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Case no. 420/13
In the Court of Additional Chief Judicial Magistrate at Dibrugarh .
Present :-Imdad Ahmed , A.J.S
Judgment of Case No.C.R 420/2013
u/s 138 N.I ACT
Complainant :- Md. Assad Ghalib
- Versus –
Accused :- Shri Pabitra Sharma
Advocates appeared :-
For Complainant :- Mr S.Dutta, Mr S.Raja, , Advocates.
For The Accused :- Mr Ajit Borgohain, Advocate
Date of Offence explanation :- 30-12-13
Evidence recorded on :- 12-06-14 , 19-01-15
Argument heard on :- 04-10-16
Date of Judgment :- 14-10-16
Judgment delivered on :- 21-10-16.
JUDGMENT
1. The case of the complainant is that he is running a business of
Travel Agency at Graham Bazar : Dibrugarh with his own vehicles and
he used to run his Travel Agency in different parts of the State including
he Mohanbari Airport .
2. The accused on the other hand is a Lead Assistant (Commercial)
of Air India : Mohanbari Airport . It is stated that the accused was
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Case no. 420/13
earlier residing at Red-Cross road and was a neighbour to the
Complainant and in the course of the business as well as being a
neighbour , the accused developed a good relationship with the
complainant .
3. It is stated that the accused had told the Complainant one day
that he was facing financial crisis due to irregular payment of salary and
therefore , the accused sought for some financial help from the
complainant . The complainant having cordial relationship with the
accused decided to provide financial help to the accused to meet the
educational expenses of his children from time to time .
4. The complainant stated that on 29-10-12 , the complainant took
further amount of Rs 80,000/- and thereafter , by executing a
promissory note in favour of the complainant had admitted receipt of a
total amount of Rs 3.5 Lakhs which the accused had taken within last
sixteen months before execution of the promissory note .
5. The accused failed to repay the loan amount to the complainant
and on demand , the accused delivered a cheque of Rs 3,50,000/- to the
complainant which was drawn at State Bank of India : Thana Chariali
Branch .The complainant deposited the said cheque in his account
being no. 832335248 maintained at Indian Bank : Dibrugarh branch but
surprisingly , the said cheques was dishonoured on 24-07-13 due to
“insufficient fund” in the account of the accused .It is stated that on
06-08-13 , the complainant issued a legal notice to the accused person
by registered post with A/D asking him to pay the accused the cheque
amount to the complainant within 15 days from the date of receipt of
notice .
6. That the accused person despite receipt of notice on 19-10-12 ,
has not yet paid the cheque amount and hence , the accused has
2
Case no. 420/13
neglected to pay the cheque amount and therefore , the accused has
committed an offence under Section 138 of N.I Act .
7. Thereafter , the complainant filed this complaint on 06-09-13
and on the basis of the affidavit filed in lieu of the examination under
Section 200 Cr.P.C and the documents filed by the complainant ,
cognizance of an offence under Section 138 N.I Act was taken and
summon was issued for appearance of the accused person . On
appearance of the accused person, the particulars of offence under
Section 138 of N.I Act was explained to the accused to which he pleaded
not guilty and claims to be tried .`
8. During the trial of the case , complainant examined himself as
PW1 and another witness and declined to adduce further
evidence .Accused was examined under Section 313 Cr.P.C and during
such examination , he denied that the said cheque was issued by him
for discharge of any debt or consideration . The accused stated he used
to have good cordial relation with the complainant and a blank cheque
was delivered by him to the complainant when the complainant asked
him to stood as his guarantor when the Complainant availed a car loan
from a Finance Company but the complainant kept the cheque with him
and by misusing the cheque has filed the instant case . Accused
however did not adduced any evidence and only relied upon the
evidence of the complainant for discharging the burden of rebuttable
presumption .
9. I have heard the learned counsel for the accused as well as the
learned counsel for the Complainant.
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Case no. 420/13
10. After perusing the materials on record , the following point for
determination was framed by this Court for the just decision of the case
.
11. Points for determination :-
1. Whether the accused issued the cheque for discharge of
any legally enforceable debt or liability ?
2. Whether the cheque in question was dishonored due to
insufficiency of fund in the account of the accused ?
3. Whether the accused had received the demand notice
issued by the accused ?
4. Whether the accused has committed the offence under
Section 138 of the Negotiable Instruments Act , 1881 ?
