mr. S. Ghosh, learned Additional PP appearing on behalf of the State-respondent. 7. I have gone through the contents made in the complaint application, examined the records and also perused the judgment passed by the learned Chief Judicial Magistrate. 8. From the judgment of the learned trial court, it comes to light that the learned trial court has taken up the following points for determination: Whether the accused issued one Cheque bearing No.648416 dt.04.02.2015 to the complainant for an amount of ₹ 14,00,000/- in discharge of his liabilities which was subsequently dishonoured for insufficiency of funds in his account, as the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as failed to explain when, how and why the complainant had paid ₹ 14 lakh to him. Moreso, according to learned counsel for the respondent, the complainant has intentionally suppressed the material fact that the complainant alongwith the respondent no. 1 and others were involved in a partnership business and the transaction was occurred in course of that partnership business. Ms. Purkayastha, learned counsel has invited my attention to an Agreement dated 03.01.2015 (Exhibit-A series) entered into between the partners of the business including the complainant and the respondent no.1 and that ₹ 14 lakh was paid out of the said Agreement. 12. I have given my thoughtful consideration to the submissions advanced by learned counsel appearing for the parties to the lis. 13. Before I advert to the merits of the case, I am inclined to look at the settled proposition of law as emanated in Rangappa (supra) where the Hon‟ble Supreme Court at para 22 had relied upon the principles drawn in its earlier decision in Hiten P Dalal vs. Bratindranath Banerjee, which is reproduced here-in-below: [scc, PP- para 22] 22. Because both Sections 138 and 139 require that the Court `sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. 14. Keeping in mind the aforesaid ratio laid down by the Apex Court, I have minutely perused the evidences, both oral and documentary, as let in by the complainant as well by the respondent. 15. It is observed that the complainant has simply stated that out of good friendly relation, the complainant had paid ₹ 14 lakh to the respondent no.1 as loan. Against said loan amount, the respondent no. 1 had issued post dated cheque payable at Tripura State Co-operative Bank Ltd., Belonia Branch. Due to non-payment of said amount, the complainant had placed the cheque to his own banker for realization of the said amount of ₹ 14 lakh, but, it was returned by the banker of the respondent no.1 with the remark Insufficient Fund . The complainant issued demand notice claiming payment of ₹ 14 lakh, but, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided bricks for an amount of ₹ 4,50,000/- and by cash ₹ 2,50,000/- to the complainant. 19. During cross-examination, it is noticed by this court that the complainant did not make any attempt to deny about the said factual aspects, as surfaced from the chief-examination of DW-2. During cross-examination, it has further come to light that the said amount of ₹ 14 lakh was paid to the complainant out of the liability of the entire partnership firm. Both DW- 1 and DW-2 have affirmed that though the payment of ₹ 14 lakh to the complainant was out of the liability of the partnership firm, but, since there was no sufficient fund in the account of the partnership firm, the respondent no. 1 had issued a cheque of ₹ 14 lakh to the complainant from his personal account. I have further noticed that the complainant has not specifically denied that he did not receive ₹ 7 lakh out of said ₹ 14 lakh. It is also the specific case of DW-1 that though the complainant had returned back the cheque no. 648413 dated 04.02.2015, but, he did not return the cheque being no. 648416 despite repeated requests. I have noticed that during examination under Section 313 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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