IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS ...kamrupjudiciary.gov.in/dec 19/dj dec 2019/09.12.2019 JMFC 6 cr 1873c... · This is a case instituted under Section 138 of the

C.R. Case No.1873c of 2016

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IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS, KAMRUP

(METRO): GUWAHATI


U/S 138 of Negotiable Instruments Act, 1881

Shri Pramod Talukdar

S/o- Late Samindra Talukdar

R/o – House No.221, Opposite Dims Hospital,

Mother Teresa Road, Geeta Nagar,

P.S. - Noonmati, P.O. - Guwahati -781020,

District- Kamrup (Metro), Assam…………………………………………..Complainant

-Vs-

Shri Purab Hazarika

C/o- Maa Bharati Medicos

R/o- Sarojini Apartment, Flat No. A-1,

First Floor, Geetanagar, Near Geetanagar Petrol Pump,

P.O. & P.S. - Noonmati, Guwahati -781020

District- Kamrup (Metro), Assam ………………………………………….Accused

Present: Dimpy Naroh, AJS

Judicial Magistrate First Class, Kamrup (Metro), Guwahati

ADVOCATES PRESENT:

For the Complainant-Mr. T. Hussain, Ms. D. Kashyap………………Learned Advocate

For the Accused- Mr. G. Saikia, Mr. D. Baruah, Ms. Minakhi

Sonowal………………………………………………………………………………Learned Advocate

Evidence recorded on: 16.05.2018

Argument heard on: 25.11.2019

Judgment delivered on: 09.12.2019


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JUDGMENT

1. This is a case instituted under Section 138 of the Negotiable Instruments Act,

1881 (In short ‘the N.I. Act’) alleging that the accused Shri Purab Hazarika had

issued one cheque in favor of the complainant Shri Pramod Talukdar which was

dishonored due to the reason “Insufficient Fund” in the account of the accused.

2. The brief facts giving rise to the institution of this complaint case is that due to

their good friendship and faith, the accused had asked for an amount of

Rs.50,000/- (Rupees Fifty Thousand) only as personal financial help from the

complainant which the complainant had advanced to the accused on 02.02.2016.

Thereafter the accused issued one cheque bearing No. 497719, dated 03.05.2016

drawn on State Bank of India, Binova Nagar Branch, Guwahati for an amount of

Rs.50,000/- to the complainant towards the repayment of the aforesaid loan.

3. The complainant had deposited the aforesaid cheque with his banker State Bank

of India, Geeta Nagar Branch, Guwahati, Assam, for clearance on 03.05.2016, but

the cheque was returned unpaid with return memo dated 05.05.2016 for the

reason “Insufficient Fund”.

4. The complainant then send one legal demand notice dated 18.05.2016 under

Section 138 of the N.I. Act, 1881 to the accused by registered post with A/D Card

through his counsel and the same was received by the accused on 20.05.2016.

But the accused failed to make the payment within the stipulated period of 15 days

and as such the complainant lodged the case against the accused under Section

138 of the N.I. Act, 1881.

5. The accused was called upon to enter trial and upon his appearance the

particulars of offence under Section 138 of the N.I. Act, 1881 was explained to him

to which he pleaded not guilty and claimed to be tried.

6. The complainant examined himself as PW 1 in support of his case but the

accused failed to examine himself as DW 1 in his defense.

7. The accused in his statement under Section 313 of the Cr.P.C. has denied the

issuance of cheque to the complainant. The accused further stated that he had not

received the demand notice.


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8. The accused had taken a defense that, although the cheque belongs to him

wherein he had entered the amount and put his signature but he had not issued

the cheque in question to the complainant. It was also stated that as the accused

had not issued the cheque to the complainant, as such, he has no legal liability to

pay the cheque amount to him; as the same is not a legally enforceable debt.

Accordingly the learned counsel for the accused submitted that the complainant is

not entitled to get payment as sought for and the accused is also not liable to pay

the amount.

9. I have heard the learned counsel appearing for the complainant and the

accused. Upon hearing and on perusal of case record I have framed the following

points for determination in order to arrive at a definite finding as regards the

dispute in this case:-

10. POINTS FOR DETERMINATION:

(i) Whether the accused issued the cheque bearing no. 497719, dated 03.05.2016,

for Rs 50,000/- (Rupees Fifty Thousand) only for the discharge of any legally

enforceable debt or liability towards the complainant?