12. Discussion , Decision and reasons for the Decission :-
13. Point no.1 :- Whether the accused issued the cheque for
discharge of any legally enforceable debt or liability ?
14. PW1 stated that he runs a business of Travel Agency and he
used to run the same with his own vehicles in various parts of the State
including the Mohanbari Airport at Dibrugarh .PW1 stated that the
accused earlier was his neighbour and therefore being a neighbour as
well as his business client , he developed a good relation with the
accused . PW1 stated that the accused sought financial help from him
to meet the educational expenses of his daughter and son as well as
for repairing his vehicle from him on the ground that he was not
receiving his salary regularly due to some financial crisis in their
department .PW1 stated that considering such financial crisis , he gave
money from time to time to the accused by believing on the assurance
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Case no. 420/13
of the accused that the accused will return the money . PW1 stated that
on 29-10-12 , the accused took further amount of Rs 80,000/- ( Rupees
Eighty thousand ) and at the time of taking the cash amount of Rs
80,000/- (Rupees Eighty thousand ) , the accused executed a
promissory note of Rs 3,50,000/- ( Rupees Three Lakh fifty thousand)
only in his favour and thereby admitting total receipt of Rs 3,50,000/-
which the accused had taken in instalment within the last sixteen
months before execution of the promissory note .PW1 had exhibited the
following documents in support of his case in addition to some other
documents exhibited through PW2 :-
I. Exhibit No.1 :- Promissory note
II. Exhibit No.2 :- Cheque
III. Exhibit No.3 :- Pay-in-Slip
IV. Exhibit No.4 :- Return Memo
V. Exhibit- 5 :- Demand Notice
VI. Exhibit-6 and 7 :- Postal receipt
VII. Exhibit -8 and 9 :- A.D cards .
15. During cross-examination , PW1 stated that he had taken two
cars from Mahindra Finance –One Bolero and one Indica and the
accused stood as a guarantor for him and therefore the accused had
signed on a number of documents on his behalf . PW1 has denied the
suggestion that he took one blank cheque from the accused on the
belief that the same would be required while availing car loan . PW1 has
further stated that the particulars in Exhibit-2 cheque including the date
and amount were written by the accused in front of him . PW1 further
stated in his cross-examination that he granted loan to the accused by
way of installments . but he do not remember the number of
installments and the dates of disbursements . PW1 further stated that
he maintains an Income-Tax file but he have not mentioned the amount
due from the accused in the Balance-Sheet . PW1 stated that he
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Case no. 420/13
maintains a book of account but he have not submitted any document
to show that he granted loan to the accused .
16. PW2 ( Shri Sanjay Kumar Chaudhuri ) who is the Branch Manager
has stated that he have brought the relevant documents to the Court
regarding the dishonor of cheque bearing no.233901 of an amount of
Rs 3,50,000/- drawn at State Bank of India. PW2 stated that the cheque
was deposited in the account of Assad Ghalib ( Complainant)
maintained in their Bank on 23-07-13 and after receiving the cheque , it
was sent for clearance to the SBI : Thana Chariali Branch . PW2 stated
that when the said cheque Exhibit-2 was deposited , we have put the
seal of the office but the said cheque was returned for “insufficient
fund” . PW2 exhibited the counter-part of the deposit slip of his bank as
Exhibit-3 . PW2 exhibited the return memo of the said cheque as
Exhibit-4 . PW2 exhibited the statement of account as Exhibit-9 and his
signature as Exhibit-9 (1) . During cross-examination , PW2 stated that
only Rs 7365/- was the balance amount of the complainant . PW2
further stated that on 16-07-13 , an amount of Rs 7295/- got deposited
in the account of the Complainant and on 31-07-13 , the complainant
got interest amounting to Rs 298/- only . I
17. In the light of the evidence adduced by PW1 and PW2 and the
plea taken by the accused during his examination under Section 313
Cr.P.C , let me find out whether the accused has been able to rebut the
presumption that the cheque was issued in discharge of a legally
enforceable debt . The defence of the accused was that he delivered
the cheque in question to the Complainant while he acted as a
guarantor at the time when the complainant purchased a vehicle on
loan from a finance company . The plea of the accused so far as the
promissory note is concerned is that he did not issued any promissory
note to the accused an d the purported signature of the executor in the
promissory note is not his signature .
