Tripura High Court
Sri Ajit Datta vs Smt. Swapna Roy Choudhury on 23 April, 2025
HIGH COURT OF TRIPURA
AGARTALA
Crl.A.No.16 of 2024
Sri Ajit Datta,
S/O Late Gopal Chandra Datta,
Resident of Vill.- Ramkrishna Pally,
P.O. & P.S. - Bishramganj,
District- Sepahijala, Tripura.
.... Appellant-Petitioner(s).
Versus
1. Smt. Swapna Roy Choudhury,
W/O.- Sri Ratan Roy Choudhury,
C/O- Sri Kajal Banik,
Resident of Vill.- Chandrapur (Jamtala),
P.O.- Resham Bagan,
P.S.- East Agartala,
District- West Tripura
2. The State of Tripura,
Represented by the Secretary,
Home Department, Government of Tripura,
Agartala.
.......Respondent(s).
For Appellant(s) : Mr. Kishor Kumar Pal, Adv.
Ms. Punam Murasing, Adv.
For Respondent(s) : Mr. Raju Datta, P.P. Mr. Hare Krishna Bhowmik, Adv.
Date of Hearing : 09.04.2025
Date of delivery of
Judgment and Order : 23.04.2025
Whether fit for
Reporting : YES
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is preferred challenging the judgment and order of acquittal dated 27.03.2024 delivered by Learned Page 2 of 33 Sub-Divisional Judicial Magistrate, Bishalgarh, Sepahijala, Tripura in connection with case No. N.I. 02/2020 under Section 138 of N.I. Act, 1881.
02. Heard Learned Counsel Mr. Kishor Kumar Pal appearing on behalf of the appellant-petitioner and also heard Learned Counsel Mr. Hare Krishna Bhowmik appearing on behalf of the respondent-accused.
03. During the pendency of the appeal, a separate application was filed by the appellant for permitting the appellant to adduce additional evidence. Accordingly, the matter was heard at the time of hearing of the main appeal. Admittedly, this case was filed due to dishonour of cheque for insufficiency of fund. Now, here in this appeal this Court is to see whether the judgment and order of acquittal delivered by Learned SDJM, Bishalgarh, Sepahijala, Tripura was in accordance with law or not.
04. The case of the appellant was in short is that on 30.03.2019 the present respondent-accused took a sum of Rs.6,00,000/- (Rupees Six Lakhs) as loan from the appellant with a promise to return the same within 30 days. The respondent-accused failed to discharge his burden. Thereafter on 21.01.2020 the respondent-accused drew a check bearing No.640768 dated 21.01.2020 for an amount of Rs.6,00,000/- (Rupees Six Lakhs) from his account bearing No.10915232305 maintained in State Bank of India, Agartala Branch, for Page 3 of 33 payment of the said amount to the appellant for the purpose of discharge, in whole or in part, of any debt or other liability, but the same was returned by the State Bank of India, Bishramganj Branch unpaid due to insufficiency of fund.
05. The appellant thereafter served notice to the respondent-accused to meet out the payment within 15 days from the date of receipt of notice issued as he failed to meet up the payment, so the case was filed under Section 138 of N.I. Act, 1881.
06. Before the Learned Trial Court, the appellant and her one witness were examined and cross-examined as PWs-1 and 2 and relied upon some documents which were marked as Exhibits.
Name of the witnesses of the appellant-
complainant along with Exhibits are given below:-
A. Prosecution witnesses:
1. Sri Ajit Dutta
2. Sri Ujjwal Kirti B. Prosecution exhibits:
1. Exbt. 1: Complainant petition
2. Exbt. 1(a): Signature of PW1 on the complaint
3. Exbt. 2: Original Cheque
4. Exbt. 3: Original deposit slip
5. Exbt. 4: Original return memo report
6. Exbt. 5: Legal notice
07. In order to prove the case, the Learned Trial Court framed the following points for determination of this case:-
i) Whether the accused drew the cheque bearing No.640768 dated 21.01.2020 of Rs.
Six Lakh only from his account No.10915232305 maintained in the State Bank of India, Agartala Branch, for payment of the amount to complainant Sri Ajit Dutta from out of that account?Page 4 of 33
ii) Whether such cheque was drawn for the discharge, in whole or in part, of any debt or other liability?
iii) Whether the cheque was returned by the State Bank of India, Bishramganj Branch unpaid because of the amount of money standing to the credit of that account to be insufficient to honour the cheque?
iv) Whether the complaint has been lodged to the Court after fulfilling the legal requirements provided under section 138 proviso and section 142 of the Negotiable Instruments Act, 1881?