(ii) Whether the cheque was dishonored for the reason “Insufficient Fund” in the

account of the accused?

(iii) Whether the accused received the demand notice issued by the complainant

regarding the dishonor of the cheque?

(iv) Whether the accused has committed the offence under Section 138 of the

Negotiable Instruments Act, 1881?

11. I have carefully gone through the case record and perused the entire evidence

on record both oral and documentary. I have heard the arguments advanced and

the submissions made by the learned counsel on behalf of the complainant and

the learned counsel for the accused. It is submitted by the learned counsel for the

complainant that the complainant has been able to prove all the ingredients of

offence under Section 138 of the N.I. Act beyond reasonable doubts by way of

testimony of PW 1 which stood corroborated by the documentary evidence in the

form of documents Ext. 1 to Ext. 5. It is submitted that the complainant is a holder


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of cheque in due course and the accused had issued him the cheque. The

complainant further submits that the accused had taken vague, false and baseless

defense that he had not issued the said cheque to the complainant. It is further

submitted by him that the accused has miserably failed to rebut the presumption

arising in favor of the complainant in terms of Section 118 and 139 of the N.I. Act,

in as much as testimony of PW 1, during his cross-examination, has remained

uncontroverted in material particulars. He submits that the accused has not denied

his signature on the cheque in question.

12. DISCUSSIONS, DECISION AND REASONS FOR DECISION:

13. Point No. (i)- Whether the accused issued the cheque bearing no. 497719,

dated 03.05.2016, for Rs 50,000/- (Rupees Fifty Thousand) only for the discharge

of any legally enforceable debt or liability towards the complainant?

14. The complainant as PW 1 has reiterated the same facts as stated in his

complaint petition. The accused had filled up the cheque along with the contents

and figure. He further deposed that the accused in order to discharge his legally

enforceable debt, issued the cheque bearing no. 497719, dated 03.05.2016, for

Rs.50,000/- only. The PW 1 exhibited the cheque as Ext. 1 and the signature of

the accused as Ext. 1(i). The accused cross-examined the PW 1 in this regard. The

PW 1 deposed that, the accused had borrowed Rs.50,000/- from him for his son’s

admission. The accused issued the cheque in the month of March, 2016. He does

not remember exactly. In his cross-examination the PW 1 denied the suggestion

that he had decided to sell his vehicle to the accused. He denied that the accused

did not have any legal debt or liability. He further denied that the accused gave

him a post-dated blank cheque. PW 1 had also denied the suggestion that he had

filled up the cheque.

15. Now the accused side submitted that since the complainant side has not been

able to adduce any evidence or produce any document to show that the accused

is liable to pay an amount of Rs.50,000/- to the complainant or has issued the

cheque in discharge of any debt or liability so the accused should be acquitted.

16. The accused has not denied his signature on the cheque. But he has denied

issuing the cheque to the complainant. The accused has also denied filling up the


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contents of the cheque apart from the amount and his signature. But apart from

putting suggestions to the complainant the accused failed to produce anything to

show that he had not filled up the other contents of the cheque. Although the

accused did not admit that he had filled up the other contents of the cheque, it is

not mandatory that the body of the cheque ought to be written by the signatory

to the cheque. A cheque can be filled by anybody if it is signed by the account

holder as held by a number of decisions of the Hon’ble Apex Court and the Hon’ble

High Courts.

17. Although the accused has denied issuing the cheque to the complainant but

he has failed to show how his cheque fell in the hands of the complainant. The

accused has not adduced any evidence or produced any documents to show that

he had not issued the cheque to the complainant. He has also not filed any

complaint before the law enforcing authorities for the misuse of his cheque by the

complainant. He did not issue any written notice to the complainant to return his

cheque. Bare averments do not aid the case of the accused as he had not lead

cogent evidence supporting them. What has to be seen is the existence of the

liability towards the complainant when the cheque in question is presented to the

bank. It is, thus clear, that for whatever reason if a cheque is drawn on an account

maintained by a drawer with its bank in favor of any person for the discharge of

any debt or other liability the ingredients of offence under Section 138 of the N.I.

