Tripura High Court
Sudip Paul vs Smt. Sujata Saha on 11 November, 2022
Page 1 of 9
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl.A. No. 10 of 2021
1. Sudip Paul, son of late Naba Krishna Paul, resident of South
Shibnagar Rad No.3, P.O. College Tilla, P.S.East Agartala, District-
West Tripura.
.....Appellant
-V E R S U S-
1. Smt. Sujata Saha, wife of late Chandan Kumar Saha, C/O. late
Kanailal Saha, resident of Kalibari Lane Road No.3, Town
Bordowali, P.O. Agartala, P.S. West Agartala, District-West
Tripura.
2. The State of Tripura, represented by the Secretary Department of
Home, Govt. of Tripura, Civil Secretariat, New Capital Complex,
P.O. Kunjaban, P.S. N.C.C. Agartala, District- West Tripura.
..... Respondents.
B_E_F_O_R_E HON'BLE THE CHIEF JUSTICE (ACTING) For Appellant(s) : Mr. B. Chowdhury, Advocate.
For Respondent(s) : Mr. Ratan Datta, P.P.
Mr. R. G. Chakraborty, Advocate.
Date of hearing & delivery of
judgment and order : 11.11.2022
Whether fit for reporting : YES/NO
JUDGMENT & ORDER [ORAL]
Heard Mr. Ratan Datta, learned Public Prosecutor and Mr. R. G. Chakraborty, learned counsel appearing for the respondents.
[2] This criminal appeal has been filed under Section- 378(2) of the Code of Criminal Procedure is directed against the judgment and order dated 04.01.2021, passed by the learned Additional Chief Judicial Magistrate, West Tripura, Agartala in connection with Case No. N.I. 309 of 2014, whereby and whereunder, the learned Court below acquitted the respondent No.1 for committing offence punishable under Section-138 of Negotiable Instrument Act, 1881.
Page 2 of 9[3] The prosecution story, in brief, is that the respondent-accused No.1 had issued a cheque bearing No.153014 dated 11.09.2014 drawn on Stae Bank of India, Agartala Bazar Branch amounting to Rs.10,00,000 in favour of the complainant-appellant herein for discharge of her debt from her account No.30283542935 and the complainant had presented the said cheque in U.C.O Bank, Agartala Branch on 12.09.2014 but the said cheque was bounced on 15.09.2014 unpaid due to refer to drawer. Thereafter, the complainant- appellant herein, had informed the respondent-accused person about the returned of her cheque while the respondent-accused then requested the complainant to deposit the same after few days.
[4] The appellant-complainant had deposited the said cheque in pursuance of the request of the respondent-accused on 15.10.2014 for encashment but the said cheque again returned for the reason D.P. Nil on 17.10.2014 by the State Bank, Bazar branch. The complainant-appellant and the respondent-accused are both businessman for which there was cordial relationship and intimacy exists amongst them. The respondent was the owner of Saha Udyog in which she holds the Hotel Business and another grocery business and the relations stated about and the problem with the respondent accused had caused the appellant complainant to give loan to the respondent.
[5] Subsequently, the complainant-appellant cause legal notice to the accused on 22.10.2014 by registered post at residential address and business center of the respondent-accused. Thereafter, the accused did not give any reply and not paid the money cover under the cheque, thereby the respondent has committed the offence punishable under Section-138 of Negotiable Instrument Act. After compliance required mandatory provision filed the present complaint.
[6] After receipt of the complaint, the then Presiding Officer took cognizance of offence recorded the sworn statement. Since made out prima facie case to proceed against the accused for the alleged offence got issued process. In response to the summons, the respondent-accused appeared through Page 3 of 9 his counsel and obtained the bail. Thereafter, accusation was read over and explained to her, she denied the same and claimed to be tried.
[7] The complainant in order to prove its case examined himself as PW-1 and produced another witness who is examined as PW-2 namely, Sri Sanjit Banik. The PWs.1&2 were subjected for cross-examination by the counsel for the accused. After closure of the complainant's evidence, statement of accused was recorded under Section-313(1) (b) Cr. P.C. but, the accused denied straightway the evidence led by the complainant and chosen to lead evidence and examined herself as DW-1.
[8] After hearing the parties and perusal of the evidence on record, the learned Court below has observed as under:
"In the result, thereof, the accused person namely Sujata Saha is acquitted of the offence under U/S138 of the Negotiable Instruments Act, 1881 and set at liberty fortwith."
[9] Being aggrieved by and dissatisfied with the impugned judgment and order of acquittal, the appellant herein, has preferred this appeal before this Court for ends of justice.
[10] The core issue in this case is left out "whether the cheque in question can be said to have been issued in discharge of enforceable debt or liability. On recapitulation, the facts and evidence, the accused admitted having drawn the cheque on an account maintained. Now the foundational facts are admitted and it is established by virtue of Section-118 (a) and Sec. 139 of the Act a presumption of the cheque have been issued in discharge of an enforceable debt or liability.
