Tripura High Court
Sri Sankar Das vs Sri Alak Dey on 30 June, 2021
Author: S.G.Chattopadhyay
Bench: S.G.Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
Crl.Rev.P.No.46 of 2018
Sri Sankar Das, S/O Late Nani Gopal Das, R/O Matabari, Udaipur, P.S-
R.K.Pur, District-Gomati Tripura
-----Petitioner(s)
Versus
1. Sri Alak Dey, S/O Late Nani Gopal Dey, R/O Matabari, Udaipur, P.S-
R.K.Pur, District-Gomati Tripura
2. The State of Tripura represented by PP, High Court of Tripura, Agartala
--Respondent(s)
For the Petitioner(s) : Mr. H.K.Bhowmik, Adv.
For the Respondent(s) : Mr.S.Sarkar, Sr. Adv.
Mr.S.B.Deb, Adv.
Mr.A.Basak, Adv.
Mr. Ratan Datta, PP.
Date of hearing : 03.02.2021
Date of pronouncement : 30th June,2021
Whether fit for reporting : No.
BEFORE
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
JUDGMENT
[1] By means of filing this criminal revision petition, petitioner Sri Sankar Das has challenged the judgment dated 04.07.2018 passed by the Addl. Sessions Judge, Gomati Judicial District, Udaipur in Criminal Appeal No 15(1) of 2017 setting aside the judgment and order of conviction and sentence dated 03.02.2017 passed by the Chief Judicial Magistrate, Gomati Judicial District, Udaipur in case No. CR(NI) 49 of Page 2 of 28 2016 convicting respondent No.1 namely Alak Dey for having committed offence punishable under Section 138 of the Negotiable Instruments Act, 1981 and sentencing him to RI for 1 year and a fine of Rs.4 lakhs with default stipulation.
[2] The brief facts necessary for disposal of the petition are that present petitioner being complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1981(NI Act, for short) in the court of the CJM, Gomati Judicial District, Udaipur on 23.06.2016 alleging, inter alia, that accused Alak Dey [Respondent No.1 herein] borrowed a sum of Rs.2 Lakhs from the petitioner in cash on 10.03.2016 to discharge his personal obligations. While borrowing the said amount of money, the respondent had undertaken that he would return the loan within a period of 01 month by 10.04.2016. The accused respondent also issued a cheque bearing No.157066 dated 10.03.2016 of a sum of Rs.2 lakhs drawn on Tripura Gramin Bank branch at Udaipur against his account No.8070012405601 in favour of the petitioner to secure the said debt. The petitioner deposited the said cheque with his bank for crediting the said amount to his account No.31328439774 in the SBI Garji branch. But on 24.05.2016 it was intimated to him by his bank that the cheque Crl.Rev.P No.46 of 2018 Page 3 of 28 was dishonoured by the bank due to insufficient fund in the account of the accused respondent No.1.
[3] A demand notice was then issued by the petitioner to respondent No.1 through his lawyer demanding payment of Rs.2 lakhs within 15 days and such notice was sent to his known residential address through post registered with AD. Despite receiving the notice, accused respondent Alak Dey did not refund the money to the petitioner. [4] A complaint was then filed by the petitioner in the court of the CJM in Gomati Judicial District at Udaipur alleging commission of offence punishable under Section 138 NI Act and Section 420 IPC. The learned trial court took cognizance of offence punishable under Section 138 NI Act and summoned the accused.
[5] After the accused appeared, trial commenced with the framing of the following charge against him:
"Accusation levelled against you Sri Alok Dey is that on 10.03.2016 for the purpose of your personal need borrowed an amount of Rs.2,00,000/- from the complainant Sri Sankar Das with a condition to return the same within 10.04.2016 you issued a cheque vide no.15706 dated 10.03.2016 for discharge of your debt and liability of Tripura Gramin Bank, Udaipur Branch vide A/C no. 8070012405601 and accordingly the complainant deposited the said cheque in his A/C no.31328439774 with the State Bank of India, Garjee Branch for encashing the same but on 24.05.2016 the State Bank of India, Garjee Branch, informed Crl.Rev.P No.46 of 2018 Page 4 of 28 the complainant that the said cheque was dishonoured due to insufficient of balance in your account and on 30.05.2016 the complainant issued demand notice to him and you received the said demand notice but failed to pay the money and but failed to pay the amount and thus you have committed an offence of dishonour of cheque punishable under Section 138 of Negotiable Instrument Act and within my cognizance.