Thereafter on conclusion of trial, Learned Court below delivered the judgment acquitting the respondent- accused from the charge punishable under Section 138 of N.I. Act.
08. Before this Court, at the time of hearing, Learned Counsel for the appellant drawn the attention of the Court that to prove the charge the appellant-complainant took all necessary steps but the postal receipt through which the advocate's notice was sent could not be produced at the time of recording evidence, but the same was later on produced before the Learned Trial Court. The Learned Trial Court without taking cognizance of anything on that, acquitted the respondent-accused from the charge of the case. So, on conclusion of argument, Learned Counsel for the appellant urged before the Court to remand back the case with a direction to permit the appellant to adduce additional evidence and referred few citations.
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In Oriental Bank of Commerce Vs. Prabodh Kumar Tewari reported in (2022) 2 TLR (SC) 223 Hon'ble the Apex Court in Para Nos.15 and 17 observed as under:-
"15. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under section 139.
17. For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defence whether cheque was issued towards payment of a debt or in discharge of a liability."
Referring the same, Learned Counsel drawn the attention of the Court that the drawer in the case at hand i.e. the respondent-accused signed the cheque and handed it over to the appellant-complainant towards discharge of payment of debt or liability, so there is no scope to take any other inference that the cheque was duly signed by the respondent- accused but the other columns were not filled up by the respondent-accused.
He also referred another citation in Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SCC 197 wherein in Para Nos. 23 and 33 the Hon'ble Apex Court observed as under:-
"23. In Kumar Exports v. Sharma Carpets:
(2009) 2 SCC 513, this Court reiterated that there is a presumption that every negotiable instrument duly executed, is for discharge of a debt or liability, but the presumption is rebuttable by proving the contrary. In the facts and circumstances of the case it was found that the cheque in question was towards advance for purchase of carpets, which were in fact not sold by the payee of the cheque to Page 6 of 33 the drawer, as proved from the deposition of an official of the Sales Tax Department, who stated that the payee had admitted that he had not sold the carpets.
33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted."
Referring the same, Learned Counsel further drawn the attention of the Court that here in the case at hand the appellant duly proved the dishonoured cheque in accordance with law towards payment made by the respondent-accused to meet up the debt or liability i.e. the loan amount which she took from the complainant.
Learned Counsel also referred another citation in Ranagappa Vs. Sri Mohan reported in (2010) 11 SCC 441 wherein in Para Nos.9 and 15 the Hon'ble Apex Court observed as under:-
"9. The trial Judge found in favour of the accused by taking note of some discrepancies in the complainant‟s version. As per the trial Judge, in the course of the cross-examination the complainant was not certain as to when the accused had actually issued the cheque. It was noted that while the complaint stated that the cheque had been issued in December 2000, at a later point it was conceded that the cheque had been handed over when the accused had met the complainant to obtain the work completion certificate for his house in March 2001. Later, it was stated that the cheque had been with the complainant about 15-20 days prior to the presentation of the same for encashment, which would place the date of handing over of the cheque in January 2001.
15. Furthermore, during the cross-examination of the complainant, it was suggested on behalf of Page 7 of 33 the accused that the complainant had the custody of the cheque since 1998. This suggestion indicates that the accused was aware of the fact that the complainant had the cheque, thereby weakening his claim of having lost a blank cheque. Furthermore, a perusal of the record shows that the accused had belatedly taken up the defence of having lost a blank cheque at the time of his examination during the trial. Prior to the filing of the complaint, the accused had not even replied to the notice sent by the complainant since that would have afforded an opportunity to raise the defence at an earlier stage."
Referring the same Learned Counsel for the appellant further submitted that in the case at hand the respondent-accused took the plea that she had received Rs.60,000/- (Rupees Sixty Thousand) from the appellant and the same amount was repaid within time and at the time of taking of payment she issued one cheque in favour of the appellant but according to the respondent-accused that in spite of making of payment, the said cheque was not refunded by the bank. In this regard, according to the Learned Counsel for the appellant no FIR or complaint was lodged by the respondent-accused either to the police station or to the bank where her account was maintained to the concerned bank informing that her cheque has been lost on misappropriated. So, the plea taken by the respondent-accused cannot be accepted in this case.
He also referred another judgment dated 17.02.2025 delivered by this Court in connection with Crl. A. No.08 of 2024, wherein this Court directed the Learned Trial Court in a case of similar nature to rehear the case. Page 8 of 33
09. On the other hand, Learned Counsel Mr. H. K. Bhowmik appearing on behalf of the respondent-accused first of all drawn the attention of the Court, that the case filed by the appellant was not maintainable because that was not supported by an affidavit.