[11] In the instant case the accused has not at all denied the Exbt. 1 and the signature on the cheque. It is contended by the accused that her husband Chandan Kr. Saha is running a business under the name and style M/S, Saha Udyog. Accused-husband died on 23¬01¬2010 and a person name Sankar Lal Saha being the Manager of M/S, Saha Udyog was in possession of the firms blank cheque maintained by the accused for account No. Page 4 of 9 30283542935. The Complainant Sudip Paul managed to obtain the cheque from the manager Sankar Lal Saha conspiring against the accused and misused the same. The same fact is denied by in the evidence of complainant (PW-1).
[12] It is pertinent to cite the law laid down in the case of Bharat Barel & Drum Manufacturing Company V. Amin Chand Pyaralal (1999) 3 SCC 35 which is as follows:
"Upon considerations of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under section 118 ( a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non¬existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal the onus should shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of Negotiable Instrument. The burden upon the defendant of proving the non-existence of the consideration can either direct or by bring on record preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under section 118 (a) in his favour. The court may not insist upon the defendant to disprove the existence of considerations by leading evidence as the existence of negative evidence is neither possible not completed even if led, it is to be seen with a doubt ...."
[13] Further a reliance is placed on the judgment of the Hon'ble Supreme Court in a case in Rangappa Vs. Srimohan (2010) 11 SC 441 it was held as under:
"Section 139 of the Act is an example of a reverse onus clauses that has been included in further of the legislative objective of improving the credibility of negotiable instruments While section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption u/s 139 of the Act is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by sec 138 of the Act can be better described as a regulatory offence since the honouring of a cheque is legally in the nature of a civil wrong whose impact is Page 5 of 9 usually confirmed to the parties involved in commercial transactions. In such a scenario, the test of proportionately should guide the construction and interpretation of reveres onus clauses and the accused/ defendant cannot be expected to discharge an unduly high standard or proof. In absence of any compelling justifications reverse onus clauses usually impose an evidentiary burden and not a persuasive burden."
[14] On careful reading of the judgment of the Hon'ble Supreme Court as laid down, the complainant has to prove his case beyond reasonable doubt and the accused has to prove his defence on the balance of probabilities. Whereas the complainant do get the benefit U/S 118(a) & Sec. 139 of NI Act but does not mean that the complainant will get undue benefit when onus shift upon the accused, standard of proof remains the same but the accused can dislodge the evidence, of the case of complainant.
[15] The complainant has stated in his petition that he advanced a loan of Rs.17,00,000/- in presence of Sankar Lal Saha, Uttam Debnath and her son Debraj Saha. When question were put to the income of the complainant and suggestions were given. Complainant stated that he has not submitted any income tax return before the Court. During the course of arguments Ld. Counsel stressed that producing income tax return is mandatory to prove in a case of cheque bounce. Allowing the case of the complainant which was paid in cash as alleged would support the illegal act and illegal transaction and has violated the provisions of Income Tax Act. However in the case of Sri Rangappa V. Sri Mohan (2010) 11 SC 441 the three judges bench of the Hon'ble Supreme Court upheld the conviction when an amount of Rs.45,000/- was paid in cash.
[16] The Supreme Court in the case of Assistant Director of Inspection vs. A.B. Shanthi, (2002) 6 SCC 259 has held as follows:
""The object of introducing S. 269 is to ensure that a tax payer is not allowed to give false explanation for his unaccounted money, or if he has given some false entries in his accounts, he shall not escape by giving false explanation for the same. During search and seizure unaccounted money is unearthed and the tax payer would usually give the explanation that he had borrowed or received deposits from his relatives or friends sand it is easy for the so called lender also to Page 6 of 9 manipulate his records later to suit the plea of the tax payer. The main object of S. 269-SS was to curb this menace."
[17] In the light of the observations of the Apex Court, it cannot but be said that Sec.269-SS only provided for the mode of acceptance payment or repayment in certain cases so as to counteract evasion of tax. Sec. 269-SS does not declare all transactions of loan, by cash in excess of Rs. 20,000/- as invalid, illegal or null and void, while as observed by the Apex Court, the main object of introducing the provision was to curb and unearth black money. To construe Sec. 269¬SS as a competent enactment declaring as illegal and unenforceable all transactions of loan, by cash, beyond Rs.20,000/-, in my opinion, cannot be countenanced.
[18] The contravention of Section-269 SS though visited with a stiff penalty on the person taking the loan or deposit, nevertheless, the rigor of Section-271D is whittled down by Section-273B, on proof of bona fides. It cannot therefore be said that the transaction of the nature brought before this court could be declared illegal, void, and unenforceable". In view of the said observation as enunciated by Hon'ble Supreme Court & High Court of Delhi, the non production of income tax return would not be prove fatal to the case of the complainant.
