A cheque issued for repayment of a loan constitutes a legally enforceable debt under Section 138 of the NI Act, with the burden of proof on the accused to rebut the presumption of liability.

JUDGMENT

T. Amarnath Goud, J. - Heard Mr. T.D. Majumder, learned senior counsel assisted by Mr. J. Bhattacharjee, learned counsel appearing for the petitioner. Also heard Mrs. P. Dhar, learned counsel appearing for the respondent.

2. This petition has been filed under Section-397 read with Section-401 & 482 of the Code of Criminal Procedure Act, 1973 against the judgment dated 11.06.2019 passed by the learned Sessions Judge, Gomati Judicial District, Udaipur in Criminal Appeal No. 25(3) of 2018 for setting aside the conviction for offence under Section-138 of the Negotiable Instrument Act, 1981.

3. Factual backdrop of the case is that the complainant (respondent herein) Sri Dipankar Majumder, Branch Manager, Shriram Transport Finance Company Limited, Udaipur Branch, is engaged in the business of financing both new and used commercial vehicles. On 21.11.2012, the accused-petitioner Sri Manik Lal Das entered into a loan cum hypothecation agreement No- AGRTL0211200012, with Shriram Transport Finance Company Limited, for purchasing one JCB 3DX (Machinery) vide registration No- TR01R0524 on condition to repay the loan in monthly installments. But after paying a few installments the accused did not repay the rest of the loan amount. On 20.02.2016, on being approached by the complainant the accused petitioner issued a cheque bearing No- 686379 dated 20.02.2016, drawn on United Bank of India, Kaman Chowmuhani Branch for an amount of Rs. 22,12,141/-, in favor of the Shriram Transport Finance Company Limited to discharge his liability. The complainant, being the authorized agent of the company deposited the cheque No- 686379 dated 20.02.2016 in the account of the Shriram Transport Finance Company Limited in the State Bank of India, Udaipur Branch for encashment. But the cheque was returned unpaid on 23.02.2016 by the bank with the remark 'Account Closed'. Thereafter, on 14.03.2016, demand notice was served on the accused who received the notice on 17.03.2016 but the accused did not repay the loan of the company. Hence this case under Section 138 of the Negotiable Instruments Act, 1881 was instituted by the complainant on behalf of the company.

4. The accused turned up and contested the case and on being examined under Section 251 of the Cr.P.C. in terms of offence under Section 138 of the Negotiable Instruments Act, 1881, pleaded not guilty and claimed to be tried. In the trial the complainant examined himself as PW. 1 and proved the relevant documents viz. 1) Exhibit. 1 - Original loan-cum-hypothecation agreement. 2) Exhibit. 2 - Original cheque bearing no 686379. 3) Exhibit. 3 - Original bank endorsement issued by the United Bank of India, Udaipur Branch. 4) Exhibit. 4 - one loan account statement. 5) Exhibit. 5 - Postal AD Card dated 17.03.2016 6) Exhibit. 6 - Postal registration slip. 7) Exhibit. 7 - Original Power of attorney dated 08.12.2016.

5. In his examination under Section-313 of the Cr.P.C. the accused petitioner admitted that he had entered into a loan cum hypothecation agreement with Shriram Transport Finance Company Limited but totally denied the other claims of the complainant. He admitted his signature in the cheque bearing no-686379 issued to the Shriram Transport Finance Company Limited and he also admitted that he did not repay the entire loan amount to the Shriram Transport Finance Company Limited. In support of his defence, the accused petitioner examined himself as the sole witness. No documentary evidences were adduced by the accused petitioner.

6. Thereafter, hearing the argument of both sides the trial court passed the impugned judgment