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Case no. 420/13
18. In K.Prakashan –Versus- PK Surendran reported in 2008
(1) SCC 258 , the Hon’ble Supreme Court has stated that :- The
Negotiable Act raises two presumptions; firstly, in regard to the passing
of consideration as contained in Section 118(a) therein and, secondly, a
presumption that the holder of cheque receiving the same of the nature
referred to in Section 139 discharged in whole or in part any debt or
other liability. Presumptions both under Sections 118(a) and 139 are
rebuttable in nature. Having regard to the definition of terms 'proved'
and 'disproved' as contained in Section 3 of the Evidence Act as also
the nature of the said burden upon the prosecution vis-a-vis an accused
it is not necessary that the accused must step into the witness box to
discharge the burden of proof in terms of the aforementioned provision.
19. It is furthermore not in doubt or dispute that whereas the
standard of proof so far as the prosecution is concerned is proof of guilt
beyond all reasonable doubt; the one on the accused is only mere
preponderance of probability.
20. The Supreme Court in M.S Narayana Menon-Vs- State of
Kerela reported in 2006 (6) SCC 39 has stated that : - In terms of
Section 4 of the Evidence Act whenever it is provided by the Act that
the Court shall presume a fact, it shall regard such fact as proved
unless and until it is disproved. The words 'proved' and 'disproved' have
been defined in Section 3 of the Evidence Act (the interpretation clause)
to mean:Proved - A fact is said to be proved when, after considering the
matters before it, the Court either believes it to exist, or considers its
existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it
exists. Disproved - A fact is said to be disproved when, after considering
the matters before it the Court either believes that it does not exist, or
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Case no. 420/13
considers its non-existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the
supposition that it does not exist.17. Applying the said definitions of
'proved' or 'disproved' to 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.
21. The Hon’ble Supreme Court in Kumar Exports –Versus-
Sharma Carpets (2009) 2 SCC 513 has held that :- Section 118 of
the Act inter alia directs that it shall be presumed, until the contrary is
proved, that every negotiable instrument was made or drawn for
consideration. Section 139 of the Act stipulates that unless the contrary
is proved, it shall be presumed, that the holder of the cheque received
the cheque, for the discharge of, whole or part of any debt or liability.
Applying the definition of the word `proved' in Section 3 of the Evidence
Act to the provisions of Sections 118and 139 of the Act, it becomes
evident that in a trial under Section 138 of the Act a presumption will
have to be made that every negotiable instrument was made or drawn
for consideration and that it was executed for discharge of debt or
liability once the execution of negotiable instrument is either proved or
admitted. As soon as the complainant discharges the burden to prove
that the instrument, say a note, was executed by the accused, the rules
of presumptions under Sections118 and 139 of the Act help him shift
the burden on the accused. The presumptions will live, exist and survive
and shall end only when the contrary is proved by the accused, that is,
the cheque was not issued for consideration and in discharge of any
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Case no. 420/13
debt or liability. A presumption is not in itself evidence, but only makes
a prima facie case for a party for whose benefit it exists.
22. The use of the phrase "until the contrary is proved" in
Section 118 of the Act and use of the words "unless the contrary is
proved" in Section 139 of the Act read with definitions of "may
presume" and "shall presume" as given in Section 4 of the Evidence
Act, makes it at once clear that presumptions to be raised under both
the provisions are rebuttable. When a presumption is rebuttable, it only
points out that the party on whom lies the duty of going forward with
evidence, on the fact presumed and when that party has produced
evidence fairly and reasonably tending to show that the real fact is not
as presumed, the purpose of the presumption is over. The accused in a
trial under Section 138 of the Act has two options. He can either show
that consideration and debt did not exist or that under the particular
circumstances of the case the non-existence of consideration and debt
is so probable that a prudent man ought to suppose that no
consideration and debt existed. To rebut the statutory presumptions an
accused is not expected to prove his defence beyond reasonable doubt
as is expected of the complainant in a criminal trial. 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
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Case no. 420/13
believe that the consideration and debt did not exist or their non-
existence was so probable that a prudent man would under the
circumstances of the case, act upon the plea that they did not exist.
