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TMI Blog2023 (7) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... sish Datta (arbitrator) was not cited as a witness by the complainants and no original A/C No. 11866553823 (C/C) was submitted and exhibited. Moreover, at the time of preparation of deed of addendum 03 persons namely Raiharan Majumder, Ashis Datta and Umesh Majumder put their signatures as a witnesses but they were not examined by the complainant and in respects of cheques, as per deed of addendum, were issued on 19.12.2016 and it is deposited in the bank on 31.07.2017 i.e. to say beyond the period of limitation i.e. six months. Thus, this Court is also of the opinion that the accused has successfully rebutted the mandatory presumption of law and also successfully controverted the story of the complainant. Complainant in his complaint petition as well as in examination-in-chief stated that they have been doing business of brick industries and construction work of the M/S Vida Engineering Company Ltd., and the accused was made attorney on behalf of the said Vida Engineering Company Ltd. but no document is placed by the complainants to prove the same and it is also admitted by the complainants in their cross-examination. The complainant is also failed to prove that on the day of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ura, Belonia in connection with N.I. 27 of 2017 dated 12.04.2022 between Shri Milan Paul and 3 others, complainant and Shri Rakhal Mallick, accused whereby and whereunder the learned trial Judge returned a finding of not guilty against the accused Shri Rakhal Mallick and thus acquitted the accused for the offence punishable under Section-138 of the Negotiable Instrument Act, 1881. [3] The brief facts of the present case is that one complaint has been filed by the complainants alleging, inter alia that all the complainants and the accused person had done business of brick industry and construction works with M/S Vida Engg.Co. Ltd. Kolkata and after departure of the said Vida Engg. Co. Ltd the accused made attorney on behalf of the said Vida Engg. Co. Ltd. to continue with their works at Belonia and in continuation of brick industry business of M/S Santoshi Maa Brick Industry, Sonaichari owned by the complainants and accused, they jointly took loan from SBI, Belonia Branch which became NPA and the residence of Milan Pal was attached as mortgaged land which is located just adjacent to the Belonia P.S and due to liability taken by the accused to pay the bank loan by himself, on 19.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted for the offence as punishable under Section 138 N.I.Act, 1881. The surety of the accused person also stand discharged from his respective liability of the bail bond. [7] Mr. S. Deb, learned senior counsel appearing for the appellants in support of his case has submitted that the learned trial Court has committed manifest error of law and facts in appreciating the facts and circumstances of the case in acquitting the respondent No.1. The learned Court below has erred in holding that only photocopy of the return memo was submitted but, the records would reveal that except one, all other original return memos were filed and even the photocopy of one of the said return memo has been admitted into evidence without any objection by and on behalf of the respondent No.1. [8] The learned Court below has overlooked the reply filed on behalf of the respondent No.1 through his learned advocate on 20.11.2017 wherein, he admitted his in-debtness. The learned Court below has arrived at a wrong decision as to the legal demand notice and in so arriving he misconstrued and misunderstood the decision in Suman Sethi v. Ajay K. Churiwal and another reported in (2000) 2 SCC 380 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Court shall be pleased to convict the accused adequately apart from recovery of cheque part demanded amount and oblige thereby. [11] The learned Court below has committed manifest error of law in arriving at the decision that the accused has successfully rebutted mandatory presumption of law and also successfully controverted the story of the complainant and has wrongly and illegally arrived at the opinion referring to the business and other facts including that the cheques were allegedly issued on 19.12.2016 while the cheques themselves bear the date i.e. 31.07.2017. [12] In support of the case of the appellants, Mr. Deb, learned senior counsel has placed his reliance on a decision of the Apex Court in Rohitbhai Jivanlal Patel v. State of Gujarat and Another, reported in (2019) 18 SCC 106, wherein, the Court has held thus: 6.1. The High Court observed that if the transaction in question was not reflected in the accounts and income-tax returns, that would at best hold the assesse or lender liable for action under the income-tax laws but, if the complainant succeeds in showing the lending of amount, the existence of legally enforceable debt cannot be denied. The High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge the burden which had shifted upon him. It is to be noted that the respondent No.2 has admitted his signature on the impugned cheque. At no point of time, the cheque has been disputed Once this fact is acknowledged that the signature on the cheque is that of the respondent No. 2-accused, section 139 of the Negotiable Instruments Act would mandate the presumption that the cheque concerns a legally enforceable debt or liability. Of course, this presumption is in the nature of rebuttal and onus is on the accused thereafter to raise a probable defence. 