[19] In Crl. APP No. 2402 of 2014 K. Subramani Vrs. K. Damodana Naidu the Hon'ble Supreme Court held that "non substantiating source of fund proves fatal to the case of the complainant." [20] In the present case the complainant is a businessman
by profession and the alleged loan of Rs 17,00,000/-lakhs is paid in cash. The Complainant did not clarify the facts to substantiate about his earning capacity. A loan amount of Rs.17,00,000/- is not a petty amount. A businessman in the ordinary course of business should have maintained some proof of transactions relating to the advancement of loan of Rs. 17,00,000/- in cash. The Complainant did not produce any cash receipt and any bank statement to substantiate his claim. Though Complainant did not have Page 7 of 9 the opportunity to examine the witness Sankar Lal Saha being deceased as mentioned in his examination in chief on affidavit. The Complainant still had the opportunity to examine the vital witness namely Uttam Debnath who was a witness to the transaction between the Complainant and the accused. The Complainant on failure to examine the independent witness namely Uttam Debnath weakens the case of the Complainant.
[21] This definitely hampers the case of the complainant so far as especially in the light of the fact that no other evidence has been forthcoming in support of outstanding due of Rs.17,00,000/- from the accused as an advancement of loan.
[22] I am of the view that in regard to the case at hand the complainant is a businessman. The accused has challenged the ability of his financial capacity. The facts and circumstances of the case in Basalingappa versus Mudibasappa arising out of criminal appeal No. 636 of 2019 is squarely applicable to the present case. In regard to the loan of Rs.17,00,000/- advanced to the accused, complainant did not prove the relevancy by producing the bank statement on record showing his ability & capacity to extend loan of Rs.17,00,000/-The capacity of payment is a different issue and the loan amount of Rs.17,00,000/- is actually advanced in a matter of evidence to be brought on record.
[23] I would like to rely on a judgment of the Hon'ble Supreme Court reported in AIR 2006 SC 3366 while the complainant is required to establish the case beyond reasonable doubt the accused can discharge the burden on preponderance of probabilities. This can be done on the basis of cross- examination of the witness of the complainant on any other material available on record and it is not necessary that for this purpose the accused should enter into the witness box.
[24] Moreover in the light of evidence of the complainant and it emerges out in the cross-examination, the complainant failed to prove regarding grant of loan and no receipt was produced regarding such payment of loan. The complainant being a businessman by profession, obviously Page 8 of 9 maintained records and transactions. He did not lead any documentary evidence or oral evidence. Thus the evidence of the complainant is not trustworthy & reliable. He did not mention even the date when such a huge loan amount of Rs.17,00,000/¬ was extended to accused. From his averments, as stated the accused has a outstanding due of Rs.17,00,000. It is not believable that the complainant would incur the risk in absence of any written agreement or any receipt there of advancing the loan. It is to be reiterated the said averments do not aid the complainant and removes the suspicion as advancing of loan remains a bare averment as not been proved of any details have been furnished. Thus said averment does not aid the complainant as a proof of loan extended by the complainant and the presumption is rebutted by the accused.
[25] In the context of the case of the facts the accused has been able to raise a suspicion as to the existence of the loan by bringing to light the financial capacity of the complainant. Moreover, the complainant has not been able to remove the said suspicion. Advancement of loan remains a bare averment as no independent witness have been examined nor records been furnished.
[26] Despite the evidence of the accused is weak in nature on comparison with the evidence of the complainant appears to more reliable. The complainant utterly failed to give any plausible explanation that there were monetary transaction with the accused. No independent witness is examined on behalf of the complainant who has acknowledged the transaction. It is a settled principle of law that the prosecution has to stand on its own leg and prove its case beyond reasonable doubt. It is also a settled principle of law when two views are possible benefit of doubt accrues in favour of the accused. Moreover, the presumption of law which is to be drawn in favour of the drawee of the cheque, namely, the complainant, cheque has been issued for the valid discharge of his debt, gets dislodged by a reasonable explanation furnished by the accused.
Page 9 of 9[27] After taking into consideration the facts and circumstances of the case, I am of the considered view that in the present case the complainant failed to prove its case beyond reasonable doubt. For the reasons stated above I have no hesitation to hold that the accused Sujata Saha is acquitted of the offence u/s 138 NI Act.
[28] It is pertinent to mention herein that the learned Public Prosecutor has contended that the order passed by the Court below do not suffers from any infirmities and the order passed dismissing the complaint needs to be confirmed as the same is passed on the strength of the decisions of the Hon'ble Apex Court reported in AIR2006 SC 3366 and AIR 2008 1 SCC 258 wherein, it has been held that the person who has advanced huge amount of money as loan then the person who has purportedly advanced the loan must also show the solvency to the extent of the loan either through the bank account or through other means. In the present case the amount of Rs.17,00,000/- is said to have been advanced and accordingly, the cheque issued for making of payment got dishonored and hence, the complaint in the list of the above judgment of the Court below has dismissed the complaint and acquitted the accused-person.
[29] For the reasons stated above, we do not find any infirmities in the findings arrived at by the learned Court below while acquitting the accused-person. Accordingly, the judgment and order of acquittal as declared by learned Court below stands affirmed and upheld and thus, the present appeal preferred by the present appellant shall stand dismissed. As a sequel, miscellaneous applications pending, if any, shall stand closed. Send down the LCRs forthwith.
JUDGE A.Ghosh