Apart from adducing direct evidence to prove that the note in question
was not supported by consideration or that he had not incurred any
debt or liability, the accused may also rely upon circumstantial
evidence and if the circumstances so relied upon are compelling, the
burden may likewise shift again on to the complainant. The accused
may also rely upon presumptions of fact, for instance, those mentioned
in Section 114 of the Evidence Act to rebut the presumptions arising
under Sections 118 and 139 of the Act. The accused has also an option
to prove the non-existence of consideration and debt or liability either
by letting in evidence or in some clear and exceptional cases, from the
case set out by the complainant, that is, the averments in the
complaint, the case set out in the statutory notice and evidence
adduced by the complainant during the trial. Once such rebuttal
evidence is adduced and accepted by the court, having regard to all the
circumstances of the case and the preponderance of probabilities, the
evidential burden shifts back to the complainant and, thereafter, the
presumptions under Sections 118 and 139 of the Act will not again
come to the complainant's rescue .
23. In Hiten P.Dalal _versus- Bratindranath Banerjee reported
in 2001 (6) SCC 16 , the Hon’ble Supreme Court has held that :-
“ 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.
Vaidvanatha Iyer MANU/SC/0108/1957 : 1958CriLJ232 : 1958CriLJ232, 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 introduce es an exception to the general rule as to the
burden of proof in criminal cases and shifts the onus on to the accused"
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Case no. 420/13
(ibid). 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 non-existence of the
presumed fact.23. In other words, provided the facts required to form
the basis of a presumption of law exists, the discretion is left with the
Court but the 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, "after
considering the matters before it, the Court either believes it to exist, or
considers its existence so probable that a prudent man ought, under
the circumstances of the particular case, to act upon the supposition
that it exists" and 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'.
24. In the present case , the complainant as PW1 has exhibited the
promissory note as Exhibit-1 and the cheque in question as Exhibit-2 .
During the cross-examination , the defence failed to shake the
credibility of complainant as a witness. PW1 in fact in his cross-
examination has stated that the particulars in the cheque (Exhibit-2)
including the date and the amount were written by the accused in his
presence . The issuance of the cheque was not denied by the accused
but his plea was that that he had issued a blank cheque when he acted
as a guarantor for the car loan taken by the complainant at the time of
11
Case no. 420/13
purchasing a vehicle on a loan from Finance company . PW1 on the
other hand had remained steadfast during his cross-examination that
the amount in figures and words including the date was written by the
accused himself in his presence . In a trial under Section 138 of the Act ,
a presumption will have to be made that every negotiable instrument
was made or drawn for consideration and that it was executed for
discharge of debt or liability once the execution of negotiable
instrument is either proved or admitted. As soon as the complainant
discharges the burden to prove that the instrument, say a note, was
executed by the accused, the rules of presumptions under
Sections118 and 139 of the Act help him shift the burden on the
accused. The presumptions will live, exist and survive and shall end only
when the contrary is proved by the accused, that is, the cheque was not
issued for consideration and in discharge of any debt or liability. A
presumption is not in itself evidence, but only makes a prima facie case
for a party for whose benefit it exists. The complainant as PW1 by
exhibiting the cheque in question as Exhibit-1 coupled with the
admission of the accused that he had issued the cheque in question has
discharged his burden of proving his case which is sufficient to draw the
presumption in favour of the complainant under Section 118 and 139 of
the Negotiable Instrument Act .
25. The accused during the argument of the case has raised the
following points in order to rebut the presumption under Section 118
and 139 of the Negotiable Instrument Act :-
a. The admission of the fact by PW1 (complainant ) that
the accused acted as a guarantor at the time of
availing car loan by the complainant from M/s Mahindra
Finance and the accused while standing as a guarantor
signed on a number of documents on his behalf and the
12
Case no. 420/13
cheque in question was issued as a blank cheque at the
time of acting as a guarantor.
b. The complainant as PW1 has failed to state the number
of instalments and the various dates on which money
was disbursed to the accused as loan except the last
instalment of Rs 80,000/- on 29-10-12 .
c. The complainant has admitted that the loan amount
due from the accused has not been mentioned in the
Income Tax returns /Balace sheet .
d. The complainant have not disclosed the source of his
fund from where he delivered the loan amount to the
accused .
