POINT OF LAW:DISHONOUR OF CHEQUE – ACQUITTAL UNDER - under Section 139 of the N.I. Act, there is a presumption that the holder of the cheque received it for the discharge of debt or liability, but the existence of debt is not the subject-matter of such legal presumption.

Headnote:
Criminal Procedure Code, 1973 - Section 378 - Negotiable Instrument Act - Section 138- dishonour of cheque - reappraisal of evidence – Claim ofc compensation - Whether the accused had any lawful debt or liability for payment of any amount of money to the complainant - Whether the accused issued any cheque to the complainant to discharge his lawful liability or debt - Whether the accused is liable for dishonour of cheque – So complainant issued a demand notice through Advocate notifying the accused to make payment of the said amount within 15 days from the date of receipt of the notice. The notice was duly served upon the accused but inspite of receipt of the notice the accused had failed to make payment within the stipulated period –
Finding of the Court; In instant case, as stated earlier, there is no denying the fact that admittedly accused/ respondent issued the cheque without the name of the payee, which the complainant/ appellant himself filled up and presented in bank for encashment - Evidence shows that cheque amount was payable in terms of a written contingent agreement, copy of which is, of course, not exhibited, in the event of performance of the function by the artists through Enterprise, Mumbai, which enterprise was not even imploded as accused/ respondent or its representative examined by either of the parties in the case. The complainant has not event established that he was the authorized signatory of the said enterprise to receive the cheque on its behalf and that the accused/ respondent No.1, being the President of the said unregistered N.G.O namely, ‘Digboloy’ was personally liable under any debt or liability towards the complainant/ appellant on the date of issue of cheque in question wherein he himself admittedly entered his name in different ink - Therefore in backdrop of facts and circumstances, that emerge on reappraisal of evidence, oral and documentary, this Court sees no reason to reverse the finding of acquittal of accused/ respondent offence subscribing substituted views expressed by the Learned Trial Court –
Result: Appeal stands disposed of

JUDGMENT & ORDER :

Heard Mr. S. Banik, learned counsel for the appellant. Also heard Mr. P. Bora, learned counsel for the respondent No.1 and Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam for the respondent No.2.

2. This appeal under Section 378(4) of the Criminal Procedure Code, 1973 (‘Cr.P.C.’ for short) is preferred against the judgment and order, dated 06.04.2010, passed by the learned Chief Judicial Magistrate (‘C.J.M.’ for short), Tinsukia in C.R. Case No. 1581/2006 dismissing the complaint and acquitting the accused/ respondent No.1 herein under Section 138 of the Negotiable Instrument Act, (‘N.I. Act’ for Short).

3. Leave granted vide order, dated 06.08.2010, passed in Crl. Leave Petn. No. 22/2010.

4. The complainant / appellant’s case, precisely, is that he lodged a complaint with the court of Learned C.J.M., Tinsukia, on 01.08.2006, alleging interalia, that he was engaged by accused Dr. Hiren Gogoi for a musical show at Dibrugarh. Accordingly, he had agreed for the said work and made all arrangements for organizing the show. As per the terms of the said agreement, towards discharge of liability of making part payment of the works the accused issued a State Bank of India Account Payee Cheque bearing No.216867 dated 25.04.2006 in his name for an amount of Rs.1,15,000/-. While the complainant presented the cheque on 11.05.2006 in his account No.01190013311 for collection through U.B.I., Tinsukia Branch, the Bank returned the cheque without honouring with an endorsement showing reasons of “Payment stopped by the drawer” and “insufficient of fund” in the account of the accused. So, the complainant issued a demand notice dated 14.06.2006 through Advocate Bhaskar Dutta notifying the accused to make payment of the said amount within 15 days from the date of receipt of the notice. The notice was duly served upon the accused on 17.06.2006, but inspite of receipt of the notice the accused had failed to make payment within the stipulated period. The accused sent his reply denying his liability and asked the complainant to return the said cheque to the accused. The complainant/ appellant contends that as the accused/ respondent No.1 issued the cheque, which was dishonoured, he committed an offence under Section 138 of the N.I. Act.

5. After receipt of the said complaint and going through the statement of the complainant on affidavit and the relevant documents, the learned trial court took cognizance of the offence under Section 138 N.I. Act. On appearance of the accused the offence under Section 138 N.I. Act was explained to him to which he pleaded not guilty and claimed to be tried. The complainant examined as many as three witnesses whereas the defence examined two witnesses in defence. The defence plea is that he had no liability to pay any amount to the complainant. He issued the cheque on force and threat of the complainant/ appellant herein.

6. In order to decide the case, the Learned Trial Court took up the following 5(Five) points

(1) Whether the accused had any lawful debt or liability for payment of any amount of money to the complainant?

(2) Whether the accused issued any cheque to the complainant to discharge his lawful liability or debt?

(3) Whether the accused is liable for dishonour of cheque?

(4) Whether the accused committed any offence under N.I. Act?

(5) Whether the complainant is entitled for any compensation from the accused?

7. After threadbare analysis of evidence adduced by both sides, the Learned Trial Court held the accused/ respondent No.1 not guilty of the offence and accordingly acquitted him by the impugned judgment and order.

8. I have given due consideration to the submissions made by both sides and perused record including the impugned judgment and order.

9. It needs to be mentioned that Section 138 of the N.I. Act has three ingredients, viz.:

(i) that there was a legally enforceable debt; (ii) that the cheque was drawn from the account of the drawer for discharge, in whole or in part, of any debt

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2021 Supreme(Gau) 55

IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)AJIT BORTHAKUR, J.NITUL KALITA, S/O SHRI BHUBAN CH. KALITA - AppellantVs.DR. HIREN GOGOI and ANR, S/O LATE KESHAB CH. GOGOI - RespondentCrl.A./91 of 2010Decided On : 01-04-2021

POINT OF LAW:DISHONOUR OF CHEQUE – ACQUITTAL UNDER - under Section 139 of the N.I. Act, there is a presumption that the holder of the cheque received it for the discharge of debt or liability, but the existence of debt is not the subject-matter of such legal presumption.

IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
AJIT BORTHAKUR, J.
NITUL KALITA, S/O SHRI BHUBAN CH. KALITA - Appellant
Vs.
DR. HIREN GOGOI and ANR, S/O LATE KESHAB CH. GOGOI - Respondent
Crl.A./91 of 2010
Decided On : 01-04-2021