And I do hereby direct that you be tried under the said charge."
[6] In the course of trial, the following issues were formulated by learned trial court:
(i)Whether cheque bearing No.157066 for Rs.2 Lakhs was issued by the accused on 10.03.2016 in favour of the petitioner in the discharge of his existing debt and liability.
(ii)Whether the said cheque was dishonoured by the bank due to insufficient fund in the account of the accused respondent.
(iii)Whether accused failed to repay the money despite receiving demand notice.
[7] During trial complainant petitioner Sankar Das examined himself as PW-1. He also examined Sri Subodh Kumar Singh, Postal Inspector of Udaipur Head Post Office as PW-2, Sri Soumik Bhaduri, Branch Manager, Garji branch of SBI as PW-3 and Sri Pranab Bhowmik, Branch Manager, Tripura Gramin Bank in the Udaipur Crl.Rev.P No.46 of 2018 Page 5 of 28 branch as PW-4. Apart from examining the said witnesses the complainant petitioner relied on as many as 9 exhibits. [8] After the recording of prosecution evidence was over, statement of the accused respondent was recorded under Section 313 Cr.P.C. In reply, accused respondent claimed that the entire prosecution evidence appearing against him was false. In reply to question No.7 accused respondent stated that when the complainant petitioner promised to pay money to him, he issued a blank cheque in favour of the complainant petitioner. Accused respondent admitted that he received demand notice from the petitioner and despite receiving such notice he did not pay any money to the complainant petitioner. He also admitted that the cheque book from which the cheque leaf was issued by him to the complainant petitioner belonged to him. Accused respondent, however, declined to adduce any evidence on his defence. [9] Having appreciated the entire evidence, both oral and documentary, adduced by the parties and after hearing the counsel of the parties at length the learned trial court delivered the judgment observing as under:
"11. Once it isproved that the cheque in question was issued by the accused or once signature in the cheque is admitted, as per Section-138 and 139 of the NI Act it also can be presumed that the said cheque was issued for Crl.Rev.P No.46 of 2018 Page 6 of 28 discharging of debt or liability and burden to rebut the said presumption lies upon the accused. In this respect, the Hon'ble Supreme Court in Rangappa -vs Mohan, reported in 2010 AIR SCW 2946 where considering the earlier decision in Krishna Janardhan Bhat (supra), in para 14, it is held, "14. 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 (supra) may not be correct." In this respect Hon'ble Supreme Court in K. Bhaskaran - vsSankaran Vaidhyan Balan & Anr., reported in AIR 1999 SC 3762 held, "9. As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption." In this case, the accused has taken defence while his examination under Section 313 of Cr.P.C. that he has issued blank cheque on the promise of complainant to pay money but complainant failed to pay any money to him but no such fact is suggested during cross examination of the witnesses of complainant. No evidence is adduced by accused to prove such fact as pleaded while examination under Section 313 of Cr.P.C. by accused. No material is brought before the court by accused where-from it can be said that accused issued blank cheque on the promise of complainant to pay money but complainant failed to pay any money to accused. Hence, it can be said that the accused failed to discharge his burden of proof. Thus, therefore, considering all this aspect, I find, it can be said that on 10.03.2016 accused Sri Alok Dey issued the cheque vide No.157006 for Rs.2,00,000/- in discharge of his debt and liability and the said cheque was dishonoured by the bank due to insufficient fund in the account of the accused. Accordingly, Point No.(i)&(ii) are decided in affirmative and in favour of the complainant but against the accused.
