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TMI Blog2022 (4) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... nvict appellants has categorically stated in her cross examination that due to internal problems of Tripura Real Estate Constructions Limited (convict appellant No.1), the agreement for sale of land to the complainant respondent could not be materialised. She did not attribute any fault to the complainant respondent for non execution of the said agreement - presumption under section 139 of the NI Act arises against the convict appellants. Obviously, the convict appellants could not raise a probable defence to create doubts with regard to the existence of such debt or liability. Rather, it is the admitted position of the case that ₹ 1,00,000/- was received by the appellants as advance from the complainant respondent for transfer of land in his favour for a price of ₹ 7,00,000/- in terms of the agreement executed between the parties. Admittedly, as officers of the appellant company they were aware of the fact that advance of ₹ 1,00,000/- was received from the respondent for sale of land to him and the company had an enforceable debt to the complainant as per the terms of agreement. No land was transferred to him nor the advance was refunded to him. In these circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertisement, the complainant who was a Government employee at that time approached accused No.2 Bankim Chowdhury, Chief Managing Director of the accused company and entered into an unregistered agreement for purchasing a plot of land measuring 0308 acres at Agartala in plot No.324/2994 at Agartala Mouja recorded in Khatian No.940. Price of the land was settled at ₹ 7,00,000/- and under the said agreement, complainant paid a sum of ₹ 1,00,000/- in advance to accused No.2 Bankim Chowdhury. Accused No.2 assured on behalf of the accused company that a registered sale deed would be executed in favour of the complainant within 75 days. Even after the expiry of the period stipulated in the agreement, no sale deed was executed on behalf of the company in favour of the complainant. Rather, accused Bankim Chowdhury being the Chief Managing Director of the said company had issued a cheque vide cheque No.723424 dated 30.06.2012 of a sum of ₹ 1,00,000/- in favour of the complainant towards refund of the advance taken from him. The said cheque was drawn on Indusind Bank at its Mantri Bari Road branch, Agartala. The cheque was signed by said Bankim Chowdhury, Chief Managing Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondents on realization. Counsel appearing for the respondents in the High Court assured that the respondents would appear before the trial court on the next listed date and the issuance of summons to the respondents from the trial court was waived by the counsel of the respondents. [4] The trial court proceeded with the trial of the case. The substance of accusations were read over and explained to the accused persons in terms of section 251 Cr.P.C. They pleaded not guilty and desired to stand the trial. [5] In the course of the trial, complainant examined himself as PW-1, one Arun Kr. Roy who also entered into similar agreement with the accused real estate company for purchasing a plot from them was examined as PW-2 and Pradip Majumder, a colleague of the complainant was examined as PW-3. This apart, complainant adduced the impugned cheque dated 30.06.2012 [Exbt.1], letter of the bank conveying that the cheque was dishonoured [Exbt.2], Memo whereby the cheque was returned [Exbt.3], letters of the Director of Postal Services [Exbt.4 and 5], postal receipt [Exbt.6] and some letters of accused real estate company [Exbt.7] were taken into evidence and marked as exhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Real Estate Constructions Limited is sentenced to pay a fine of ₹ 50,000/(Rupees fifty thousand)only U/S 138 of NI Act, 1881 read with section 141 of NI Act, 1881 and in default of payment of fine by accused No.1 which is a corporate entity its representatives namely accused No. 2 Sri Bankim Chowdhury and accused No. 3 Smt. Ratna Debnath shall suffer simple imprisonment for 15(fifteen) days each. 38. The accused No.2 i.e. Sri Bankim Chowdhury is sentenced to pay a fine of ₹ 50,000/(Rupees fifty thousand)only U/S 138 of NI Act, 1881 read with section 141 of NI Act, 1881 and in default of payment of fine he shall suffer further Simple Imprisonment for a period of 15(fifteen) days. 39. The accused No.3 i.e. Smt. Ratna Debnath is sentenced to pay a fine of ₹ 50,000/(Rupees fifty thousand)only U/S 138 of NI Act, 1881 read with section 141 of NI Act, 1881 and in default of payment of fine she shall suffer further Simple Imprisonment for a period of 15(fifteen) days. [10] Aggrieved by the judgment and order of their conviction and sentence, the accused persons filed an appeal against the said judgment before the learned Sessions Judge, West Tripura, Aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued the impugned cheque and complainant by adducing sufficient evidence established before the trial court that despite presentation of the cheque at the bank more than once, the cheque was dishonoured for non availability of fund in the account of the accused. Counsel contends that presumption under section 139 NI Act arose against accused persons in the given facts and circumstances of the case and the accused persons could not discharge the presumption by adducing sufficient evidence. Therefore, the learned trial court held them guilty and convicted and sentenced them. It has been argued by the counsel that there is no error in the judgment of the trial court which was rightly upheld by the learned Additional Sessions Judge. Counsel of the respondent complainant, therefore, urges for affirming the impugned judgment by dismissing the present petition. [14] With regard to the burden of the accused in discharging the presumption under section 139 NI Act, counsel has relied on the judgment of the Gauhati High Court in Manik Lodh vs. State of Assam Anr. reported in (2008) 1 GLR 804 wherein the Gauhati High Court has held that where a person holds a cheque it is obligatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 1,00,000/- as advance after executing a written agreement with the company. It is also stated by the said two accused that as the Managing Director and the Accounts Director of the company, they were authorized to operate the accounts of the company. [16] They have not even specifically denied their signatures on the cheque (Exbt.1). The return memo issued from the United Bank of India, the banker of the complainant respondent No.1 whereby the cheque was returned to IndusInd bank for insufficient funds in the accounts of the petitioners has also been proved as Exbt.2. It is no case of the convict appellants that they have returned the advance taken from the complainant respondent by any other means. Admittedly, despite execution of written agreement between the parties and receipt of advance by the appellants, no land was transferred to the complainant respondent in terms of such agreement. DW-2 Ratna Debnath who is one of the convict appellants has categorically stated in her cross examination that due to internal problems of Tripura Real Estate Constructions Limited (convict appellant No.1), the agreement for sale of land to the complainant respondent could not be materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debnath was lawful without service of demand notice on him. In the complaint filed under section 138 NI Act, complainant has impleaded Tripura Real Estate Constructions Limited as accused No.1 and its Chief Managing Director Bankim Chowdhury as accused No.2 and Accounts Director Ratna Debnath as accused No.3. In their defence, DWs have admitted that as Chief Managing Director and Accounts Director, they were authorized to operate the accounts of the company. Admittedly, as officers of the appellant company they were aware of the fact that advance of ₹ 1,00,000/- was received from the respondent for sale of land to him and the company had an enforceable debt to the complainant as per the terms of agreement. No land was transferred to him nor the advance was refunded to him. In these circumstances, the liability on account of dishonour of the impugned cheque primarily falls on the drawer company which is a corporate liability and convict appellants No.2 and 3 as the officers of the company are vicariously liable for such offence, the principal accused is the company. In these circumstances, service of demand notice on the Chief Managing Director of the accused company is suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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