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TMI Blog2022 (7) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Petitioner : Mr. Jorgay Namka and Mr. Simeon Subba, Advocates For the Respondent No.1. : Mr. Bhusan Nepal, Advocate For the Respondent No.2. : Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan Sunwar, Assistant Public Prosecutor JUDGMENT MEENAKSHI MADAN RAI, J. 1(i). The Petitioner assails the Judgment dated 20-06-2020, in Criminal Appeal Case No.01 of 2019 of the Court of Learned Sessions Judge, South Sikkim, at Namchi which upheld the Judgment of the Learned Chief Judicial Magistrate, South Sikkim, at Namchi in Private Complaint Case No.07 of 2018. The Learned Magistrate had convicted the Petitioner herein under Section 138 of the Negotiable Instruments Act, (for short, the NI Act ) 1881 and sentenced him to pay a fine of Rs.4,00,000/- (Rupees four lakhs) only, within a period of two months from 31-12-2018 with a default clause of imprisonment. (ii) The facts briefly stated are that an Agreement for sale for a Flat situated at Siliguri, West Bengal belonging to the Respondent No.1 (hereinafter, R1 ), to be purchased by the Petitioner was entered into between them on 02-06-2017, for a consideration amount of Rs.30,00,000/- (Rupe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank s return Memos Exhibits 3 and 4 stated insufficient fund and not payment stopped by the drawer . 3(i). The Learned Magisterial Court also disbelieved the case of the Petitioner that the cheques were handed over by way of security and concluded that the accused had failed to rebut the presumption as enshrined in Section 139 of the NI Act and convicted the Petitioner herein vide Order on sentence dated 31-12-2018 which inter alia is extracted hereinbelow; 4. However, considering the financial condition of the convict, this Court deems it in the interest of justice to impose a sentence of fine of rupees 4,00,000/- (Rupees Four Lakhs only) to be paid to the Complainant within a period of 2 months from today. Further in case of failure to pay the amount, the convict shall be sentenced to simple imprisonment of 12 months. The Learned Sessions Judge, South Sikkim, at Namchi in its impugned Judgment dated 20-06-2020 while upholding the Judgment of the Learned Magisterial Court however did not discuss Section 4 of the Contract Act. (ii) Before this Court, Learned Counsel for the Petitioner reiterated the argument that there was no le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the Notice is posted will the agreement be determined between the parties. Undoubtedly, the Notice Exhibit 1 is dated 25-01-2018, Exhibit 11 stands testimony to the fact that it was booked in the post on 01-02-2018 and received by the Petitioner only on 08-02-2018. It emerges that there was no termination of Contract when the cheques, Exhibits 1 and 2 were presented by the R1 on 30-01-2018 before the Bank and came to be dishonoured. The ground taken by the Petitioner that he had stopped payment is untenable as the Bank has clearly stated in its notes Exhibits 3 and 4 that the cheques were returned on account of insufficient fund. The act of the Petitioner is clearly covered by the provisions of Section 138 of the NI Act. On the question of legal liability the explanation to Section 138 of the NI Act clarifies that the term debt referred to in the Section means to legal debt , that is one which is recoverable in the Court of law. The term liability as per Black s Law Dictionary, 10th Edition, is the quality, state or condition of being legally obligated or accountable. Liability otherwise has also been defined to mean all character of debts and obligations, an obligation one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence on this aspect by the Respondent. I hasten to add that this Court is aware that the proof so demanded in offences under Section 138 of the NI Act is not to be beyond a reasonable doubt but only extending to preponderance of probability. This too, was not established by the Respondent. The above circumstances, squarely fit the circumstances in the instant matter. The two cheques which were dishonoured surely do not come within the ambit of security as defined hereinabove. (iii) Paragraph 10 of the Legal Notice Exhibit 9 issued by the Learned Counsel for the Petitioner is evidently false as according to the contents thereof after receiving the Notice dated 25-01-2018 his client (Petitioner) requested the R1 not to present the two cheques, despite which she did. This is an unbelievable circumstance as it is evident from Exhibit 11 that the Notice dated 25-01-2018 was received by the Petitioner only on 08-02-2018. (iv) The existence of an agreement between the parties has also not been denied. The issuance of the cheques as partial payment towards the terms of the agreement has also not been denied. The evidence of the Complainant stating that the two cheques were tow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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