Learned Counsel thereafter, further submitted that there was no plea taken in the complaint petition filed by the appellant that the notice as required under law was served upon the respondent-accused. Furthermore, according to Learned Counsel the source of Rs.6,00,000/- (Rupees Six Lakhs) was not mentioned in the complaint petition. The appellant-complainant simply stated that he was filing IT return but how the money was arranged, there was no evidence in this regard and furthermore the respondent- accused had no such business activity at any point of time with the complainant. So, the story as projected by the appellant was/is not at all maintainable.
10. Learned Counsel appearing for the respondent- accused further submitted that the prayer of the appellant to permit him to adduce additional evidence was also not maintainable as because the address mentioned in the same was shown as Khayerpur but the residential address of the respondent-accused was at Resham Bagan. Furthermore, the appellant-complainant before the Learned Trial Court did not take any step to prove that legal notice was served upon the Page 9 of 33 respondent-accused in accordance with the requirement of the N.I. Act. So, Learned Counsel submitted that the postal receipt was not authentic and rather the same was doubtful. So according to Learned Counsel, the Learned Trial Court after considering the oral/documentary evidence on record rightly delivered the judgment in favour of the respondent-accused and in support of his contention, Learned Counsel Mr. H. K. Bhowmik referred few citations.
In Basalingappa Vs. Mudibasappa reported in (2019) 5 SCC 418 Hon'ble the Apex Court in Para Nos.14, 15, 16, 18, 24, 25.3, 26, and 32 observed as under:-
14. S.B. Sinha, J. in M.S. Narayana Menon v. State of Kerala: (2006) 6 SCC 39 had considered Sections 118(a), 138 and 139 of the Act, 1881. It was held that presumptions both under Sections 118(a) and 139 are rebuttable in nature. Explaining the expressions "may presume" and "shall presume"
referring to an earlier judgment, the following was held in para 28:
"28. What would be the effect of the expressions "may presume", "shall presume" and "conclusive proof" has been considered by this Court in Union of India v. Pramod Gupta: (2005) 12 SCC 1, in the following terms:
„52. ... It is true that the legislature used two different phraseologies "shall be presumed" and "may be presumed" in Section 42 of the Punjab Land Revenue Act and furthermore although provided for the mode and manner of rebuttal of such presumption as regards the right to mines and minerals said to be vested in the Government vis-a-vis the absence thereof in relation to the lands presumed to be retained by the landowners but the same would not mean that the words "shall presume" would be conclusive. The meaning of the expressions "may presume" and "shall presume" have been explained in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that the court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression "shall presume" cannot be held to be synonymous with "conclusive proof‟.‟ "Page 10 of 33
15. It was noted in M.S. Narayana Menon case:
M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39, that the expression "shall presume"
cannot be held to be synonymous with conclusive proof. Referring to definition of words "proved"
and "disproved" under Section 3 of the Evidence Act, 1872 the following was laid down in para 30:
"30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon."
16. This Court in M.S. Narayana Menon case: M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 held that what is needed is to raise a probable defence, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon. Dealing with standard of proof, the following was observed in para 32:
"32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies."
18. This Court in Krishna Janardhan Bhat case:
(2008) 4 SCC 54 again reiterated that whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". In para 34, the following was laid down:
"34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies."
24. The above Kishan Rao case: Kishan Rao v. Shankargouda, (2018) 8 SCC 165 was a case where this Court did not find the defence raised by the accused probable. The only defence raised was that cheque was stolen having been rejected by the trial court and no contrary opinion having been expressed by the High Court, this Court reversed Page 11 of 33 the judgment of the High Court restoring the conviction. The respondent cannot take any benefit of the said judgment, which was on its own facts. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
26. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of PW 1, when the specific question was put that cheque was issued in relation to loan of Rs. 25,000 taken by the accused, PW 1 said that he does not remember. PW 1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs. 4,50,000 to Balana Gouda towards sale consideration. Payment of Rs. 4,50,000 being admitted in the year 2010 and further payment of loan of Rs. 50,000 with regard to which Complaint No. 119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ext. D-2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs. 18 lakhs. During his cross-examination, when financial capacity to pay Rs. 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.
