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TMI Blog2022 (9) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3,23,600/- in favour of the complainant drawn on Oriental Bank of Commerce which was presented to Punjab National Bank, Malda Branch. The cheque was returned with the endorsement "payment stopped by the borrower". The complainant then issued a notice calling upon the accused person to pay the said amount. Despite receipt of notice the accused person refused to act in terms of the notice. Hence, petition of complaint was filed and learned Trial Court having found prima facie case issued process under Section 138 of the Negotiable Instrument Act. Accused person upon receipt of such notice surrendered to the jurisdiction of learned Trial Court. He was examined under Section 251 of the Cr.P.C. and pleading innocence he claimed to be tried. 3. This case has chequered history. Earlier the petition of complaint was disposed of by judgement and order of conviction passed by learned Chief Judicial Magistrate, Malda on 19th June, 2011. Said judgement was challenged in an appeal before the learned Additional District and Sessions Judge, 5th Court, Malda. Learned Appellate Court was pleased to set aside the judgement and order of conviction passed by learned Trial Court. The complainant cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the following ingredients:- (a) Cheque was issued; and issued in discharge of liability of the drawer. (b) Same was presented; (c) It was dishonoured; (d) A notice in terms of Section 138 N.I. Act was served; (e) Despite service of notice, no payment was made. 7. Hon'ble Supreme Court (pronounced) in JUGESH SAHGAL VS. SHAMSHER SINGH GOGI reported in (2009) 14 SCC 683 held:- "8. It is true that Section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so, yet to fasten a criminal liability under the said provision, necessary ingredients of the Section are to be satisfied. Section 138 of the Act reads as follows: 138. Dishonour of cheque for insufficiency, etc., of funds in the account--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice; 10. Being cumulative, it is only when all the afore-mentioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act." 8. In M. S. NARAYAN MENON VS. STATE OF KERELA reported in (2006) 6 SCC 39, Hon'ble Supreme Court held that the presumptions under Sections 118 (a) and 139 of the Act are rebuttal and the standard of proof required for such rebuttable is preponderance of probabilities and not proof beyond reasonable doubt. The Hon'ble Court observed:- "In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words 'proved' and 'disproved' have been defined in Section 3 of the Evidence Act. Applying the said definitions of 'proved' or 'disproved' to principle behind Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glish Bazaar P.S. Case No. 220/2003 was registered on 30th June, 2003 and in the said information Subhrangshu Das stated that one Ajit Sinha is the owner of Mourya Finance Company Limited. Complainant took one Taseruddin son of late Faijuddin Sk. who intended to purchase a tractor from the complainant on hire purchase, financed by Mourya Agency. Taseruddin paid Rs. 71,000/- to the complainant out of which he paid a sum of Rs. 64,000/- to Ajit Sinha the owner of Mourya Finance Company Limited and it was Ajit Sinha who handed over the cheque in question drawn on Oriental Bank of Commerce by A.B. Construction owned by Ajay Basu. 15. Ajay Basu the proprietor of A.B. Construction adduced evidence as DW-2 and stated that he was working for gain as Manager for Mourya Finance Company. His employer obtained blank cheque while giving him employment as a security. The said cheque was illegally used by the owner of Mourya Finance Company Limited, Sri Ajit Sinha. 16. It appears from the available document, Exhibit-E that the vehicle in question was registered in the name of Tinkori Mandal on 6th August, 2003 and the vehicle was acquired on hire purchase with the financial assistance from Mald ..... X X X X Extracts X X X X X X X X Extracts X X X X
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