The presumption under Section 139 of the Negotiable Instruments Act regarding the issuance of a cheque for a legally enforceable debt is significant; an accused must substantiate any rebuttal with credible evidence.

JUDGMENT

1. This is an application under Section 397 read with Section 401 of CrPC, 1973 against the Judgment & Order dated 10.12.2018 passed in Criminal Appeal no.42(3) of 2017 passed by Additional Sessions Judge, South Tripura, Udaipur whereby the appeal filed by the respondent No.1 Sri Dipankar Majumder was allowed setting aside the judgment of the CJM in Case No.CR(NI) 70 of 2016 convicting the respondent No.1 to suffer simple imprisonment for 1 year and to pay of Rs.6,00,000/- i.e to suffer simple imprisonment for further period of 6 months for commission of Offence under Section 138 of NI Act.

2. For the sake of brevity the parties are referred to as in the CR (NI) 70 of 2016. The brief fact of the complainant's case is that the accused Sri Apu Ranjan Debnath had friendly relation with the complainant Sri Apu Ranjan Debnath and had taken Rs.3,00,000/- from the complainant with a promise to repay the same very shortly and on 08.06.2015 the accused issued the cheque vide no.445340 in favour of the complainant to discharge his debt and liability and on the same date the complainant deposited the said cheque in his account vide no.8070012400541 lying in the Tripura Gramin Bank, Udaipur Branch and on the same date the said cheque was dishonoured due to insufficient of fund in his account vide no.30245476465 lying the State Bank of India, Udaipur Branch and on 12.06.2015 the complainant issued demand notice top the accused and on 13.06.2015 accused has received the said notice but failed to pay the money.

3. Having heard the counsel for both the parties, the trial court made the following points for determination:

(i) Whether the accused Sri Dipankar Majumder on 08.06.2015 issued the cheque No.445340 in for Rs.3,00,000/- in favour of complainant in discharge of his debt and liability?

(ii) Whether on 08.06.2015 while the cheque was presented to the Triprua Gramin Bank, Udaipur it was dishounoured by the bank due to insufficient fund in the account of the accused?

(iii) Whether the accused even after receipt of the notice of the complainant, did not return the money and did not make arrangement of sufficient fund in his account to make the transaction good and to honour the cheque?

4. While deciding the Point No.(ii), the trial court has observed that Ext.3 the bank return memo bears the mark and signature of bank officials denoting dishonor of cheque due to insufficient fund in the account of accused. As per Section 146 of NI Act the Court shall, in respect of every proceeding under Chapter XVII, i.e., in respect of proceeding under Section 138 of NI Act as this case, on production of banks slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonor of such cheque, unless and until such fact is disproved. In this case, Ext.3 the bank slip there are Bank officials signature and mark denoting the cheque in question was dishonoured due to insufficient of fund in the account of accused and accused failed to adduce any evidence to disprove such presumption. The accused also failed to bring any material during cross-examination to disprove the said presumption.

5. Thus, therefore, considering all the aspects, the trial court found that the complainant is able to prove the fact that the cheque vide no.445340, dated 08.06.2014 was dishonoured due to insufficient fund in the account of accused and also due to drawers signature differs. Accordingly the point no.(ii) was decided in affirma