32. The High Court without discarding the evidence, which was led by defence could not have held that the finding of trial court regarding financial capacity of the complainant is perverse. We are, thus, satisfied that the accused has raised a probable defence and the findings of the trial court that the complainant failed to prove his financial capacity are based on evidence led by the defence. The observations of the High Court that findings of the trial court are perverse are unsustainable. We, thus, are of the view that judgment of the High Court is unsustainable." Page 12 of 33
Referring the same, Learned Counsel for the respondent-accused submitted that the appellant before the Learned Trial Court could not prove the case in accordance with law, so the Learned Court below rightly delivered the judgment and order of acquittal.
He also referred another citation of the Hon'ble Supreme Court of India in Mallappa and Ors. Vs. State of Karnataka [in Crl. A. No.1162 of 2011 dated 12.02.2024] wherein in Para Nos.25 and 26, the Hon'ble Apex Court observed as under:-
"25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to re- appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The „two-views theory‟ has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the Page 13 of 33 evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj v. State of Karnataka : (2015) 10 SCC 230.
"13. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. :(2002) 9 SCC 639 has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."
(emphasis supplied) In Sanjeev v. State of H.P.:(2022) 6 SCC 294, the Hon‟ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus:
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka:(2019) 5 SCC 436, Anwar Ali v. State of H.P.:(2020) 10 SCC 166.
7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.:AIR 1955 SC
807) 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal Page 14 of 33 (see Sambasivan v. State of Kerala:(1998) 5 SCC 412.)"
Referring the case Learned Counsel Mr. Bhowmik, submitted that if it appears to the Court that in this case there are two views theory, in that case the benefit should be given to the respondent-accused.
Further, he also referred another citation in connection with Crl. A. No.478 of 2024 and finally on conclusion of argument, Learned Counsel submitted that before the Learned Trial Court the present appellant could not prove the case in accordance with the law. So, Learned Court below after considering the evidence on record rightly delivered the judgment and there is no scope to interfere with the same at this stage. So, he urged for dismissal of this appeal and also urged for dismissal of the application for permitting the appellant to adduce additional evidence.
11. It is to be noted here that, in course of examination under Section 313 of Cr.P.C., the respondent-accused denied the case of the appellant but took the plea that she took a sum of Rs.60,000/- (Rupees Sixty Thousand) from the complainant. When she gave a blank cheque to him and after 6/7 months she repaid the loan amount with interest but the appellant did not return back the said cheque to her and later on filed the case.
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As already stated before the Learned Trial Court, the appellant has adduced two witnesses including himself. So, let us discuss the evidence on record.
The appellant-complainant as PW-1 stated that on 30.03.2019, the respondent-accused took a sum of Rs.6,00,000/- as loan from him with promised to repay the same during one month but she did not fulfill her promise. Thereafter on 21.01.2020, she gave a cheque bearing No.640768 drawn on State Bank of India, Agartala Branch. On the same day, he presented the said cheque to SBI, Bishramganj Branch. On 27.01.2020 when he inquired about the said cheque that time it was informed by the Bank Manager that the cheque cannot be honored due to insufficiency of fund in the account of the accused. Thereafter, on 05.02.2020 he send a legal notice to the accused with request to pay the amount within 15 days. But the accused did not pay the amount. Hence he filed the case. He relied upon the complaint petition marked as Exbt.-P1 Series and his signature marked as Exbt.-P1(a). He also submitted the original cheque issued by the accused, original deposit slip, original return memo, report of the Bank Manager and legal notice and those documents were relied upon Exbt.-P2, Exbt.-P3, Exbt.-P4 and Exbt.-P5.
During cross-examination, he deposed that at the time of filing the petition he did not submit the original documents and in the complaint petition he did not mention as Page 16 of 33 to whether the legal notice was received by the accused or not and also could not say as to whether the notice was actually received or not by the respondent-accused. But he volunteered that he received a telephonic call from the accused where she stated that she had received a legal notice. Again stated that at the time of making payment of loan, he was running a travel agency and he was an income tax payee. Also, admitted that in the petition he did not mention as to from where he collected Rs. 6,000/- (Rupees Six Thousand) to give the accused. No agreement was done when the amount was paid. The accused is not his relative and also stated that in the complaint petition it was not mentioned when the cheque was received by him and also did not mention the account number of the accused in the complaint petition. He also admitted that his yearly income was Rs.4,00,000/- but again volunteered that sometimes his yearly income goes up to Rs.7-8 Lakhs.
12. PW2, Ujjwal Kirti, banking official stated that whenever a cheque is present for honoring, it is dishonored due to many reasons such insufficiency of fund, mismatch of signature etc. In case of dishonor of cheque, reasons of the same are mentioned in the return memo.