26. In the light of the point raised by the accused in his defence , the
moot question is can it be said that the non-existence of consideration
was so probable that a prudent man would under the circumstances of
the case, act upon the plea that the consideration did not exist. The
accused did not appeared as a witness in support of his defence but he
has relied upon the evidence of the complainant . The accused during
his examination has stated that he delivered a blank cheque to the
complainant while acting as a guarantor of the complainant when a car
loan was availed by the complainant . The signature alongwith other
particulars in the cheque are held to be signature of the accused
because accused did not challenged the promissory note before any
court of law by seeking a declaration that the promissory note and the
cheque was fraudulent and not signed by him . Now if the accused had
actually issued a blank cheque as a guarantor , why would the accused
write a cheque in the name of the complainant and hand over the
cheque to the complainant instead of the Bank . After all , a contract of
sureity or guarantor is a contract between the accused and the Finance
Company /Bank and the accused being an educated man is expected to
know that if he is required to provide any security , it is the Finance
13
Case no. 420/13
Company whose name he is required to write in the cheque in question
so that the Finance Company can use the cheque as a security in case
of default by the loanee . Further , PW1 has asserted the that the
cheque amount in figures and word including the date of the cheque
was written by the accused himself in his presence and the complainant
throughout his examination had remained steadfast that all the
particulars in the cheque was written by the accused . The accused has
taken the plea that he issued a blank cheque and hence , it was the
burden of the accused to prove that the handwriting in the cheque does
not belongs to him . However , the accused did not made any prayer for
sending the cheque in question to the handwriting expert to prove that
the various particulars in the cheque was not written by him . It was the
burden of the accused to prove that the cheque amount in words and
figures was not written in his handwriting . In the absence of opinion of
any handwriting expert , it cannot be said that the handwriting in the
cheque in question does not belongs to the accused . That apart , the
case of the complainant is further strengthened by the promissory note
exhibited by the complainant as Exhibit-1 . The amount in the
promissory note tallies with the amount of the cheque in question . The
accused though denied execution of the promissory note by him did not
took any step to compare his admitted signature in the cheque with the
signature in the promissory note through an handwriting expert in order
to prove that the signature in the promissory note doesnot belongs to
him . It was the burden of the accused to prove that the signature in
the promissory note doesnot belongs to him but the accused did not
took any step to discharge the said burden . In the absence of any
opinion of an handwriting expert , it must be held that the Exhibit-1 was
executed by the accused . Moreover , this Court itself during the hearing
of the case had compared the signature of the accused in the cheque in
question with the signature in the promissory note in exercise of the
power under Section 73 of the Indian Evidence Act and this Court has
found to its prima facie satisfaction that the signature of the accused in
14
Case no. 420/13
the cheque and the signature of the accused in Exhibit-1 are exactly
similar . Hence , it is therefore held that the particulars in the cheque
including the amount was written by the accused and the promissory
note was executed by the complainant . The Supreme Court in
K.Bhaskaran-Versus-Sankaran Vaidhyan Balan reported in AIR
1999 SC 3762 has held that the burden is on the accused to rebut the
presumption but the accused in this case has failed to rebut the
statutory presumption . Moreover , the Hon’ble Supreme Court in
Rangappa-Versus –Sri Mohan reported in (2010) 11 SCC 441 has
held that the very fact that the accused had failed to reply to the
statutory notice under Section 138 of the N.I Act leads to the inference
that the there was merit in the complainants version .In the instant case
, apart from the cheque in question , the complainant has relied upon a
promissory note which he had alleged to be signed by the accused . The
accused despite receipt of notice did not took any steps to file a suit
seeking a declaration that the said promissory note is fraudulent .
Further , the accused has failed to reply to the statutory notice of the
complainant served upon him and hence , the inference that there is no
merit in the accused version is inevitable .
27. Accused has raised the point that as the Complainant has failed
to mention the number of installments and the dates of disbursement
and therefore , the case of the complainant should be disbelieved . The
said plead of the accused appears to be unworthy of consideration as
the case of the complainant rest upon the presumption as provided
under Section 119 and 139 of the Negotiable Instrument Act . The
Complainant is not required to prove his case beyond reasonable doubt
in a proceeding under Section 138 N.I Act at the very first instance . The
admission of the issuance of the cheque in favour of the complainant
by the accused is itself sufficient to draw the presumption that the
cheque in question was issued by the accused in discharge of a legally
enforceable debt and hence Court is not required to go beyond the
15
Case no. 420/13
cheque by trying to find out the dates of payment of installments .