Act gets attracted in case the cheque is returned dishonored and the cheque

amount remains unpaid within the statutory period, despite service of notice. The

defense above, therefore, of the accused is no longer relevant in the given facts

and circumstances of the present case as the accused has been unable to establish

the non-existence of any liability as on date of presentment of cheque by the

complainant. The accused was unable to elicit anything material from the

complainant during his cross-examination. Rather, the complainant held strongly

and consistently to his contention making his story more credible vis a vis that of

the accused. Further the accused has not brought on record even a single

document which could show that the cheque was not given to the complainant for

the purpose as alleged by the complainant.


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18. It is to be noted that the accused has not examined himself as DW 1 in the

present case to substantiate his claim although in his statement of defense u/s 313

Cr.P.C. he had expressed his willingness to examine himself along with Shri Biswajit

Gogoi and Shri Pabitra Changmai. Mere suggestion to the complainant that he had

filled up the cheque and that accused did not have any legal debt or liability

towards him or mere explanation given in the statement of accused under Section

313 of Cr.P.C. that the cheque was not issued by him to the complainant does not

amount to proof. Since in the instant case, the accused has failed to lead any

convincing evidence to aid him in discharge of his onus, the presumption of law

operates in favor of existence of debt or liability. I am of the opinion that the

defense set up by the accused is neither definitive nor consistent with his

innocence. It was the sole burden and duty of the accused to prove absence of

liability by raising a probable defense. However, he has failed to discharge his

onus. Except for making bare averments, accused has not led any cogent evidence

which could be termed as a probable defense.

19. The N.I. Act raises two presumptions in favor of the holder of the cheque i.e.

complainant in the present case; firstly, in regard to the passing of consideration

as contained in Section 118 (a) 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.

20. Section 118 of the N.I. Act provides:-

“Presumptions as to negotiable instruments: Until the contrary is proved, the

following presumptions shall be made: (a) of consideration- that every negotiable

instrument was made or drawn for consideration, and that every such instrument,

when it has been accepted, indorsed, negotiated or transferred was accepted,

indorsed, negotiated or transferred for consideration.”

21. Section 139 of the N.I. Act further provides as follows:-

“Presumption in favor of holder- it shall be presumed, unless the contrary is

proved, that the holder of a cheque received the cheque of the nature referred to

in Section 138 for the discharge in whole or in part, of any debt or other liability.”


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22. For the offence under Section 138 of the Act, the presumptions under Section

118 (a) and 139 have to be compulsorily raised as soon as execution of cheque by

accused is admitted or proved by the complainant and thereafter burden is shifted

to accused to prove otherwise. These presumptions shall be rebutted 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 etc. A presumption is not in

itself evidence but only makes a prima facie case for a party for whose benefit it

exists. Presumptions both under Section 118 and 139 are rebuttable in nature.

Both Section 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. Same

was held by the Hon’ble Supreme Court of India in Hiten P. Dalal v.

Bratindranath Banerjee [(2001) 6 SCC 16)]. Following the judgment of the

Hon’ble Supreme Court in State of Madras vs. Vaidyanatha Iyer AIR 1958

SC 61, it was held by the Hon’ble Supreme Court that it was obligatory on the

Court to raise this presumption.

23. A meaningful reading of the provisions of the N.I. Act, 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. Initially, the complainant

has to prove the existence of debt and other liabilities and thereafter the burden

shifts upon the accused to prove that the cheque was not issued towards discharge

of a lawful debt but was issued by way of security or any other reason on account

of some business transaction or was obtained unlawfully.

24. In the present case, the accused has admitted his signature on the cheque in

question, in his statement under Section 313 Cr.P.C. Reference can be made to

judgment of Hon’ble Apex Court in Rangappa vs. Sri Mohan, AIR 2010 SC

1898, that,

6. “Once the cheque relates to the account of the accused and he accepts

and admits the signatures on the said cheque, then initial presumption

as contemplated under Section 139 of the Negotiable Instruments Act

has to be raised by the Court in favour of the complainant.”


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25. Also in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999 (4)

RCR (Criminal) 309, it has been held by the Hon’ble Supreme Court as under:

“As the signature in the cheque is admitted to be that of the accused, the

presumption envisaged in Section 118 of the Act can legally be inferred

that the cheque was made or drawn for consideration on the date which

the cheque bears. Section 139 of the Act enjoins on the Court to presume

that the holder of the cheque received it for the discharge of any debt or

liability.”

