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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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

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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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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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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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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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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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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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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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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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(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

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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

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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

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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

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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

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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

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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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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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Case no. 420/13

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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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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