12. Point No.(iii):- In this point, I have to decide whether the accused failed to pay the money on receipt of demand notice. In this respect, I find, P.W.1, the complainant deposed that on 30.05.2016 through his lawyer Mr. Kuntal Crl.Rev.P No.46 of 2018 Page 7 of 28 Das he gave demand notice to accused by registered post demanding payment of the cheque amount Rs.2,00,000/- only from accused and accused received the registered notice but did not pay any amount to him. P.W.2, Sri Subodh Kr. Singh, the Postal Inspector deposed before this Court that he appeared before this Court on receipt of summons and he has produced documents relating to delivery of registered article No.RE 434887872IN, dated 31.05.2016 addressed to accused Alok Dey and the notice was delivered on 04.06.2016 and identified the letter and delivery slip which is marked as Ext.4 in two sheets. From Ext.2, the demand notice dated 30.05.2016, I find, complainant issued demand notice to accused. From Ext.3, the postal receipt dated 31.05.2016, I find, demand notice was issued to accused by complainant. From Ext.4, the delivery slip register, I find, accused received the demand notice issued by complainant. That apart, while examination under Section 313 of Cr.P.C., the accused admitted that he has received demand notice from the complainant and he has not paid any money to complainant after receipt of demand notice. Thus, considering all this aspect, I find, it can be said that the accused failed to pay the money on receipt of demand notice. Accordingly, Point No.(iii) is decided in affirmative and in favour of the complainant but against the accused.
ORDER In the result, I hold, complainant has been able to prove the charge leveled against the accused Sri Alok Dey under Section 138 of NI Act. As such, I do hereby convict the accused under the aforesaid provisions of law.
Consideration Under Probation of Offender Act, 1958 :-
I have also heard Learned Counsel of both the sides in the matter of granting Probation and considering the nature and gravity of the offence, I am not inclined to extend any benefit to the convict of the Probation of Offenders Act as such type of incident of Cheque bounce are increasing day by day causing loss of faith of public on the cheque transaction and also causing disturbances in the smooth functioning of commercial and business transactions. So, considering all, I find no scope to release the convict on Probation.
Hearing on sentence.Crl.Rev.P No.46 of 2018 Page 8 of 28
Therefore, I have heard the convict on the matter of sentence when he submits that he is a poor person and prayed for mercy before the Court.
Considering all, I sentenced the convict Sri Alok Dey to suffer RI for 01(One) year and to pay a fine of Rs.4,00,000/- (Rupees four lakh) only, in default of payment of fine he is to suffer RI for further 1(one) month under Section 138 of NI Act.
Fine money, if realized, be given to the complainant as compensation.
The convict is advised to prefer appeal.
A copy of this Judgment be given to the convict at free of cost .
Thus; the case is disposed of on contest.
Make necessary entry in the relevant trial registrar.
Consigned the record to the record room after appeal period in due compliance as per law."
[10] As noted, the learned Addl. Sessions Judge, in appeal, set aside the judgment and order of conviction and sentence of the accused respondent observing as under:
11. In a case U/S-138 of the N.I.Act, mere proving that the cheque in dispute got bounced is not sufficient but it must be proved that bounced cheque was returned unpaid but in this case though P.W.4 stated that cheque got bounced because of insufficiency of fund in account of the accused and was returned unpaid but the returning of cheque was not proved.
12. In a case under Section-138 of N.I. Act the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the case of prosecution cannot stand or the accused can give his version of the story and say that on the basis of his version the story of the complainant Crl.Rev.P No.46 of 2018 Page 9 of 28 cannot be believed. In the first situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant.
13. It is settled position of law that the standard/degree of proof in a criminal case stands on a much higher footing than a Civil case, which means that the prosecution must prove its case beyond all reasonable doubt.
Though there is presumption U/S-139 of the N.I. Act in favour of the complainant that he received the cheque for the discharge of debt or liability but before that presumption gets attracted it must must be shown that there is a cheque which gets dishonored for want of sufficient fund and thereafter returned by the banker. But Complainant failed to prove that bounced cheque was returned by the banker to him and thus I am of the opinion that complainant failed to prove that the cheque was returned unpaid by Banker.
14. Thus in view of the aforesaid discussion I came to the conclusion that the Lerned Trial Court failed to consider the point "if the cheque in question was returned unpaid by the Banker" ad without any finding on this point, the impugned Judgment cannot be allowed to be sustained. The Learned Trial Court also unduly drew the presumption under Section-139 of the N.I. Act in Para-11 of the Judgment because before drawing such presumption there must be some material that signed cheque got dishonoured and returned by the Banker.
