C.R. Case No.1873c of 2016
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IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS, KAMRUP
(METRO): GUWAHATI
C.R. Case No.1873c of 2016
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)
Judicial Magistrate First Class
Kamrup (M), Guwahati
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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)
Judicial Magistrate First Class
Kamrup (M), Guwahati
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