During cross-examination, he stated that without perusal of the bank documents it is not possible on his part to say as to whether in the instant case the cheque was dishonoured due to insufficiency of fund or not. But again Page 17 of 33 admitted that, at the time of honoring the cheque they verify the signature of the person who issued the cheque with his signature lying with the bank record.
These are the sum and substance of the evidence on record.
13. I have perused the evidence on record and also the judgment delivered by Learned Trial Court below. Admittedly, the respondent-accused in course of examination under Section 313 of Cr.P.C. admitted that she took a sum of Rs.60,000/- (Rupees Sixty Thousand) as loan from the present appellant and according to her the said amount was repaid with interest. In this regard no documentary evidence is proved by the respondent-accused. But surprisingly during cross- examination she took the defence that Rs.6,000/- (Rupees Six Thousand) was borrowed from the complainant which appears to be contradictory, so this may be either due to typing mistake or improper cross-examination by the respondent accused.
14. Learned Trial Court below at the time of delivery of judgment discussed all the relevant issues but lastly came to be observation that no notice as required by law was proved in this case. From the documentary evidence relied upon by the appellant complainant it appears that before the Learned Trial Court the appellant proved the disputed cheque, bank return Page 18 of 33 memo, copy of Advocate's notice which was sent to the respondent-accused as alleged by the appellant etc.
15. Admittedly, in this case, the respondent-accused did not dispute his signature on Exbt.2. The appellant also relied upon bank deposit slip that is Exbt.3. Endorsement of the bank/return memo Exbt.4 and copy of legal notice Exbt.5. From the defence laid down by the respondent-accused, it appears to me that they did not dispute about fulfillment of the legal requirements regarding prosecution laid by the present appellant.
16. Learned Counsel for the respondent-accused in course of hearing of argument failed to satisfy anything before this Court that the requirements of the N.I. Act were lacking in this case save and except proof of postal receipt showing sending of legal notice. It is on record that the notice was signed on 05.02.2020 by the Learned Counsel on behalf of the appellant although the same was dispatched/posted on 07.02.2020. The postal receipt or endorsement showing delivery of notice to the respondent-accused could not be proved by the appellant before the Learned Trial Court. But the Learned Trial Court at the time of delivery of judgment stated that the same was later on produced before the Court although the same was not taken into consideration for marking of Exhibit by the Learned Court below. From the record of the Learned Court below, further it appears that the appellant Page 19 of 33 himself or his engaged counsel did not take any proper step before the Learned Trial Court to prove that document as required by law.
17. The respondent-accused by way of defence theory also failed to show any cogent ground that she did not receive Rs.6,00,000/- (Rupees Six Lakhs) from the appellant complainant, rather drawn the attention of the Court that the source of money was not disclosed. Even the IT return also did not contain the said amount paid by the appellant-complainant in favour of the respondent-accused. In the considered opinion of this Court, if the cheque is proved and the signature is duly proved then the onus lies upon the respondent to adduce rebuttable evidence on record that the cheque was not paid for discharge of the debt or liability.
18. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan And another reported in (1999) 7 SCC 510, Hon'ble the Apex Court in Para Nos.19-26 observed as under:-
"19. In Black‟s Law Dictionary "giving of notice" is distinguished from "receiving of the notice": "A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it." A person "receives" a notice when it is duly delivered to him or at the place of his business.
20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure.
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21. In Maxwell‟s Interpretation of Statutes, the learned author has emphasised that "provisions relating to giving of notice often receive liberal interpretation". The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to Section 138 of the Act show that the payee has the statutory obligation to "make a demand" by giving notice. The thrust in the clause is on the need to "make a demand". It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is despatched his part is over and the next depends on what the sendee does.
22. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him (vide Harcharan Singh v. Shivrani : (1981) 2 SCC 535 and Jagdish Singh v. Natthu Singh : (1992) 1 SCC 647.)
23. Here the notice is returned as unclaimed and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The section reads thus:
"27. Meaning of service by post--Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression „serve‟ or either of the expressions „give‟ or „send‟ or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
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. Page 21 of 33
25. Thus, when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause (c) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption.
26. The High Court is, therefore, right in holding the accused guilty of the offence under Section 138 of the Act. Still there is one more aspect, though neither side has argued about it before us, which requires elucidation. We will deal with that aspect now."