15. Resultantly the AppeAl is allowed and the Judgment dated 03.02.2017 passed by the Learned Chief JudiciAl Magistrate, Gomati JudiciAl District, Udaipur in Case No. CR(NI) 49 of 2016 convicting the appellant to suffer RI of one year and to pay a fine of Rs.4,00,000.00 only and in default of payment of fine further RI for one month, for commission of offence punishAble u/s 138 of NI Act. is set aside.
16. Accused be set At liberty forthwith. The bail bond is canceled and the surety be dischArged."
[11] I have heard Mr.H.K.Bhowmik, learned counsel appearing for the petitioner as well as Mr. S.Sarkar, learned Sr. Advocate assisted Crl.Rev.P No.46 of 2018 Page 10 of 28 by Mr. S.B.Deb, Adv. for the respondent No.1 and Mr.Ratan Datta, learned PP appearing for the state respondent.
[12] It has been mainly canvassed on behalf of the petitioner that the learned appellate court failed to appreciate the evidence as well as the law and erroneously set aside the conviction and sentence of the accused respondent. It is further submitted by Mr. H.K.Bhowmik, learned counsel representing the complainant petitioner that presumption under Section 139 NI Act read with Section 118 of the said Act with regard to the existence of debt or liability is not a discretionary presumption, it is a statutory presumption and a heavy burden is cast on the accused to rebut such presumption by adducing convincing evidence. It is contended by Mr.Bhowmik, learned counsel that such presumption cannot be rebutted by merely offering an explanation. It can be rebutted only by adducing evidence to the fact that he had no debt or legal liability to be discharged towards the complainant. In support of his contention Mr. Bhowmik, learned counsel has referred to the judgment dated 10.02.2020 of the Apex Court in Rajeshbhai Muljibhai Patel and Ors.etc. vs. State of Gujarat and Anr.etc.[Crl.Appeal No.251-252 of 2020] wherein the Apex Court has held that once the issuance of the cheque is admitted/ established presumption under Section 139 NI Act Crl.Rev.P No.46 of 2018 Page 11 of 28 would arise in favour of the holder of the cheque that it was issued in the discharge of an existing debt or liability. The burden lies upon the accused to rebut such presumption by adducing evidence. The observation of the Apex Court in paragraph 20 of the said judgment is as under:
"20. The High Court, in our view, erred in quashing the criminal case in C.C.No.367/2016 filed by appellant No.3- Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No.3 and respondent No.2. Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in C.C.No.367/2016 filed under Section 138 of N.I. Act"Crl.Rev.P No.46 of 2018 Page 12 of 28
[13] Mr.Bhowmik, learned counsel further argued that handing over of a cheque by way of security per se would not absolve the accused from the discharge of liability arising from such cheque. In support of his contention Mr.Bhowmik, learned counsel has relied on the decision dated 11.09.2019 of the Supreme Court in M/S Womb Laboratories Pvt Ltd vs. Vijay Ahuja and Anr. [Criminal Appeal No1382-1383 of 2019] wherein the Apex Court held as under:
"3.The High Court mainly referred to the assertion in the complaint that the security cheques were demanded in response to which the accused had issued three signed blank cheques and stated if the amount is not returned within two years then by presenting the cheques the same may be encashed. This assertion was assumed by the High Court to mean that the cheques were given only by way of security. Having said that, the High Court proceeded to hold that the "security" offered was not for the discharge of any debt or any liability. Resultantly, it came to hold that the action under Section 138 of the Negotiable Instruments Act, 1881 cannot proceed against the accused any further.
4. We have heard counsel for the parties.
5. In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved - that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques.Crl.Rev.P No.46 of 2018 Page 13 of 28
6. Suffice it to observe, the impugned judgment of the High Court cannot stand the test of judicial scrutiny. The same is, therefore, set aside."