64. As can be noted from the chronology of events and the material that has been placed before this Court that the defence raised by the accused is not at all probable. The respondent No.2-accused states that the money was given as a hand loan by his friend Jagdishbhai and not the appellant, also gets falsified completely by the version of Jagdishbhai. It appears that in case of all the seven cheques when notices were given prior to the filing of the complaint, he has chosen not to reply to four of the notices. Either on account of insufficiency of the funds or because he has closed account that the cheques could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted a serious error by not discharging its obligation of recognizing the evidentiary value and not appreciating the positive evidence which led to the reasonable proof of legally enforceable debt existing on the side of the original complainant. [13] In Rangappa v. Sri Mohan : (2010) 11 SCC 441, this Court has reiterated and summarized the principles relating to presumptions under Sections 118 and 139 of the NI Act and rebuttal thereof in the following:- 26. In the light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it is based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttal presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision before the learned Sessions Judge, Belonia and learned Sessions Judge in Crl. Rev.02 of 2019 pleased to dismissed the same and hence, the Xerox copy of return memo of Ext. 1 cannot be read in evidence. [15] In support of his case Mr. Majumder, learned counsel appearing for the respondent No.1 has placed his reliance on a decision of the Apex Court in Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel and Another, reported in (2023) 1 SCC 578 wherein, the Court has observed thus: 20. The judgments of this Court on post-dated cheques when read with the purpose of Section 138 indicate that an offence under the provision arises if the cheque represents a legally enforceable debt on the date of maturity. The offence under Section 138 is tipped by the dishonour of the cheque when it is sought to be encashed. Though a post- dated cheque might be drawn to represent a legally enforceable debt at the time of its drawing, for the offence to be attracted, the cheque must represent a legally enforceable debt at the time of encashment. If there has been a material change in the circumstance such that the sum in the cheque does not represent a legally enforceable debt at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Twenty Lakhs. The accused did not even give me that amount as a reward/gift. 24. It was the contention of the first respondent that the cheque was not dated. On the other hand, it was the contention of the appellant that the cheque was dated 17 March 2014. The Courts below did not record a finding on whether the cheque was un-dated or was dated 17 March 2014. However, it was conclusively held that the cheque was issued by the first respondent for security on the date when the loan was borrowed. It was also categorically recorded by the Courts below that a sum of rupees 4,09,315 that was paid by the first respondent was paid to partly fulfil the debt of rupees twenty lakhs. The appellant in his cross-examination has stated that a cheque against a cheque was given when he loaned the sum of rupees twenty lakhs. Thus, it can be concluded that the cheque was given as a security to discharge the loan, either undated or dated as 17 March 2014. Merely because the sum of rupees 4,09,315 was paid between 8 April 2012 and 30 December 2013, which was after 17 March 2014, it cannot be concluded that the sum was not paid in discharge of the loan of rupees twenty lakh. The sum of rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a whole. In the notice, demand has to be made for the said amount i.e. the cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to the said amount there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving the break-up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, the notice might well fail to meet the legal requirement and may be regarded as bad. [16] After hearing the legal representatives of the parties and having observed the observations made in different citations, let us revisit the evidence and application of law and the facts of the instant case. The respondent No.1 admitted of issuing of 04 cheques vide Exbt.2 i.e. to say in reply of notice but at the same time he submitted that the issuing of cheques was not vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the 04 cheques, i.e., Exbt.1 cheque bearing No. 360094 dated 31.07.2017,(return memo is xerox copy) Exbt.5 cheque bearing No. 360093 dated 31.07.2017, Exbt. 6 return memo, Exbt.10 cheque bearing No. 360095 dated 31.07.2017, Exbt. 11 return memo, Exbt. 8 cheque bearing No. 360096 dated 31.07.2017 and Exbt. 9 return memo, were issued for an amount of Rs.40,00,000/- ( Rs. 10,00,000/- x 4) but the demand notice was made for payment of only Rs. 13,50,000/-. Hence, the notice in question is imperfect in this case as it did not specifically contain any demand for the payment of the cheques amount. [21] Once the fundamental ingredients which gives