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IN THE HIGH COURT OF GAUHATI
Rumi Kumari Phukan, J.
Sanjay Kr. Singh - Appellants
Vs.
State of Assam and Ors. - Respondents
Criminal Appeal No. 177 of 2018
Decided On : 20-06-2019
Negotiable Instruments Act – Sections 20, 87 118 138 139 – Code of Criminal Procedure – Section 313 – Appeal Against Acquittal under N.I. Act – The present appeal has been preferred against the order of acquittal passed by the learned Additional Chief Judicial Magistrate, in N.I. Case under Section 138 of N.I. Act – Learned counsel for the appellant has led this Court through the evidence of the complainant as well as the other witnesses on record including the cheque in question and has submitted that the learned trial court has failed to appreciate the entire evidence in proper perspective of fact as well as law – It has been contended that as against the own admission by the accused/respondent about taking of loan from the complainant of Rs. 1 lakh, and also issuance of blank cheque to the complainant, it was incumbent on the part of the court to appreciate as to how far the accused/respondent has rebut the case of the complainant where it was admitted that cheque was issued by him and on the contrary he failed to prove the amount of loan he had taken from the complainant was returned – Accordingly, it has been submitted that there is statutory presumption in favour of the complainant/drawer whereas the court has diverted the attention towards other discrepancies in the evidence of the complainant, which need not be over emphasized in a case under Section 138 N.I. Act – Held, In the present case, it is to be noted that the accused/respondent has not disputed his signature in the cheque and also taking of certain amount of loan, but no rebuttal evidence has been adduced to rebut the legal presumption and has simply denied the case of the complainant – The learned trial court has not raised legal presumption as per the law laid down by the Honble Apex Court in Hiten P. Dalal vs. Bratindranath Benerjee and Bir Singh vs. Mukesh Kumar cases – It appears that the learned trial court accepted the version of the respondent, which is actually not proved by way of any evidence but has chosen to discard the evidence of the complainant, which is specifically brought on record – Peculiarly, the respondent nowhere denied any such transaction between the parties and also about partnership between them as has been stated by the complainant and his witnesses – No person is supposed to issue a blank cheque to another unless any liability – On a bare perusal of the cheque in question, it is found that it was written by one hand, that is, by the respondent and the entire cheque was written in figures and numbers (Rs. 11,00,000.00) and it remains no any scope to hold that the cheque was issued for Rs. 1 lakh and it was manipulated to Rs. 11 lakh – Obviously, the respondent has failed to rebut the presumption under Section 138 of N.I. Act. and the learned trial court has arrived at the findings on different context which is beyond the purview of the special enactment and hence, not sustainable – Taking note of the above, the impugned order of acquittal passed by the learned trial court is hereby set aside – The accused/respondent is convicted under Section 138 of N.I. Act and sentenced him to pay fine of Rs. 15,00,000.00 (Rupees fifteen lakh) only, in default S.I. for 1 (one) year – Order Accordingly
JUDGMENT :
Rumi Kumari Phukan, J.
1. Heard Mr. M.U. Mahmud, learned counsel for the appellant. None appears for respondent No. 2 although the name of the counsel has been shown in the cause list. I have also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State respondent No. 1, who is a formal party in the present case.
2. The present appeal has been preferred against the order of acquittal passed by the learned Additional Chief Judicial Magistrate, Barpeta in N.I. Case No. 14/15, under Section 138 of N.I. Act.
3. The brief fact of the case is that the appellant as complainant had filed the aforesaid case before the court below with the assertion that he had some business transaction with the accused/respondent and out of such business transaction, the accused/respondent issued cheque bearing No. 061130 dated 18.10.2014 for Rs. 11 lakh to the appellant to discharge his liability. Accordingly, the complainant/appellant deposited the cheque to the concerned SBI, Mathgharia Branch for encashment on two occasions on 18.10.2014 and 20.04.2014 and on both occasions, the cheque was returned for insufficient fund. After intimating the matter to the accused/respondent by issuing legal notice, apart from verbal intimation, the complainant finally filed the aforesaid case for non-response by the respondent towards such payment. The accused turned on before the court, contested the case, and denied the charge that was framed under Section 138 of N.I. Act and claimed to be tried.
4. The complainant examined four witnesses including himself to substantiate his case and defence examined none. In the course of cross-examination as well as the statement of the accused recorded under Section 313 Cr.P.C., the accused took the plea that he has only taken Rs. 1 lakh as loan from the complainant and has issued the blank cheque to him as a security for Rs. 11 lakh. He also denied the service of notice upon him. The learned trial court, on examination of the witnesses and the documents annexed, came to the findings that although the complainant has proved the service of notice upon the respondent and also the fact that the cheque issued by the respondent has been dishonoured by the concerned bank, came to a finding that the evidence of complainant as well as the evidence of PW2 is not trustworthy as they have given different versions regarding the transaction made between the parties. It was noted that in his complaint petition, the complainant has simply stated that cheque was issued against the business transaction whereas in his evidence he has stated that the complainant has deposited certain amount of money at different time in the account of the accused/respondent as well as some cash in the hands of the accused/respondent and against the debt and liability, the accused/respondent had issued the cheque. The trial court after discussing the evidence had held that although there is legal presumption in favour of the holder of the cheque, but the same will come into operation only when the evidence of prosecution is cogent regarding the debt or liability and issuance of cheque. It was held that the evidence of prosecution side is not cogent and convincing to bring forth the fact that the accused issued the cheque in favour of the complainant in discharge of a legally enforceable debt or liability and the court was of the opinion that the case of the prosecution is full of serious infirmities and lacuna and it is not a fit case to draw presumption in favour of the holder of the cheque and dismissed the case of the complainant vide impugned order dated 16.08.2017.
5. The present appeal has been preferred challenging the legality and validity of the aforesaid findings.
6. Learned counsel for the appellant has led this Court through the evidence of the complainant as well as the other witnesses on record including the cheque in question and has submitted that the learned trial court has failed to appreciate the entire evidence in proper
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