[14] Further submission on behalf of the complainant petitioner is that in view of the amended provision of Section 146 of the NI Act, bank's slip is the prima facie evidence of certain facts. According to Mr.Bhowmik, learned counsel of the petitioner, when a bank slip or memo having thereon the official mark denotes that the cheque has been dishonoured, the court shall presume the facts of dishonour of such cheque unless and until such fact is disproved. According to the counsel of the complainant petitioner in the present context, the bank slip denoting the dishonour of the cheque has been produced by the complainant and the respondent could not disprove the fact. Therefore, a presumption has to be drawn against the accused respondent that a cheque was dishonoured for insufficiency of fund in his account. In this regard learned counsel has relied on the decision of this high court in Utpal Majumder Vs. Farid Miah and Anr. reported in (2020) 2 TLR 380 wherein this court in paragraph 16 of the judgment has held as under:
"16. Thus, it is no more res integra that the provisions of Section 146 of the N.I. Act unambiguously and expressly override the principles of the Indian Evidence Act and making such a major departure from the application of the Evidence Act provides that the bank slip or memo with the Crl.Rev.P No.46 of 2018 Page 14 of 28 official mark showing that the cheque was dishonoured would by itself give rise to the presumption of the dishonour of the cheque, unless and until the contrary to the said fact was disproved. In view of insertion of Section 146 in the N.I. Act, Section 67 of the Evidence Act as relied upon by the learned Trial Judge has no manner of application to prove or disprove the document relating to bank note/slip/return memo. Furthermore, Section 143 of the N.I. Act fortifies the complaint under Section 138 of the N.I. Act to be tried in summary manner. Having held so, the findings that the contents of the bank notes were not proved in accordance with Section 67 of the Evidence Act and thus bad in law, has no force in the eye of law and contrary to Section 146 of the N.I. Act. As such, unhesitently, I set aside the said findings of the learned Chief Judicial Magistrate in his judgment dated 11.09.2018 while dismissing the compliant of the petitioner. [emphasis supplied]"
[15] Mr.S.Sarkar, learned Sr.Advocate appearing fort the accused respondent on the other hand argued that the learned appellate court after complete re-appreciation and reconsideration of the entire evidence viewed that the case was not proved against the accused respondent and by a detailed judgment set aside his conviction and sentence. It was contended by Mr.Sarkar, learned Sr.Advocate that it is a settled proposition of law that where 2 views are possible, the view favourable to the accused has to be taken by the court. In support of his contention, Mr.Sarkar, learned Sr.Advocate has relied on the decision of the Apex Court in Chandrappa and Ors.Vs. State of Karnataka reported in (2007) 4 SCC 415 wherein the Apex Court has held as under:
"44. In our view, if in the light of above circumstances, the trial Court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion Crl.Rev.P No.46 of 2018 Page 15 of 28 that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside."
According to learned senior counsel, there is no illegality in the impugned judgment and as such the said judgment does not call for any interference in this criminal revision petition. [16] As noted, 4 witnesses have been examined on behalf of the prosecution and 9 documents have been introduced and exhibited to establish the charge against the accused petitioner. Counsels, appearing for the parties have placed arguments and counter arguments and in the course of hearing they have taken us to the evidence on record. Among the PWs, PW-1 Sankar Das who lodged the complaint against the accused stated in his examination-in-chief on affidavit that the accused who had a friendly relationship with him used to borrow money from him to meet his personal needs and also used to return such money in usual course. On 10.03.2016 he borrowed a sum of Rs.2,00,000/- from Crl.Rev.P No.46 of 2018 Page 16 of 28 the PW assuring that he would return the money within 10.04.2016. Accused also issued cheque No. 157066 dated 10.03.2016 for the said amount of rupees two lakhs in favour of the complainant drawn on Tripura Gramin Bnak at Udaipur branch as a security to the existing debts. Complainant presented the said cheque in the SBI, Garjee branch for crediting the said amount in his account no.31328439774 after encashment which was dishonoured by bank due to insufficient balance in the account of the accused. The same was informed to the complainant by his bank on 24.05.2016. Complainant then issued statutory demand notice to the accused on 30.05.2016 demanding a sum of rupees two lakhs with interest. Despite receiving the notice accused did not turn up to repay the loan to the complainant. Eventually the complainant lodged the complaint under Section 138 NI Act in the court of the Chief Judicial Magistrate at Udaipur.