26. In my considered opinion, it is now well settled that in case the signature of

the accused on the cheque in question is proved, there arises a presumption in

terms of Sections 118(a) and 139 of the N.I. Act to the effect that the same was

issued for valid consideration and in discharge of legally enforceable debt or

liability. The accused has contended that apart from his signature and amount, the

complainant has filled up his cheque but he failed to produce any materials on

record to show that he has taken any action against the complainant after coming

to know that the complainant has misused his cheque. As such, Ext. 1 has already

proved the liability of the accused and the accused failed to rebut the same. What

is material is the signature of the drawer or maker and not the writing on the

instrument. Hence, question of body writing/other contents except signature is

almost of no significance. The accused cannot be permitted to plead that since

cheque was not filled in by him, the cheque was not issued for consideration,

unless he is able to prove otherwise. Also the plea of the accused that there is no

existing debt or liability is of no help in view of admitted signature of the accused

on the cheque. The defense could not rebut the presumption cast upon him. So in

my opinion it can be presumed that the cheque was issued by the accused to the

complainant to discharge his liability towards the complainant. Hence from the

above discussions it is held that the accused issued the cheque for the discharge

of a legally enforceable debt or liability towards the complainant.

27. Point No. (ii)- Whether the cheque was dishonored for the reason “Insufficient

Fund” in the account of the accused?


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28. The PW 1 exhibited the cheque return memo dated 05.05.2016 as Ext. 2

wherein the reason for dishonor was mentioned as “Insufficient Fund”. The

accused in his statement under Section 313 of Cr.P.C. stated that he does not have

any knowledge about the dishonor of the aforesaid cheque due to insufficient

funds.

29. Now in my opinion when a cheque is accepted it may be presumed that the

money will be available when the cheque is presented before the bank for

encashment. So considering the exhibited return memo and in absence of anything

from the accused side in his defense it is held that the cheque was dishonored for

the reason “Insufficient Fund” in the account of the accused.

30. Point No. (iii)- Whether the accused received the demand notice issued by the

complainant regarding the dishonor of the cheque?

31. In relation to the demand notice, the accused stated that he did not receive

the demand notice. However the PW 1 exhibited the legal demand notice dated

18.05.2016 which was marked as Ext. 3 and the postal receipt and the delivery

report issued by the postal department was exhibited as Ext. 4 and Ext. 5. The PW

1 deposed that the demand notice was received by the accused on 20.05.2016 as

per the delivery report.

32. Although the accused in his statement u/s 313 of Cr.P.C. stated that he had

not received the demand notice, but he has not led any evidence in support of his

claim. Though service of demand notice is denied by the accused, however,

address mentioned in the legal notice is the same as the address mentioned by

the accused during the proceedings. Therefore, a presumption of due service is

drawn under Section 27 of General Clauses Act which provides that where notice

is sent to the correct address, the same shall be presumed to have been duly

served. Moreover, on perusal of the above exhibits there is nothing on record to

doubt or disbelieve the genuineness of the above exhibits. In view of the ratio as

laid down in C.C. Alavi Haji (2007 Crl. L.J. 3214) the accused cannot take any

advantage of the plea that he has not received the legal demand notice. Thus the


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demand notice dated 18.05.2016 was duly served upon the accused on

20.05.2016.

33. Point No. (iv) Whether the accused has committed the offence under Section

138 of the Negotiable Instruments Act, 1881?

34. The offence under Section 138 of the N.I. Act is complete on the satisfaction

of certain conditions which are that the cheque has to be issued on the account

maintained by the accused and that the cheque has to be issued for the discharge

of a debt or liability. It is further provided that the said cheque has to be deposited

within three months of its issuance or within its validity and that the notice

regarding the dishonor of the cheque ought to be given within 30 days of the

receipt of information regarding the dishonor.

35. In the instant case at hand it is already held that the cheque was issued by

the accused in the account maintained by him and that the said cheque was

dishonored due to the reason “Insufficient Fund” in the account of the accused.

The cheque No.497719 was issued in the instant case on 03.05.2016 as it appeared

from Ext. 1 and was presented for encashment before the banker of the

complainant on 03.05.2016 and the cheque was dishonored on 05.05.2016. The

demand notice was issued by the complainant on 18.05.2016 which is within 30

days from the receipt of information of dishonor. The notice was received by the

accused on 20.05.2016 and the complainant lodged this case on 16.06.2016 which

is within 30 days after the lapse of 15 days from the date of receipt of demand

notice; hence the complaint is lodged within the period of limitation.

