JUDGMENT :

CHAITALI CHATTERJEE DAS, J.

1. This criminal appeal has been filed against the judgement and order of acquittal dated 19.12.2013 passed by the Learned Judicial Magistrate, Tehatta, Nadia in connection with complaint case no. 386C/2012 under Section 138 of the Negotiable Instruments Act. 1881.

Brief fact of the case

2. The case of the appellant in short is that a complaint was lodged by the present appellant against the present respondent before the Learned Court of ACJM, Tehatta, Nadia to proceed against him under Section 138/142 of the Negotiable Instruments Act on 14.8.12 alleging dishonour of cheque which was deposited by the complainant as issued by the present respondent on 26.6.12 of Rs. 1,00,000/- and Rs 2,00,000/-.

3. It is the case of the present appellant that there was a good friendship relation between the complainant/ the appellant and the accused person and at the request of the accused person to give him Rs 3,00,000/- as a loan for his personal necessity on good faith the present appellant agreed to give the amount as loan and he paid the said amount of Rs. 3,00,000/- in presence of witness no 1 and 2. The respondent /accused person assured to re-pay the said amount within 3 months but after expiry of the said period despite the demand made by the complainant, the accused delayed the re-payment on various pretext. Lastly on 25.6.12 the accused came to the house of the complainant and gave two cheques bearing no. 294127 dated 26.6.12 of Rs.1,00,000/- and 294126 dated 26.6.12 of Rs. 2,00,000/- of HDFC Bank Limited , to the complainant. The complainant /appellant deposited both these cheques on 26.6.12 at State Bank of India Krishnanagar (Gopinathpur) Branch. But the bank intimated that those cheques were dishonoured due to insufficient fund and to that extent the bank issued a certificate to the complainant. After that on 20.7.21012 the complainant sent a demand notice to the accused person through registered post with A/D by his advocate which was returned with an endorsement “7 days absent” on 7.8.12. The said person did not repay the amount till filing of the complaint accordingly the case was initiated. The Learned Court of ACJM, Tehatta passed the order of issuance of summon upon the accused person who surrendered before the court and obtained bail. On 26.9.12 the accused person was examined under Section 251 of the Code of Criminal Procedure and the substance of accusation was read over and explained to the accused person who pleaded not guilty and claimed to be tried. After that the evidence on behalf of the complainant started. On completion of the examination the complainant and one Swapan Kumar Ranu the accused person /petitioner was examined under Section 313 of the Code of Criminal Procedure and one Ananta Mondal also deposed as D.W. 2. After hearing the argument of both the Learned Advocates and considering the materials of record the Learned Judicial Magistrate passed the order of acquittal. Being aggrieved thereby this appeal has been filed.

Submissions

4. The Learned Advocate appearing on behalf of the appellant submitted that two cheques were issued by the respondent, the execution of the said cheque was never denied and on 26.6. 2012 these two cheques were dishonoured. The notice of demand was issued within the statutory period and therefore the presumption under Section 139 of N.I. Act was initially discharged. It is settled law that the presumption under this provision is rebuttable but such rebuttal is to be made while giving reply to the demand notice .In this case the notice was not received and returned as ‘7 days absent as the accused intentionally avoided the service . The accused person never expressed their intention to repay the loan and there was no prima facie rebuttal even at the time of adducing evidence in order to show that the cheques were not issued in discharge of the existing debts or liabilities. The Learned Advocate relied upon the decision reported in Hiten P. Dalal vs