[17] He was cross examined by the counsel of the accused at length. He stated in the cross examination that he could not produce the impugned cheque along with his complaint. He also stated that he was unable to produce the cheque. In reply to a suggestion made by the counsel of the accused, complainant stated that it was not a fact that he was unable to produce the cheque because no such cheque was issued at Crl.Rev.P No.46 of 2018 Page 17 of 28 all by the accused. He also denied the suggestion of the accused that due to his enmity with the accused he lodged a false case against him. [18] PW-2 is a Postal Inspector of Udaipur Head Post Office who turned to testify in court on 17.12.2016. The PW stated that the registered article no.RE434887872IN dated 31.05.2016 was delivered to the accused on 04.06.2016. He identified the delivery slips which were exhibited and marked as Exhibit-4. The article contained the statutory demand notice issued by the complainant to the accused.
In his cross-examination he denied the suggestion of the accused that no post man of his post office delivered any demand notice to accused Alak Dey.
[19] PW-3, Soumik Bhadury was the Branch Manager, Garjee branch of SBI on the material date. According to the PW, cheque bearing no.157066 dated 10.03.2016 was deposited at SBI in its Garjee branch on 12.04.2016. Since the cheque was drawn on Tripura Gramin Bank, the same was sent to Tripura Gramin Bank, Garjee branch for collection. But the same was returned without collection. According to the PW, subsequently the cheque along with its return memo was found missing from the bank which was reported to police by some Amul Lakra, the then branch manager of SBI, Garjee branch and on the basis Crl.Rev.P No.46 of 2018 Page 18 of 28 of his information an entry was made in the General Diary (GD) of R.K.Pur police station. The PW identified the GD entry which was marked as Exhibit 6 on his identification. The Branch Manager, SBI, Garjee branch also informed the entire facts to the branch manager, Tripura Gramin Bank by a letter dated 20.05.2016[Exbt.7] wherein he stated as follows:
"State Bank of India State Bank of India
Garjee Branch (CODE NO-9129)
Matabari, Udaipur, Tripura-799013
BM/GB/2016-2017/026 Date:20/05/2016
The Branch Manager,
Tripura Gramin Bank
Udaipur Branch
Central Road, Udaipur
Gomati, Tripura
Dear Sir,
CONFIRMATION REGARDING PAYMENT OF CHEQUE
CUSTOMER NAME: ALOK DAY(M:8014898147)
ACCOUNT NO. 8070012405601
CHEQUE NO.157066 DT.10/03/2016
AMT.Rs.200000/-
With reference to the above we would like a piece of information, the branch has received cheque from one of our valued customer namely Sri Sankar Das(A/c no.31328439774) for collection of in his behalf.
2. The cheque was returned by your bank due to insufficient balance in the account of Sri Alok Dey. During the course of return, the cheque is misplaced from banks custody and yet to be traced.
3. We need your help in this regard kindly confirm that no such cheque is paid by your end and kindly mark stop payment of above mentioned cheque.
This is for your kind information please...."
[20] By a subsequent letter dated 24.05.2016 the branch manager, SBI of its Garjee branch informed the complainant that the impugned cheque received from him was sent to Tripura Gramin Bank for collection. But the said cheque was returned from bank for Crl.Rev.P No.46 of 2018 Page 19 of 28 insufficient balance in the account of accused Alak Dey. It was also informed by the Branch Manager, SBI that during the course of return, the cheque was misplaced from the custody of the bank which was reported to police. The complainant was also asked to collect a fresh cheque from the accused after confirming his balance. The said letter which is marked as Exhibit-1 reads as follows:
"State Bank of India State Bank of India
Garjee Branch (CODE NO-9129)
Matabari, Udaipur, Tripura-799013
BM/GB/2016-2017/030 Date: 24/05/2016
Mr.Sankar Das
Matabari, PO Matabari
Gomati, Tripura
Dear Sir,
CONFIRMATION REGARDING PAYMENT OF CHEQUE
CUSTOMER NAME: ALOK DAY(M:8014898147)
ACCOUNT NO. 8070012405601
CHEQUE NO.157066 DT.10/03/2016
AMT.Rs.200000/-
With reference to the above we would like a piece of information, the branch has received cheque from you bearing A/c No. 31328439774 for collection of on your behalf.
2. The cheque was returned by your bank due to insufficient balance in the account of Sri Alok Dey. During the course of return, the cheque is misplaced from banks custody and yet to be traced.