rise to cause of action under Section-138 of N. I. Act have been established a mandatory presumption under Section-139 of N. I. Act, is effected in favour of complainant and it also extends to the existence of legally enforceable liability itself. A three judged bench of Hon'ble Apex Court in Rangappa v. S. Mohan, reported in (2010) 11 SCC 441 has held that: In the light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustry, Sonaichari owned by the complainants and accused, they jointly took loan from SBI, Belonia Branch which became NPA and mortgage land of Milan Paul i.e. his residence was attached and they prepared deed of addendum where as a deed of retirement of partners from the partnership firms was executed on 28.06.2013, SL NO. 2640/2013 and as per said deed (para -8 at page -10) Milan Paul, Khokan Ch Bhowmik and Rakhal Mallik has joint liability to release the mortgage properties of various bank loan accounts. [24] It is further alleged that after many differences between the existing and retired partners regarding the outstanding loan they agreed Asish Datta (Arbitrator) that Rakhal Mallik takes full and final responsibility for release the mortgage properties by liquidating the outstanding balance of SBI A/C No. 11866553823 (C/C) and other partners shall not liable for outstanding balance, therefore, accused Rakhal Mallik issued 04 cheques in total of Rs. 40,00,000/- i.e. Rs. 10,00,000/- each to the Khokan Ch. Bhowmik, Milan Paul, Bisweshwar Datta and Ratan Mallik vide No. 360094, 360093, 360096 and 360095 post dated on 19.12.2016 A/C No. 34015610600 of SBI on the condition that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dendum was executed. [27] On the other hand, learned counsel for the respondent No.1 submitted that if there is a partnership farm then as per provision of 141 of N.I. Act all the partners are jointly liable to liquidate their loan amount. Ld. counsel further submitted that the original deed i.e. the deed of retirement of partnership which was executed as per the complainant (Deed of Addendum ,i.e. Ext.3) on 28.06.2013, Sl. No. 2640/13 was not placed before the court and it is also admitted by the complainants in their cross-examination. Learned counsel seriously disputed and denied the legal debt and liability on accused person on the ground that on the date of execution of cheque as alleged by the complainant there was no existing debt or liabilities. In the present case, for the purpose of ready reference reproducing the cross-examination the complainants, i.e. PW 1, PW 2, PW 3 and PW 4 which are somewhat similar in nature as thus: ...It is a fact the hand writing and ink used for writing the date in his cheque is different that of the ink and hand writing of the remaining portion of the same but they did not submit any document as regard alleged appointment of the accused a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there has been a debt of Rs.29,00,000/- with SBI, Belonia Branch in the name of partnership farm. [30] It is also stated by the complainant that during continuation of M/S Santoshi Maa Brick Industries, Sonaichari, the complainant and accused jointly took loan from SBI, Belonia and which became NPA and for that purpose land of Milan Pal was mortgaged but no such documents was adduced by the complainant to prove the above fact before the court and it is also admitted by the complainants in their cross-examination. Complainant stated that on the basis of deed of addendum accused had taken liability to liquidate the outstanding balance of SBI account No. 1186553823(CC) but no such bank account is proved before the court and the original deed of retirement was also not placed before the court which was executed as alleged in the deed of addendum on 28.06.2013 Sl. No. 2640/2013. Notice issued by the complainant for the payment of bounced cheque amount is not contain cheque amount, as discussed above, hence, the notice in this connection is imperfect as it did not specifically content in demand for the cheque amount. [31] For the purpose of reference, Section-141 of the Negoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned senior counsel appearing for the appellants i.e. Rohitbhai Jivanlal Patel v. State of Gujarat and Another and Rangappa v. Sri Mohan, are not relevant to the facts of the case and this Court places reliance on the conclusion given by the Hon ble Apex Court in Suman Sethi v. Ajay K. Churiwal and another reported in (2000) 2 SCC 380 and which was also dealt in Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel and Another, reported in (2023) 1 SCC 578 wherein, the Apex Court in the light of the requirement under Section-138 of NI Act has specifically dealt with the ingredients leading to the cause of action as said amount i.e. the cheque amount. [35] The subject matter involved in this petition is not the cheque amount but, it is a settlement of account of the transaction made is the amount made under the demand notice i.e. Rs.13,50,000/- but whereas the cheque amount is Rs.10,00,000/- each x 4 = Rs.40,00,000/-. Since, litigation under Section-138 is purely technical in nature, the scope of the same cannot be enlarged. [36] Having regard to the evidence on record and the discussion made hereinabove, this Court is of the view that the appellants have failed to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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