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TMI Blog2023 (8) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... have Xerox copy. No transaction is established to consider the cheque amount as legally enforceable debt. Moreover, the citations referred by Mr. D. Sarkar, learned counsel for the appellant is of no relevance to the present context of the case. This court feels that the capacity to advance loans to the accused persons has not been established by the complainant and the alleged loans was not reflected in the ITR by the complainant. The defence of the accused persons that they had not taken any loan from the complainant and signing the blank cheque as security for loans of lesser amount has been subsequently filled up for an inflated amount and misused in filing the present complaint seems quite probable. This Court is of the view that the appellant has failed to prove his projected case against the accused persons and consequently, the instant appeal preferred by the appellant stands dismissed. - Crl. A 16 of 2022 and Crl. A 17 of 2022 - - - Dated:- 20-7-2023 - HON BLE MR. JUSTICE T. AMARNATH GOUD For Appellant(s) : Mr. D. Sarkar, Adv. For Respondent(s) : Mr. Rajib Saha, Adv. Mr. S. Debnath, Adv. JUDGMENT ORDER Both these appeals are consolidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: The cheque in question is completely false and fabricated and he did not issue any cheque in favour of the complainant. [4] The learned trial court framed charged under Section 138 of NI Act and to bring home the guilt of the accused the complainant had to prove the elements of section 138 of NI Act by crossing following legal formalities. a) The cheque was drawn by the drawer on an account maintained by him with the banker for payment of any amount of money out of that account to the complainant. b) The said payment was made for discharge of legally enforceable debt or other liability, in whole or in part. c) The said cheque were returned unpaid by the bank. d) The cheque was presented to the bank within a period of three months from the date on which it was drawn or within the period of its validity whichever is earlier. e) The prayer of the Holder in the due course of the cheque as the case may be made a demand for the payment of the said amount of money by giving the notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. f) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anker of the accused on 10.05.2021 returned the said cheque dishonoured mentioning with remarks, Insufficient fund . It is further case of the complainant that he requested the accused to pay the cheque amount but the accused did not pay the said amount and also did not pay any heed after which a legal demand notice dated 20.05.2021 was sent to the accused through India Post Service and also requested the accused person to make payment within 15 days from the date of receipt of the said notice and it is evident that on 25.05.2021, the accused person received the said demand notice and inspite receiving of notice the accused did not take any step to liquidate his liability then the complainant was constrained to file the present case. [8] On the other hand, the accused in his plea of defence recorded on 29.09.2021 pleaded not guilty and claimed trial and stated as follows: The cheque in question is completely false and fabricated and he did not issue any cheque in favour of the complainant. [9] The learned trial court framed charged under Section 138 of NI Act and to bring home the guilt of the accused the complainant has to prove the elements of section 138 of NI A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused persons. The relevant portion of the above cited judgment is extracted herein under: 13. The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 886322, dated 8-2-2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probable. 16. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that: 6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumpti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -advance of Rupees one lakh to the accused by the complainant and issuance, of the cheque by the accused assuring repayment of the amount. Section 138 has been incorporated to protect the holder of a negotiable instruments in due course. If a cheque is issued and the payee presented the cheque for encashment and it is dishonoured for not having the adequate amount in the accut of the drawer of the cheque and he is informed by a notice by the payee and if it is found that still the drawer of the cheque fails to make the payment, he is liable to be booked under section 138 of the NI Act. 8. According to the complainant, notice was sent, on 14.12.2005, through a courier service and the notice received by the accused Ext. 4 is the document proved by the complainant in respect of notice and Ext. 5 is the copy of the notice. Ext. 4 (consignment note) indicates, the names of the consigner and consignee and a separate block with the heading received by consignee in good condition . The name of the consigner Keshab Banik has been mentioned as M/s. Electronics, Battala, Agartla and in the Receipt Column an initial with date 17.12.2005 has been written which indicates that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e: Provided that, where instrument has been obtained for its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 46. In Hiten P Dalal (supra) the Apex Court has distinguished or made distinction between the two types of presumption but also has delineated the nature of evidence required to rebut the two. In the case of discretionary presumption, the presumption drawn may be rebutted by the expression, might reasonably be true and which is consistent with the innocence of the accused . In case of statutory presumption, the burden on the accused is heavy and it cannot be held to be discharged merely by reason that explanation offered by the accused is reasonable and probable. It shall be shown that the explanation has its true and probably foundation. The words unless the contrary is proved which occur in this provision, make it clear that the presumption is required to be rebutted by proof not by mere explanation. So probably that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as the established line of precedence of the Apex Court. 56) The explanation appended to Section 138 explains the meaning of the expression debt or other liability . The provision includes not only debt but other liability as well. The word liability denotes the state of being liable. The debt or other liabilities for the purpose of attracting the provision are to be legally enforceable. Section 138 treats dishonored cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. In the trial, the accused had admitted that the signature on the impugned Cheques were indeed his own. Once this fact is acknowledged, Section 139 read with Section 118 of the N.I. Act mandates a presumption that the cheques pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and onus is then on the accused to raise a probable defence. 59) True, it is, that the Apex Court in the long line of decisions has held that unless an order passed by Magistrate is perverse or the view taken by the Court is wholly unreasonable or there is non-consideration of any relevant materials or there is palpable misreading of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the cheques and accordingly Prakash Tripura signed in the blank cheques in my presence and handed over the chequebook to Dulal Baidya after signed the cheques. [19] From the above statement, it appears to this court that the complainant has taken the sign on the cheque book for making his own story. It is further submitted by the counsel for the respondents that the complainant has failed to produce any record during the trial showing that he has given the money in question to the accused persons. [20] It is further stated by the counsel for the accused persons that the court below has rightly dealt stating that once presumption under Section 139 NI Act is rebutted, burden of proof shifts upon the complainant to prove as a matter of fact that cheque was actually issued in discharge of liability. [21] In view of the above observation, this court is of the opinion that the complainant has failed to prove his source of income. It is evident from the record that during the cross-examination in the court below the complainant had stated that he had filed two numbers of NI case against the accused person namely Prakash Tripura for an amount of Rs. 4,60,000 and Rs. 2,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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