The legal point established is that the existence of a time-barred debt should be determined based on evidence during the trial, and the burden of proof lies with the accused to establish the non-existence of debt or liability.

JUDGMENT :

Heard Mr B M Choudhury, learned counsel for the petitioner and Mr J I Borbhuiya, learned counsel for the respondent No. 2. Also heard Mr B Sarma, learned Additional Public Prosecutor appearing on behalf of the State of Assam/respondent No. 1.

2. This is an application filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973, read with Section 397 of CrPC, 1973, against the impugned order dated 05.10.2021, passed by the learned Additional CJM, Kamrup (Metro) in CR Case No. 1410c/2021, whereby, the learned Additional CJM has taken cognizance of offence against the petitioner under Section 138 of Negotiable Instruments Act, 1881 (hereinafter, in short, the NI Act).

3. The brief facts of the case is that the complainant/respondent No. 2 is a businessman by profession, having friendly relationship with the accused petitioner. On several occasions and financial hardship, the accused petitioner availed financial assistance from the complainant and the total amount of money taken by the accused petitioner was Rs. 21 lacs only, on several installments from the year 2017 to 2019 and out of the said amount, the accused petitioner in order to discharge his liability issued a cheque vide No. 748178, dated 12.10.2020, for an amount of Rs. 6 lacs, drawn on the State Bank of India, Gogamukh Branch. On 12.10.2020, the complainant presented the said cheque before his banker, i.e., the State Bank of India at Lakhimpur, for collection of the said amount, but the said cheque was dishonoured by drawee bank and the cheque was returned to the respondent with a returning memo.

4. The respondent, then contacted the accused over phone and the accused assured him that he would deposit the money in his account and later on, as per instructions of the accused petitioner the respondent again deposited the said cheque on 23.10.2020, which was again returned back to him on 26.10.2020 with the endorsement –“funds insufficient” and the cheque was dishonoured. Thereafter, the complainant had received the cheque from the Axis Bank, Noonmati Branch on 15.02.2021.

5. On 02.03.2020, the complainant served a notice through registered post with A/D through his engaged Advocate with a demand for making payment of the said amount of Rs. 6 lacs within 15 days from the date of receipt of the said notice and the said notice was duly received by the accused petitioner on 12.03.2021, but it was again returned back on 16.03.2021, by post. Thereafter, the respondent as complainant filed the case against the accused petitioner under the provisions of NI Act, before the Court of CJM, Kamrup (Metro), vide CR Case No. 1410c of 2021.

6. The wrong contemplated under Section 138 of the NI Act is a criminal offence and hence, all the ingredients constituted by the legal provision must be strictly met with. Therefore, a brief mention of the same is an order. Culpability for the offence of dishonor of cheque under Section 138 NI Act requires that the accused should have drawn the cheque on a bank account maintained by him and issued the same to the complainant in discharge of her debt or other legal liability. The cheque should have been dishonoured for the reasons specified in Section 138 of the NI Act. It further enjoins the payee to send a notice to the drawer demanding payment of the cheque amount within 30 days of the dishonor of the cheque. It is only upon non-payment of the cheque amount within 15 days of the receipt of the demand notice, the complainant is at liberty to file a criminal complaint against the drawer for dishonour of the cheque.

7. Learned counsel for the petitioner has argued that under Clause-(b) of the proviso to Section 138 of the NI Act, the payee or the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of 30 days from the date of receipt of the information from the bank regarding the return of the cheque as unpaid and under Clause-(c), the drawer is given 15 days ti