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IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Shri Jayanta Banik - Petitioner
Vs.
Shri Ritish Sarkar - Respondents
CRL. REV. P. NO. 95 OF 2013
Decided On : 14-12-2015
N.I. Act - Dishonour of Cheque - Section 138, Section 139, Section 146, Section 118 - The court discussed the admissibility of documents, burden of proof, presumption of consideration, and the requirement of notice for demand under Section 138 of the N.I. Act. The court emphasized the presumption of liability under Section 139 and the burden to rebut the presumption under Section 146. It also referred to relevant case laws to support its decision.
Fact of the Case:
The petitioner borrowed Rs. 1,15,000 from the respondent and issued three cheques for repayment. The cheques were dishonoured, and the respondent filed a complaint under section 138 of the N.I. Act.
Finding of the Court:
The court found that the documents were properly admitted, and the petitioner failed to disprove the liability to repay the loan. It emphasized the presumption of liability under Section 139 and the requirement of notice for demand under Section 138 of the N.I. Act.
Issues: Admissibility of documents, burden of proof, presumption of liability, and the requirement of notice for demand under Section 138 of the N.I. Act.
Ratio Decidendi: The court held that the burden to rebut the presumption of liability lies on the petitioner and emphasized the requirement of notice for demand under Section 138 of the N.I. Act.
Final Decision: The court dismissed the petition, upholding the admissibility of documentary evidence and the service of notice, and affirmed the judgment of conviction.
By means of this petition filed under section 397 read with section 401 of the Cr.P.C., the judgment and order dated 29.05.2013, delivered in Criminal Appeal No. 39(3) of 2012 by the Additional Sessions Judge West Tripura, Agartala, Court No.3 has been questioned.
2. The judgment of conviction dated 18.08.2012 delivered in Case No. N.I. 79 of 2008 by the Additional Chief Judicial Magistrate, West Tripura, Agartala, has been affirmed by the judgment dated 29.05.2013, hereinafter, referred to as the impugned judgment.
3. Mr. D.C. Roy, learned counsel appearing for the petitioner has submitted that there is substantive failure to appreciate the grounds of objection as raised by the petitioner as to the service of notice and admission of the documents namely notice after dishonour of cheque from the bank and the cheques itself purportedly issued by the respondent No.1 while passing the impugned judgment. It has been contended for the petitioner that the statement has been treated as the admission by the petitioner cannot also be accepted as admission as the petitioner has categorically denied of executing such document. The bare minimal fact that would be required to lay the perspective of the challenge, may be noted as under :
The revisional petitioner approached for a loan of Rs. 1,15,000/-to the respondent No.1 and the respondent No.1 on good faith extended the loan of Rs. 1,50,000/-on condition that whenever he would demand the petitioner shall repay the loan amount at once.
4. When the respondent No.1 came to know that the petitioner had taken that loan for investing it in some other businesses, then he demanded the repayment on 04.03.2008. The respondent No.1 approached the petitioner and requested him to repay the loan amount. The petitioner issued the cheque No.968116 dated 04.03.2008 for an amount of Rs.20,000/-. On 19.03.2008 and 25.03.2008 the petitioner had also issued two other cheques under No.968117 for an amount of Rs. 40,000/-and No. 834769 for an amount of Rs. 12,000/-with a request to deposit those cheques after 25.03.2008. The petitioner deposited those cheques in his S.B. A/C No. 10320385991 in the State Bank of India, TLA Branch at Agartala after 25.03.2008. All those three cheques were dishonoured for in sufficiency of fund. The Manager of State Bank of India, TLA Branch on which the cheques were drawn issued a certificate of "Insufficient fund" on 29.03.2008. On 20.04.2008 the respondent No.1 issued a notice through a lawyer on the petitioner with a request to make payment of Rs.80,000/-(the aggregate amount) within 15 days. But the petitioner did not make any payment. As such the respondent No.1 was compelled to file the complaint under section 138 (b) and (c) of the N.I. Act, read with section 420 of the IPC.
5. On 20.10.2008 when the petitioner surrendered before the court he admitted that he had taken Rs. 1,15,000/-from the respondent No.1 and prayed for two months time for making the payment and accordingly, the date was fixed on 20.02.2009 for payment but on that day the petitioner did not appear.
6. Thereafter, by the judgment dated 18.08.2012 delivered in Case No. N.I. 79 of 2008, the petitioner was convicted. It is admitted position that no bank officials appeared as the witness to admit the certificate of insufficient fund nor for admitting the cheques those were dishonoured. Even none appeared from the courier through which the notice was served. Despite that three cheques were admitted in the evidence as Exhibit 1,2 and 3 whereas the letter of the Branch Manager, State Bank of India, TLA Branch, has been admitted as Exhibit 4, the cheque returning memo from the UCO Bank, Bagan Bazar Branch as Exhibit 6 , the receipt of the courier service as Exhibit 7 Series and the purported under-taking of the petitioner as Exhibit 8 without any protest.
7. Mr. Roy, learned counsel appearing for the petitioner has submitted that if it is held that documents were not properly admitted then the case of
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