A cheque issued from an account not held by the issuer fails to satisfy the basic requirements under Section 138 of the Negotiable Instruments Act, leading to acquittal.

JUDGMENT

This is an appeal under Section 378 (4) of the Cr.P.C. against the judgment and order of acquittal dated 29.06.2019 delivered in Case No.CR.(NI) 02 of 2016 by the Chief Judicial Magistrate, Sepahijala, Sonamura.

[2] The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, NI Act in short, when a cheque bearing No.968670 dated 15.09.2018 for the amount of Rs.6,50,000/- [Rupees Six lakhs Fifty thousand] drawn on United Bank of India, Sonamura Branch was dishonoured ‘due to insufficiency of fund.’ The said cheque was sought to be encashed through the State Bank of India, Sonamura Branch. On 21.09.2016, the appellant received the memo of return recording dishonour of the said cheque for insufficiency of fund. Apparently, the appellant followed the statutory ‘requirement’ to institute the complaint under Section 138 of the NI Act. After the substance of accusation was read out to the respondent No.1 under Section 251 of the Cr.P.C. which was denied by the respondent No.1, the appellant led the evidence in support of the accusation. He adduced as many as 4[four] witnesses and introduced 4[four] documents including the original cheque that was dishonoured [Exbt.1], the return memo of the cheque [Exbt.3] and the statutory notice of demand [Exbt.4]. The respondent No.1 did not adduce any evidence. After recording of the evidence, the respondent No.1 was examined under Section 313 (1b) of the Cr.P.C. in respect of the incriminating materials as apparently surfaced in the evidence. The respondent No.1 denied those materials. According to him, he has been implicated falsely. The Chief Judicial Magistrate heard the arguments, purportedly appreciated the evidence and held that the complainant through PWs-2,3 & 4 has insisted that the respondent No.1 borrowed a sum of Rs.6,50,000/- from the complainant [the appellant herein]. The Chief Judicial Magistrate has observed that in their evidence there is not even a whisper as regards the handing over of that huge sum of money in cash. He has further observed that those witnesses did not state directly that the complainant had delivered that cash to the respondent No.1. According to the Chief Judicial Magistrate, this was a serious omission in the complaint itself, since PW-2 ought to have clearly reflected that he delivered and handed over a sum of Rs.6,50,000/- to the accused. For this, the testimony of PWs-2,3 & 4 was considered to have no foundation and cannot be believed. Thus, by the judgment dated 29.06.2019, the Chief Judicial Magistrate has further held that the liability to pay has not been proved and thus, the onus did not shift to the respondent No.1 for rebutting the presumption under Section 139 of the NI Act. Even the Chief Judicial Magistrate has observed that there is serious inconsistency between the statements in the complaint and the demand notice [Exbt.4]. In Para-27 of the said judgment dated 29.06.2019, the Chief Judicial Magistrate has observed as follows:

27. Moreover, though PW-1 stated that the cheque was signed by accused person but his testimony has no basis because he was not the eye witness of the signing of the cheque and he was also not present in the bank when it was presented first time. Mere silence of defence in the cross-examination of PW-1 cannot lead to the conclusion that the statement of PW-1 relating to signature in the name of accused on the cheque was admitted by defence. PW-1 is also not a hand-writing expert to conclusively identify the signatory of the cheque. In other words, I hold that the testimony of PW-1 d