3.We have lodged a FIR and inform the Tripura Gramin Bank, Udaipur Branch for not paying the cheque in future.
4.So we request you to collect a fresh cheque from the customer after confirming his balance. Sorry for your inconvenience.
This is for your kind information and necessary action please..."
In his cross-examination, the PW denied the suggestion of the accused that the cheque was not received by them and it was not sent to Tripura Gramin Bank for collection.
Crl.Rev.P No.46 of 2018 Page 20 of 28 [21] PW-4, the Branch Manager of Tripura Gramin Bank of Udaipur branch confirmed in his cross-examination that a cheque book containing cheque no.157051 to 157075 was issued from the Tripura Gramin Bank to the accused who had an account in their bank vide account no.8070012405601. On 21.4.2016 Tripura Gramin Bank received a cheque bearing no 157066 from SBI, for clearing. The said cheque was issued by the accused in favour of the complainant drawn on Tripura Gramin Bank where the accused had the aforesaid account. On scrutiny, the PW found that fund in the account of the accused was insufficient for clearing the cheque. They also made an entry in the relevant register in this regard wherein it was recorded that the said cheque was bounced due to insufficient fund in the account of the accused. The PW produced the said register before the court which was marked as Exbt.8 and the relevant entry was marked as Exbt.8(i). After the cheque was dishonoured, the PW returned the said cheque along with the cheque return memo to SBI denoting the fact that cheque was being returned due to insufficient fund in the account of the accused. Subsequently they received the letter from the SBI, Garjee branch whereby it was informed that the cheque was missing and the Branch Manager, Tripura Gramin Bank was requested not to make any payment in case the missing cheque is presented to the bank. Crl.Rev.P No.46 of 2018 Page 21 of 28
In his cross-examination, the PW denied the suggestion of the accused that no cheque book was issued in favour of the accused from Tripura Gramin Bank and the accused did not issue the impugned cheque. The PW also denied the suggestion of the accused that he gave a mechanical statement without verification of documents. [22] From the evidence discussed herein above, it would emerge that the impugned cheque for a sum of Rs.2,00,000/- was issued by the accused in favour of the complainant which was presented by the complainant to his banker i.e. SBI for encashment and crediting the same in his account. The said cheque was sent to Tripura Gramin Bank from SBI for collection. But the cheque was bounced from the Tripura Gramin Bank on which it was drawn for insufficiency of fund in the account of the accused. It also stands proved that the complainant issued statutory demand notice to the accused which was received by him and despite receipt of the notice, the accused did not pay the loan of the said amount of Rs.2,00,000/- to the complainant. Eventually the complainant lodged the complaint in the court of the CJM at Udaipur. [23] It is true that the complainant could not produce the impugned cheque at the trial. But his failure in presenting the cheque before the court does not affect his case because the Branch Manager of SBI at Udaipur branch had categorically stated in his evidence that the Crl.Rev.P No.46 of 2018 Page 22 of 28 said cheque was missing from the custody of the bank which was also reported to the jurisdictional police station and the information was recorded in the General Diary of the police station. The accused could not impeach the evidence of the PW in this regard and there is no reason to doubt the statement of the Branch Manager, SBI [PW-3]. [24] Exhibit-1 as well as Exhibit-7 containing official seal of SBI, Garjee branch clearly denotes that the impugned cheque bearing no.157066 dated 10.03.2016 of an amount of Rs.2,00,000/- issued by the accused against his account No.8070012405601 in Tripura Gramin Bank was dishonoured by Tripura Gramin Bank and the same was returned to SBI for insufficiency of fund in the said account of the accused. The Branch Manager, Tripura Gramin Bank of Udaipur branch[PW-4] also confirmed this fact. The accused could not rebut such evidence.