19. Further, Hon'ble Supreme Court in Vishnoo Mittal Vs. Shakti Trading Company reported in 2025 SCC OnLine SC 558 in Para No.9 observed as under:-
"9. The return of the cheques dishonoured simpliciter does not create an offence under section 138 NI Act, which reads as under:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice;
in writing, to the drawer of the cheque, within thirty days of the receipt of Page 22 of 33 information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability." Clause (c) of the proviso to Section 138 of NI Act makes it clear that cause of action arises only when demand notice is served and payment is not made pursuant to such demand notice within the stipulated fifteen-day period. This Court in Jugesh Sehgal v. Shamsher Singh Gogi (2009) 14 SCC 683 has explained the ingredients of Section 138 of NI Act offence as follows:
"13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act."
In other words, the cause of action arises only when the amount remains unpaid even after the Page 23 of 33 expiry of fifteen days from the date of receipt of the demand notice."
From the aforesaid principle of law laid down by the Hon'ble Apex Court it appears that to prove a charge under Section 138 of N.I. Act certain ingredients are required to be fulfilled by the complainant.
20. Further, in V. Raja Kumari Vs. P. Subbarama Naidu And Another reported in (2004) 8 SCC 774, Hon'ble the Apex Court in Para Nos.6 -20 observed as under:-
"6. The factual position in Shakti Travel: (2002) 9 SCC 415 as appears from the short order of this Court was different. There was no mention in the complaint about service of notice. In the instant case, there is an assertion about incorrect endorsement regarding locking of the house. The effect of such endorsement has to be adjudged during trial.
7. The important point to be decided in this case is whether the cause of action has arisen at all as the notice sent by the complainant to the accused was returned with the endorsement "house been locked". The conditions pertaining to the notice to be given to the drawer have been formulated and incorporated in clauses (b) to (c) of the proviso to Section 138 of the Act. The said clauses are extracted below:
"138. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice."
8. On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in Page 24 of 33 the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address.
9. In Black's Law Dictionary "giving of notice" is distinguished from receiving of the notice:
"A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it." A person "receives" a notice when it is duly delivered to him or at the place of his business.
10. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader, and clips an honest payee as that would defeat the very legislative measure.
11. In Maxwell's Interpretation of Statutes, the learned author has emphasised that "provisions relating, to giving of notice often receive liberal interpretation". The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to Section 138 of the Act show that the payee has the statutory obligation to "make a demand" by giving notice. The thrust in the clause is on the need to "make a demand". It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does.
12. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him (vide Harcharan Singh v. Shivrani: (1981) 2 SCC 535 and Jagdish Singh v. Natthu Singh: (1992) 1 SCC 647.
13. Here the notice is returned as addressee being not found and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act, 1897 will be useful. The section reads thus:
"27. Meaning of service by post.- Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, Page 25 of 33 whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
14. 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 dispatched 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.
15. This position was noted by this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan: (1999) 7 SCC 510.
16. The object of notice is to give a chance to the drawer of the cheque to rectify his omission and also to protect an honest drawer. Service of notice of demand in clause (b) of the proviso to Section 138 is a condition precedent for filing a complaint under Section 138 of the Act. In the present appeal there is no dispute that notice was in writing and this was sent within fifteen days of receipt of information by the appellant Bank regarding return of cheques as unpaid. Therefore, the only question to be examined is whether in the notice there was a demand for payment. (See Central Bank of India v. Saxons Farm : (1999) 8 SCC 221.)
17. At this juncture it is relevant to take note of order passed by this Court in State of M.P. v. Hiralal : (1996) 7 SCC 523. It was, inter alia, noted as follows:
"1. In view of the office report, it would be clear that the respondents obviously managed to have the notice returned with postal remarks 'not available in the house', 'house locked' and 'shop closed' respectively. In that view, it must be deemed that the notices have been served on the respondents."
18. In Madhu v. Omega Pipes Ltd.: (1994) 1 An LT (Cri) 603 (Ker), the scope and ambit of Section 138 clauses (b) and (c) of the Act were noted by the Kerala High Court and Justice K.T. Thomas (as His Lordship then was) observed as follows:
"[I]n clause (c) of the proviso the drawer of the cheque is given fifteen days from the date of receipt of the said notice' for making payment. This affords clear indication that 'giving notice' in the Page 26 of 33 context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer in his correct address. If receipt or even tender of notice is indispensable for giving the notice in the context envisaged in clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrongdoer to take advantage of his tactics. Hence the realistic interpretation for the expression 'giving notice' in the present context is that, if the payee has dispatched notice in the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice."
