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TMI Blog2024 (6) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Additional Chief Judicial Magistrate, Cachar, Silchar had convicted the petitioner under Section 138 of the Negotiable Instruments Act, 1881, and sentenced him to suffer simple imprisonment for one year and also to pay the Cheque amount i.e. Rs. 5,00,000/- (Rupees Five Lakhs) along with an amount of Rs. 2,00,000/- (Rupees Two Lakhs) as compensation, total Rs. 7,00,000/- (Rupees Seven Lakhs) only to the complainant/respondent No. 1, in default to undergo further simple imprisonment for four months. 3. The background facts, leading to filing of the present petition are briefly stated as under:- "The petitioner was a contractor and known to the respondent No. 1/complainant. The petitioner took loans from the respondent No. 1/complainant from time to time, for the purpose of execution of his contract work, with a promise to pay the same on demand. Thereafter, the petitioner in discharge of his liability, had issued a Cheque, bearing No. 254228, dated 12.09.2009, on 12.09.2009, drawn on his savings Bank Account No. 9008918, maintained with UCO Bank, Silchar Branch for Rs. 5,00,000/- (Rupees Five Lakhs) only in favour of the respondent No. 1/complainant on the demand of the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cachar had dismissed the said criminal appeal, vide its impugned Judgment and Order dated 27.04.2018, and upheld the judgment and order dated 11.08.2017, passed by the learned Trial Court in connection with N.I. Case No. 31/2010." 4. Being highly aggrieved and dissatisfied, the petitioner has approached this Court for setting aside the impugned judgments and orders on the following grounds:- (i) That, the impugned Judgment and Order dated 27.04.2018, so passed by the court of the Learned Additional Sessions Judge, Silchar, Cachar in Criminal Appeal No. 45/2017, is not sustainable on facts and in law; (ii) That, the impugned judgment and order was passed in a most perfunctory and mechanical manner and without judicious application of mind; (iii) That, both the learned courts below have failed to consider that the respondent No. 1 had absolutely failed to establish his case beyond all reasonable doubt; (iv) That, the learned courts below had not scrutinized the evidence so adduced by the witnesses in proper perspective and the impugned judgments and orders are based on inferences and presumption; (v) That, the evidence relied upon by the complainant/ respondent No. 1 had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the bank authority in this regard had adduced evidence before the learned courts below but, the learned courts below had failed to appreciate the evidence of the Bank Manager in its proper perspective; (xv) That, there is no iota of evidence to justify the commission of the alleged offence by the petitioner and there are no independent witnesses; (xvi) That, both the learned courts below had failed to appreciate that the books of account or statement of account of the respondent No. 1 in respect of the aforesaid alleged transaction, has not been filed or exhibited by the complainant/respondent No. 1; and (xvii) That, the learned courts below had also failed to invoke its jurisdiction under Section 311 of the Cr.P.C. to summon material witnesses. 5. Mr. A. Das, the learned counsel for the petitioner, during hearing, has contended to allow the petition, canvassing the following points for consideration of this court:- (i) The respondent/complainant No. 1 had failed to establish by adducing evidence that the loan amount was Rs. 9,00,000/-. There is no whisper either in the complaint or in the affidavit and the income tax return, submitted by the respondent speaks otherwise; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Cr.P.C. about receipt of notice. Moreover, Mr. Chakraborty submits that the petitioner had adduced no evidence in defence to support his contention that Smt. Supriti Debnath, who received the notice, is not related to him. The notice was sent in the same address as mentioned in the complaint and there is no cross-examination on that point. Mr. Chakraborty further submits that the factum of taking a loan by the petitioner from the respondent No. 1 remains un-rebutted in his cross-examination and the same has been shown in the return of income tax and there is no cross-examination on that point. Mr. Chakraborty further submits that since the petitioner has admitted his signature in the cheque in question, the learned court below, had rightly drawn presumption under Sections 118 and 138 of the N.I. Act and the finding so recorded by the learned courts below are also supported by numbers of decision of Hon'ble Apex Court and as such, no interference of this Court is warranted in the same and therefore, it is contended to dismiss the petition. Mr. Chakraborty has also referred to a decision of the Hon'ble Supreme Court in the case of Rajesh Jain vs. Ajay Singh, reported in (2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr., reported in 1999 SCC (Cri) 1284 and in Rangappa vs. Sri Mohan, reported in (2010) 11 SCC 441. Besides, the learned trial court had also relied upon two decisions of Gauhati High Court in Ambika Prasad Baishya vs. State of Assam & Anr., reported in 2009 (6) GLR 726 and in Indrani Talukdar vs. State of Assam & Anr., reported in 2013 (3) GLR 115. 