36. In view of the above discussion it is held that all the ingredients of the offence

under Section 138 of the N.I. Act, 1881 are satisfied in the instant case and further

the complainant has satisfied all the requisites for the institution of the complaint;

hence it is held that the accused Shri Purab Hazarika has committed the offence

under Section 138 of the N.I. Act, 1881.


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37. In view of the discussions made above and the decisions reached in the

foregoing points for determination it is held that the accused has committed

offence under Section 138 of the N.I. Act, 1881 and as such the accused is

convicted under Section 138 of the N.I. Act, 1881.

38. I have heard the parties. I am not inclined to extend the benefit of the

provisions of the Probation of Offenders Act, 1958, because the offence committed

is in the nature of an economic offence and the backbone of the nation depends

on a healthy economy. Moreover the real intention behind the enactment of the

said law is to provide quick remedy to the payee or the holder of the cheque, and

also to instil a sense of confidence and assurance to the business community.

39. Considering the nature of the offence and the other attending facts and

circumstances of this case, the accused is convicted of the offence under Section

138 of the N.I. Act, 1881 and he is sentenced to undergo simple imprisonment for

4 (four) months and further to pay compensation of Rs.1,00,000/- (Rupees One

Lakh) only to the complainant as the total cheque amount is Rs.50,000/-(Rupees

Fifty Thousand) only and more than 3 years 7 months have elapsed from the date

of issuance of the cheque. It is further directed that the convict shall undergo

simple imprisonment for another 1 (one) month in default of the payment of

compensation.

40. Furnish a free copy of the judgment to the convict immediately. The case is

disposed of on contest.

41. Given under my hand and seal of this Court today the 9th of December, 2019

at Kamrup (Metro), Guwahati.

(Dimpy Naroh)

Judicial Magistrate First Class

Kamrup (M), Guwahati


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APPENDIX

(A) Complainant’s Exhibits:

1. EXT-1: Cheque bearing No.497719 dated 03.05.

2016

2. EXT-1(i). Signature of the accused

3. EXT-2: Return Memo dated 05.05.2016.

4. EXT-3: Legal Notice dated 18.05.2016

5. EXT-3(i): Signature of the advocate.

6. EXT-4: Postal receipt

7. EXT-5: Delivery report of the demand notice dated 20.05.2016

8. EXT-5(i): Signature of the in-charge of customer care.

(B)Defence Exhibits:- NIL

© Witnesses Exhibits:-NIL

(D)Complainant’s Witness:-

PW 1- Shri Pramod Talukdar

(E) Defence Witness:-NIL

(F) Court Witness:-NIL (Dimpy Naroh)




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C. R. Case No.1873c of 2016

ORDER

09/12/2019 Complainant Shri Pramod Talukdar is absent. Accused Shri Purab

Hazarika is present and vide petition No.3310/19 has prayed to recall the NBW/A

issued against him. Heard. Perused.

On perusal it appears that on 06.12.2019 the instant case was fixed for judgment

but as the accused was absent NBW/A was issued against him. However as the

accused is present today, the petition is allowed.

Judgment is pronounced and delivered in the open Court. Judgment pronounced

is tagged with the case record.

In the result, the complainant has been able to prove that the accused person is

guilty of committing offence punishable u/s 138 of the Negotiable Instruments Act,

1881.

Considering the nature of the offence and the other attending facts and

circumstances of this case, the accused is convicted of the offence under Section

138 of the NI Act, 1881 and he is sentenced to undergo simple imprisonment for

4 (four) months and further to pay compensation of Rs.1,00,000/- (Rupees One

Lakh) only to the complainant as the total cheque amount is Rs.50,000/-(Rupees

Fifty Thousand) only and more than 3 years 7 months have elapsed from the date

of issuance of the cheque. It is further directed that the convict shall undergo

simple imprisonment for another 1 (one) month in default of the payment of

compensation. Furnish a free copy of the judgment to the convict immediately.

The case is disposed of on contest.

(Dimpy Naroh)




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Documents

IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS ...kamrupjudiciary.gov.in/dec 19/dj dec 2019/09.12.2019 JMFC 6 cr 1873c... · This is a case instituted under Section 138 of the