19. Burden is on the complainant to show that the accused has managed to get an incorrect postal endorsement made. What is the effect of it has to be considered during trial, as the statutory scheme unmistakably shows the burden is on the complainant to show the service of notice. Therefore, where material is brought to show that there was false endorsement about the non- availability of noticee, the inference that is to be drawn has to be judged on the background facts of each case.
20. In view of the aforesaid, the inevitable conclusion is that the High Court was justified in its view and no interference is called for in this case."
21. Again, the Hon'ble High Court of Allahabad in Top Filling Point Proprietor Rakesh Agrawal Vs. State of U.P. and Another reported in 2023 SCC OnLine All 4237 in Para Nos.5-11 observed as under:-
"5. The contention of the respondent is that though there is no mention of the date on which the demand notice was actually received by the accused in the order passed by the learned trial court, however, the revisional court referred to the track consignment report of the Postal Department, hence the order of the trial court cannot be faulted.
6. From perusal of the order passed in revision, it is noticed that the learned court of revision took up the above contention and observed that indeed there was no mention of any specific date, as regard service of demand notice, however it was found that there was track consignment, paper on record, which belied the submission of the revisionist.Page 27 of 33
7. The petitioner has referred to a judgment of Allahabad High Court in Deepak Kumar and Another v. State of U.P. and Another; 2007 (2) Civil Court Cases 467 (Allahabad). I went through the judgment. In para no.7, the High Court enumerated essentials which should have been fulfilled before the court could take cognizance of the offence under section 138 of the N.I. Act. It said that in the event of absence of any of the necessary requirements, the offence shall not be made out. The relevant portion of para no.7 is as below:-
"Thus, for making out an offence under Section 138, NI Act, four dates are very relevant to be mentioned in the complaint or at least they should be clear from the papers filed along with the filing of the complaint itself. These dates are (I) date mentioned on the cheque;
(ii) date of its deposit in the bank for encashment (for knowing its period of validity), the date on which the notice/memo's advise from the bank was received by the drawee/payee or holder of the cheque regarding its bouncing because of insufficiency of funds by using any phraseology for the same (for determining the period of notice, which is one month, from such a date), the date of notice given by the drawee/payee to the drawer/payer of the cheque (to determine fifteenth day so as to bring "cause of action" to life, in case the cheque money is not paid during this period), the date on which the said notice is received or served to the drawer/payer of the cheque (to determine the date on which the offence is made out, in case the cheque money is not paid within fifteen days of the service of the notice) and lastly, the date of filing of the complaint (for determining the jurisdiction of the Court to entertain the complaint within the prescribed period of limitation and complaint not being time-
barred). If these dates are not perceptible from the complaint or papers accompanying it then the Magistrate has not jurisdiction to entertain the complaint for offense under Section 138, NI Act."
8. From the above observation, this much is clear that the date of the receipt of notice is very much important but it is not necessary that any particular date as regard receipt of demand notice should mandatorily be mentioned in the complaint itself. The day of receipt of demand notice can very well be inferred from the documents/evidence on record.
9. The petitioner also referred to a judgment of the Supreme Court in Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel and Another; 2022 (4) Civil Court Cases 279 (S.C.). The Supreme Court in Ajeet Seeds Limited v. K. Gopala Krishnaiah; (2014) 12 SCC 685, specifically dealt with the absence of averments in a complaint about service Page 28 of 33 of notice upon accused. In the aforesaid case, the Supreme Court agreed with the view taken in C.C. Alavi Haji v. Palapetty Muhammed (supra). The court explained the nature of presumptions which can be drawn under section 114 of the Evidence Act and under 27 of the General Clauses Act. It was held as below:-
"9. This Court then explained the nature of presumptions under Section 114 of the Evidence Act and under Section 27 of the GC Act and pointed out how these two presumptions are to be employed while considering the question of service of notice under Section 138 of the NI Act. The relevant paragraphs read as under:
"13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G. C. Act is extracted below:
"27. Meaning of service by post. - Where any Central Act or regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post".
14. Section 27 gives rise to a presumption that service of notice has been effected when it is Page 29 of 33 sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice.
Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh (1992) 1 SCC 647; State of M.P. v. Hiralal & Ors. (1996) 7 SCC 523 and V. Raja Kumari v. P.Subbarama Naidu & Anr. (2004) 8 SCC 74] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."
10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business." From the above judgment of the Supreme Court, the controversy which has been raised by the petitioner is set at rest.