Hence , the Court is not supposed to put the burden upon the
Complainant in a proceeding under Section 138 of the Negotiable
Instrument Act to prove his case beyond reasonable doubt when the
Complainant has been able to draw the presumption under Section 119
and 139 of the Act and the accused has failed to rebut the statutory
presumption under Section 119 and 139 of the Negotiable Instrument
Act . Moreover , the accused did not raised the plea that the
Complainant did not have the financial capability to provide a loan of Rs
3.5 lakhs to the accused .
28. The accused has also raised the plea that as the Complainant has
not shown the loan amount due from the accused in the income-tax
return or the balance-sheet , the case of the Complainant should be
disbelieved and the Complaint should be disbelieved . The said plea of
the accused also appears to be unworthy of consideration as the
Complainant shall be liable to pay penalty if he has violated the Income-
Tax Act and the failure to show the loan amount in the income-tax
returns will not help the accused to wriggle out fom the criminal liability
for dishonor of the cheque as otherwise , the very object of enacting the
provision under Section 138 of the Negotiable Instruments Act will be
defeated . Moreover , the accused has not raised the plea that the
complainant did not have the financial capacity to pay the loan
amount . Further , the source of fund of the complainant is also not
necessary in this case as the accused had failed to shake PW1 during
his cross-examination about his financial capacity to give an amount of
Rs 3.5 Lakhs as loan amount .
29. Hence in view of the discussions as stated above , it is held that
the accused has failed to rebut the presumption that he had issued the
cheque in question in discharge of a legally enforceable debt and that
therefore , it is held that the accused had issued the cheque is
16
Case no. 420/13
discharge of a legally enforceable debt to the complainant . Point no.1 is
therefore answered accordingly in affirmative in favour of the
complainant .
30. Point no.2 :- Whether the cheque in question was dishonored due
to insufficiency of fund in the account of the accused ?
31. PW2 ( Shri Sanjay Kumar Chaudhuri ) who is the Branch Manager
has stated that he have brought the relevant documents to the Court
regarding the dishonor of cheque bearing no.233901 of an amount of
Rs 3,50,000/- drawn at State Bank of India. PW2 stated that the cheque
was deposited in the account of Assad Ghalib ( Complainant)
maintained in their Bank on 23-07-13 and after receiving the cheque , it
was sent for clearance to the SBI : Thana Chariali Branch . PW2 stated
that when the said cheque Exhibit-2 was deposited , we have put the
seal of the office but the said cheque was returned for “insufficient
fund” . PW2 exhibited the counter-part of the deposit slip of his bank as
Exhibit-3 . PW2 exhibited the return memo of the said cheque as
Exhibit-4 . PW2 exhibited the statement of account as Exhibit-9 and his
signature as Exhibit-9 (1) . During cross-examination , PW2 stated that
only Rs 7365/- was the balance amount of the complainant . PW2
further stated that on 16-07-13 , an amount of Rs 7295/- got deposited
in the account of the Complainant and on 31-07-13 , the complainant
got interest amounting to Rs 298/- only .
32. Hence , it is quite clear from the evidence of PW2 and the return
memo of the cheque in question that the said cheque was dishonoured
due to “insufficient fund”.
33. The point no.2 is therefore answered in the affirmative in favour
of the complainant .
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Case no. 420/13
34. Point no.3 :- Whether the accused had received the demand
notice issued by the accused ?
35. PW1 in his affidavit-in-chief has stated that after receiving the
intimation about the dishonor of the cheque , he issued a demand
notice to the accused through his lawyer in both the addresses of the
accused . PW1 has exhibited a copy of the demand notice as Exhibit-5
and the postal receipt as Exhibit-6 and 7 . The Acknowledgment due
card was exhibited as Exhibit-8 and 9 and PW1 has stated in his
affidavit that the demand notice was served upon the accused on
10-08-13 . The accused did not cross-examined PW1 about service or
non-service of the demand notice upon him nor the accused has
disputed the date of service of demand notice upon the accused as
mentioned in the evidence in-chief of the complainant . The accused
also did not adduced any evidence about non-service of demand notice
upon the accused . Hence , it is therefore held that the demand notice
was duly served upon the accused on 10-08-13 .
36. Point no.3 is therefore answered accordingly in affirmative in
favour of the complainant .
37. Point no.4 :- Whether the accused has commited the offence
under Section 138 of the Negotiable Instruments Act , 1881 ?