[25] As stated by this court in the case of Utpal Majumder (supra) relied on by the learned counsel of the complainant, such memo with the official mark showing that the cheque was dishonoured would by itself give rise to the presumption of the dishonour of cheque in terms of Section 146 NI Act unless and until the contrary to the said fact is proved. Thus it stands established that the impugned cheque issued by the accused in favour of the complainant was dishonoured by bank for Crl.Rev.P No.46 of 2018 Page 23 of 28 insufficiency of fund in his account. Accused in the case has taken a very inconsistent defence. In the cross-examination of the witnesses, he tried to project that no cheque was issued by him. But in the course of his examination under Section 313 Cr.P.C., he did not deny the issuance of cheque. According to him, complainant promised to pay money to him for which he issued a blank cheque in his favour. But ultimately no money was paid by the complainant to him.
[26] In view of the facts and circumstances of the case and the materials available on record plea of the accused is not at all probable. The complainant on the other hand has been able to prove the essential facts by adducing consistent evidence. The complainant proved that accused borrowed a sum of Rs.2 lakhs form him and to discharge his debts, he issued the impugned cheque to the complainant which was dishonoured by the bank.
[27] In Hiten P. Dalal vs. Bratindranath Bannerjee reported in (2001) 6 SCC 16, the Apex Court has succinctly held that the presumptions to be drawn by court under Sections 138 and 139 NI Act are presumptions of law which cast evidentiary burden on the accused to disprove the presumptions. Relevant passages of the judgment are as under:
Crl.Rev.P No.46 of 2018 Page 24 of 28
"21. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides that :
"139. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
"The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.
22. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid at p 65, para 14). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, Crl. Rev.P.79 of 2017 "after considering the matters before I the Court either believes it to exist, or considers its existence so Crl.Rev.P No.46 of 2018 Page 25 of 28 probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists".
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'."
[28] Similarly, in the case of Mallavarapu Kasivisweswara Rao vs. Thavikonda Ramulu Firm and Ors. reported in (2008) 7 SCC 655, it has been held by the Apex Court that it is a settled position that the initial burden lies on the accused to prove the non existence of consideration. The relevant passage from the judgment may be gainfully reproduced which is as under:
"17. Under Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal....."
[29] In the instant case, apparently the accused petitioner did not lead any evidence in rebuttal of such statutory presumptions. He has also failed to bring on record such facts and circumstances which would lead Crl.Rev.P No.46 of 2018 Page 26 of 28 the courts below to believe that the liability, attributed to the accused petitioner was improbable or doubtful.
[30] In the case of Kishan Rao vs. Shankargouda reported in (2018) 8 SCC 165, the Apex Court has succinctly held that mere denial of existence of debt shall not serve any purpose in a proceeding under Section 138, NI Act. Something which is provable has to be brought on record for getting the burden of proof shifted to the complainant. Observation of the Apex Court in this regard in paragraph 20 of the said judgment is as under:
"20. This Court held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. The following was held in paragraph 20 [Kumar Exports vs. Sharma Carpets (2009) 2 SCC 513] :
"20....The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that Crl.Rev.P No.46 of 2018 Page 27 of 28 a prudent man would under the circumstances of the case, act upon the plea that they did not exist..."
[31] After scrutinizing the entire transaction, it would surface that there is no reason to disbelieve the case of the complainant. The explanation offered by the accused petitioner on the other hand is not founded on proof and it does not stand to reason.
[32] For the foregoing reasons, this court is of the considered view that the impugned judgment passed by the learned Addl. Sessions Judge, Udaipur, Gomati Judicial District in Crl. Appeal. No.15(1) of 2017 setting aside the judgment of the trial court deserves interference. In consequence, the impugned judgment is set aside and judgment and order of the trial court convicting the accused petitioner for having committed offence punishable under Section 138 NI Act is restored. In so far as his sentence is concerned, sentence awarded by the trial court needs modification. Sentence is reduced to fine of Rs.2,25,000/-(Two lakhs twenty-five thousand) only and in default to SI for 2 months. Accused petitioner is directed to deposit a fine of Rs.2,25,000/- in the court of the CJM at Udaipur within a period of 2 months for disbursement of the said sum to the complainant namely Sankar Das failing which the accused petitioner will suffer the default sentence.
Crl.Rev.P No.46 of 2018 Page 28 of 28 [33] In terms of the above, the criminal revision petition stands disposed of.
Pending application(s), if any, also stands disposed of. LC records be sent back immediately along with a copy of this order.
JUDGE Saikat Sarma, P.A Crl.Rev.P No.46 of 2018