10. In the instant case the trial court seems to have drawn a presumption of law as regard service of demand notice. In my opinion, even if the track consignment report is not filed, the court may presume service of notice in ordinary course of business, if it was shown that the same was sent by registered post on correct address.
11. In view of the above, I do not find any infirmity, illegality or irregularity in the summoning order dated 19.07.2022 as well as the order dated 01.06.2023. Therefore, the petition lacks merit and is hereby dismissed."
Page 30 of 33
22. After going through the aforesaid citations, it appears to this Court that the appellant before the Learned Trial Court save and except the postal receipt showing delivery of legal notice upon the respondent-accused fulfilled all the requirements to prove the charge under Section 138 of N.I. Act. Although the same was later on produced before the Learned Trial Court but that was not taken into consideration by the Learned Trial Court at the time of delivery of judgment. In my considered view, Learned Trial Court committed error by not allowing the present appellant to prove the postal receipt before delivery of judgment for the sake of justice because in view of the aforesaid principles of law laid down by the Hon'ble Apex Court and other High Courts that an honest payee should not suffer due to the dishonest tactics of a cheque drawer.
During cross examination, the complainant at the instance of the respondent-accused volunteered before the Court that the respondent-accused admitted the fact of receipt of legal notice but there is no evidence on record that she discharged her liability by making payment within time. Although, admittedly, in this case, the postal acknowledgement could not be proved by the appellant at the time of recording evidence. So, the defence story that the legal notice was not duly served and it was served to Khayerpur Post Office and also the defence story that the source of income was not disclosed and also no IT return was submitted to substantiate Page 31 of 33 that the payment was made, in my considered view was not a good defence to rebut the presumption as laid down in the aforesaid principles of law by the Hon'ble Apex Court and also the relevant provisions under N.I. Act.
23. Learned Trial Court in the judgment in Para No.13 in the last part made the observation that the cheque in question was issued by the respondent-accused in favour of the complainant for discharging the amount of Rs.6,00,000/- (Rupees Six Lakhs) taken by the accused and also came to the observation that the disputed cheque in question that is Exbt.2 was presented to the bank but the same was not honoured due to insufficiency of fund. But again came to the observation that the case was not proved as per requirements of Section 138 of N.I. Act which in my considered view was not proper. Another interesting point is that Learned Trial Court discussed all the points in detail but at the time of preparation of the judgment made the observations in such a manner which appears to be contradictory to each other.
24. Another point that in Para No.14 it was mentioned that the liability was Rs.20,00,000/- in place of Rs.6,00,000/- which appears to be a clerical error. But considering the nature of the case, the concerned officer should also be very much cautious at the time of delivery of judgment and before signing the judgment the same should be thoroughly checked up to avoid any error or typing mistake.
Page 32 of 33
25. I have also seen the application for permitting the appellant to adduce additional evidence and accordingly heard both the sides at length. As it is already discussed that in the judgment Learned Trial Court below written that the appellant complainant after recording evidence produced the postal receipt or the acknowledgment report although the same was not accepted by the Court. But in case of this nature, since a party has come before the Court seeking redress, so, at the time of delivery of judgment it is the duty of the concerned Court to keep a reasonable opportunity to the parties of litigation so that no undue hardships or prejudice is caused to any of the parties.
26. So after going through the record of the Learned Court below, including the judgment delivered by the Learned Trial Court and also the aforesaid principals of law laid down by the Hon'ble Apex Court and the citations referred by the parties, it appears to this Court that this is a fit case which requires to be remanded back to the Learned Trial Court below to rehear the evidence on record a fresh in accordance with law and thereafter to deliver a fresh judgment.
27. Accordingly the instant appeal is allowed. The judgment and order of acquittal dated 27.03.2024 delivered by Learned SDJM, Bishalgarh, Sepahijala, Tripura in Case No.NI 02 of 2020 is hereby set aside. The matter is remanded back to the Learned Trial Court below to give opportunities to both Page 33 of 33 the parties to adduce fresh evidence (oral/documentary) and thereafter to deliver a fresh judgment after hearing arguments, in accordance with law within a period of 6(six) months from the date of receipt of a copy of this judgment. The application for adducing additional evidence stands disposed of accordingly.
Registry be asked to return back the relevant records to the party concerned if they so desire and supply the same to the counsel for the parties after keeping photocopies of the same.
This appeal stands disposed of accordingly. Send down the LCR along with a copy of the judgment.
Pending application/s, if any, also stands disposed of.
JUDGE
Digitally signed by
AMRITA AMRITA DEB
Date: 2025.04.25
DEB 16:13:03 +05'30'
Amrita