38. The offence under Section 138 of the Negotiable Instrument Act
are complete on satisfaction of certain conditions which are that the
cheque has to be issued on the account maintained by the accused and
the cheque has to be issued in discharge of debt or liability . It is further
provided that the cheque has to be deposited within six months of its
issuance or within its validity and the notice regarding dishonor of the
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cheque for insufficient funds ought to be given within thirty days of the
information regarding the dishonor .
39. In the instant case , it is already held that the cheque was issued
by the accused and that the said cheque was dishonoured due to
“insufficiency of fund” in the two account of the accused .The cheque
was issued on 22-07-13 and it was deposited in the bank of the
complainant by the complainant on 23-07-13 which is within 6 months .
The cheque was dishonoured by the bank and the intimation of the
dishonor of the cheques were received by the complainant on
24-07-13 .The demand notice was issued on 06-08-13which is within
thirty days from the date of intimation of the dishonor .The said notice is
deemed to received by the accused by registered post with A/D on
10-08-13 as mentioned by PW1 in his affidavit .The accused failed to
pay the amount within 15 days of such receipt .The complainant had
thereafter instituted this complaint on 06-09-13 which is within the
stipulated time .
40. However , the accused has failed to raise any probable defense in
his favour .All the ingredients of offence under Section 138 of
Negotiable Instrument Act, 1881 are satisfied in the instant case and
the complainant has satisfied all the requisites for the institution of this
Complaint ; hence it is held that the accused has committed an offence
under Section 138 of the Negotiable Instrument Act .Accordingly ,
accused Shri Pabitra Sharma is convicted under Section 138 of the
Negotiable Instrument Act ,1881 .
41. I have heard the parties on the point of Probation of Offenders’
Act but I am not inclined to extend the benefit of the provisions of
Probation of Offender’s Act, 1958 because the offence committed is in
the nature of an economic offence and the backbone of the nation
depends upon a healthy economy. Moreover , the real intention behind
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Case no. 420/13
the said enactment of the offence is to provide quick remedy to the
payee or the holder of the cheque, and also to ensure a sense of
confidence and assurance to the business community .
42. I have heard the accused on the point of sentence . Accused
prayed for mercy on the ground that he is the only bread earner of the
family .Also heard the accused on the point of awarding compensation .
The case was instituted by the complainant in the year 2013 and almost
three have elapsed since the time of issuance of the three cheques .
The total amount of the cheque is of Rs. 3,50,000/- ( Rupees Three
Lakh fifty thousand ). Considering all aspects , the purpose of justice will
be served if the accused is directed to pay fine only Rs 4,50,000/-
(Rupees Four Lakh fifty thousands ) only .
43. Accused Shri Pabitra Sharma is sentenced to pay an amount of
Rs. 4,50,000/- ( Rupees Four lakhs fifty thousand ) as fine amount and
in default of payment of fine , the accused shall be sentenced to
undergo simple imprisonment for 6 (six ) nonths . Out of the total fine
amount , an amount of Rs 4 ,40,000/- (Rupees Four Lakh fourty
thousand) , if realized , shall be paid to the complinant as
compensation and the remaining Rs 10,000/- (Rupees Ten thousand )
shall be deposited in the account of District Legal Services Authority :
Dibrugarh
44. Furnish a free copy of the Judgment immediately to the convicted accused .
45. The bail bond is extended till expiry of 6 (six) months from today as per Section 437-A Cr.P.C .
46. Given under my hand and seal of this Court on this 21st day of October , 2016 at Dibruagarh .
Addl. CJM,Dibrugarh
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Case no. 420/13
Appendix
Prosecution Witnesses :
PW1 : Md. Asaad Ghalib (Complainant).
PW2 : Sri Sanjay Kr. Choudhury (Branch Manager, Indian Bank)
Defence witness :
None
Prosecution exhibits :
Exhibit1 : Promissory Note.
Exhibit 2 : Cheque bearing No. 233901 dated 22.07.2013.
Exhibit 3 : Deposit Slip.
Exhibit 4 : Return Memo.
Exhibit 5 : Legal Notice.
Exhibit 6 and 7 : Postal receipt.
Exhibit 8 and 9 : Postal Acknowledgment.
Exhibit 9 : Complainant Deposit slip.
Exhibit 9(i) : Statement of Account.
Exhibit 10 : Deposit Receipt.
Exhibit 11 : Relevant Bank Register.
Defence exhibits :
None.
Court witness : None.
Court exhibits : None
Addl. CJM, Dibrugarh
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