13. It is to be noted here that Section 118 of the N.I. Act lays down that until the contrary is proved, it shall be presumed that every Negotiable Instrument was made or drawn for consideration. Section 139 of the N.I. Act contemplated that unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 of the N.I. Act for the discharge, in whole or part of any debt or liability. In catena of decisions, it has been repeatedly observed by Hon'ble Supreme Court that in the proceeding under Section 138 of N.I. Act, the complainant is not required to establish either the legality or the enforceability of the debt or liability, since he can avail the benefit of presumption under Sections 118 and 139 of the N.I. Act in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act." 17. In the case of M.S. Narayan Menon vs. State of Kerala, (2006 SAR Crl. 616), Hon'ble Supreme Court has held that the presumption available under Sections 118 and 139 of N.I. Act can be rebutted by raising a probable defence and the onus cast upon the accused is not as heavy as that of the prosecution. Further, in the case of Krishna Janarshana Bhat vs. Dattatreya G. Hegde, reported in (2008 Vol. II SCC Crl. 166), Hon'ble Supreme Court has held that the existence of legally recoverable debt was not a presumption under Section 138 of the N.I. Act an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct." 19. It also appears from the record of the learned trial court and also from the submission of Mr. Das, the learned counsel for the petitioner that the petitioner had taken a plea that he had lost the cheque and thereafter, he had asked his banker to stop payment and to that effect he had examined the Senior Manager of UCO Bank, Cachar, Silchar, who had confirmed receiving instruction from the petitioner on 24.02.2010 for stop payment of cheque No. 254228 on account of the fact that he had lost the same. Thereafter, the bank received the cheque No. 254228, for a sum of Rs. 5,00,000/- from Assam Gramin Bikash Bank for clearance on 24.03.2010. According to D.W. 1 when the cheque amount is Rs. 5,00,000/- or more and then the reason would have been stop payment but when the amount is less than Rs. 5,00,000/- the system shows the reason as insufficiency of fund. But, D.W. 1 had failed to produce the stop payment instruction letter in the court being the same old one and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the High Court. It is not now open to the accused to contend differently on that aspect." 21. Thus, I find that the findings, so recorded by the learned courts below, in respect of the statutory presumption, sufferers from no illegality or infirmity requiring any interference of this Court. Though Mr. Das, the learned counsel for the petitioner, referring to a decision of Hon'ble Supreme Court in ANSS Rajsekhar (supra) and submits that the respondent had failed to establish the source of income, yet, having gone through the record of the learned court below I find that respondent had duly reflected the amount of Rs. 5,00,000/- in his income tax return. However, he had not made any whisper either in the complaint or in his evidence regarding the source of his income. But, the income tax return and the contents thereof were not disputed by the petitioner. Even he did not put a single question to the respondent regarding his source of fund. For the first time he raised the issue before this court. As all the materials necessary to decide the issue, was not already before this court, and as the issue, so raised requires the trial court to find out facts in coming to the conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption. That being so, no fault can be found with the finding of the learned trial court as well in the finding of the learned first appellate court in this regard. Thus, it appears that the learned trial court as well as the first appellate court both had rightly drawn such presumption in favour of the holder of the cheque i.e. the respondent No. 1. 25. That, as regard the contention of Mr. Das that service of legal notice upon the petitioner has not been proved; it appears from the A/D Card that the same was received by one Supriti Debnath and the relation between the petitioner and said Supriti Debnath is not clear from the same. It also appears that the said issue was raised before the learned trial court also and the learned trial court, having relied upon a decision of Hon'ble Supreme Court in the case of C.C. Alavi Haji vs. Palapetty Muhammed & Anr., reported in (2007) 3 SCC(Cri) 236, had presumed that Supriti Debnath is the family member of the petitioner. The learned trial court also found that the petitioner had not even suggested during cross-examination of the respondent that Supriti Debnath was not related to him or that she was not his immediate family member. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends." 27. In the case of K. Bhaskaran (supra) Hon'ble Supreme Court has held as under:- "24. No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice." 28. Mr. Das, learned counsel for the petitioner, however, referring to a decision of Hon'ble Supreme Court in M.D. Thomas (supra), submits that as the respondent has failed to establish the relation between Supriti Debnath and of the petitioner, and as such it cannot be said that the respondent had complied with the requirement of giving notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law." 32. It is to be noted here that the aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice. 33. In the case in hand, no such valid and strong reason is shown by the learned counsel for the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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