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2018 Supreme(Tri) 274
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Sri Benu Roy, S/O Lt. Manini Kr. Roy - Appellant
Versus
Sri Rajib Ghosh, S/O Sri Biswanath Ghosh - Respondent
Crl. A No. 23 of 2016
Decided on : 30-08-2018
Advocate Appeared:
For the Appellant : Mr. D. R. Choudhury, Adv.
For the Respondent: Mr. D. Bhattacharjee, Adv.
The appellant proved the legal liability, and the accused respondent failed to rebut the presumption under Section 139 read with Section 138 of the NI Act.
Headnote:
Negotiable Instruments Act - Dishonour of Cheques - Section 138
Fact of the Case:
The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, alleging that the respondent issued two cheques which were dishonoured due to insufficient funds. The appellant sent a demand notice to the respondent, but the respondent pleaded innocence and claimed to be tried.
Finding of the Court:
The trial court acquitted the accused respondent, stating that the complainant failed to prove the legal liability and that the demand notice did not bear the sender's signature. The appellant challenged the judgment, and the appellate court found that the accused respondent failed to rebut the presumption under Section 139 read with Section 138 of the NI Act. The accused respondent was convicted and sentenced to pay a fine of Rs.10,00,000/-.
Issues: The main issue was whether the accused respondent had a legal liability to discharge and whether the demand notice was valid.
Ratio Decidendi: The court held that the appellant proved the legal liability and that the accused respondent failed to rebut the presumption under Section 139 read with Section 138 of the NI Act.
Final Decision: The accused respondent was convicted and sentenced to pay a fine of Rs.10,00,000/-.
1. Heard Mr. DR Chouhdury, learned counsel appearing for the appellant as well as Mr. D Bhattacharjee, learned counsel appearing for the respondent.
2. This is an appeal under Section 378(4) of the CrPC from the judgment and order of acquittal dated 27.05.2016 delivered in case No. NI 19/2013 by the Addl. Chief Judicial Magistrate, West Tripura, Agartala.
3. By the order dated 04.08.2016, the appeal was admitted inadvertently without leave. Later on, the appellant filed an application for leave being IA 01/2018 (in Crl. A. 23/2016) which was allowed by the order dated 06.08.2016.
4. In the said order, the objection raised by the respondents in respect of the belated filing of the appeal has been taken note of but in order to regularize the records, having due regard to the substantive ends of justice, leave was granted subject to payment of Rs.1,000/-, which the appellant has already paid.
5. Mr. Bhattacharjee, learned counsel at the outset has reiterated the said ground of objection, but the respondent has neither challenged the order dated 06.08.2016 nor have they asked for any accommodation for challenging the said order. As such, the said objection stands discarded.
6. Brief facts leading to filing of the complaint under Section 138 of the Negotiable Instruments Act, 1881 may be summarized at the outset. The respondent had purchased one Tata JD Backhoe Loader (earth cutting machine) from the complainant-appellant on a consideration price of Rs.9,00,000/-. In order to pay the said consideration price of the Tata JD Backhoe Loader having registration No. TR01 P 1679, it has been stated in the complaint that the respondent issued two separate cheques being the cheque No. 636258 for an amount of Rs.3,00,000/- dated 21.11.2012 and the cheque No. 636259 for an amount of Rs.6,00,000/- dated 21.11.2012 in favour of the complainant-appellant on the State Bank of India, MBB College Campus Branch. The complainant, in order to encash, deposited those cheques in his account in the State Bank of India, RMS Choumuhuni Branch on 01.01.2013.
7. On the same date, i.e. 01.01.2013 he got the banker’s note that for insufficiency of funds in the account of the accused- respondent, both the cheques had bounced. Immediately, he arranged for issuance of the demand notice through his authorized lawyer and such notice was issued on 15.01.2013 by registered post with A/D. By the said notice, the lawyer asked the accused respondent to make payment of Rs.9,00,000/- within 15 days from the date of notice, otherwise, the complainant-appellant will be advised to take appropriate action available at law.
8. Since the acknowledgement card did not return, the said lawyer addressed a letter to the Post Master, Agartala Head Post Office and by the communication dated 23.02.2013 (Exbt- 6) the Post Master, Agartala Head Office had clearly communicated that the registered article (the notice) was delivered to the addressee on 18.01.2013.
9. The accused respondent by issuing a note dated 21.11.2012 (Exbt-8) has clearly admitted that the price for purchasing the said Tata JD Backhoe Loader was settled at Rs.9,00,000/- and in order to pay the said consideration price, he has issued those cheques. The said note (Exbt.-8) has not been questioned at any point of time by the accused-respondent.
10. Since the accused respondent even after the demand did not pay the said amount within the stipulated time, the complaint was filed in the Court of the competent jurisdiction on 23.02.2013 and after examination of the complainant under Section 200 of the CrPC the process was issued and the accused respondent participated in the proceeding. In due course, the statement of accusation was read out to him. The statement of accusation, as read out to the accused respondent, is as under:-
“It is alleged by Sri Benu Roy that you Rajib Gosh issued two cheques bearing No.636258 dated 21.11.12 for Rs. 3,00,000/- and No. 636259 dated 21.11.12 for Rs. 6,00,000/- drawn on SBI, MBB
