Presumption of cheque being issued in discharge of debt, validity of legal notice, and maintainability of complaint under the NI Act.

This Revision Application is directed against the order dated 12.1.2016 passed by the learned Sessions Judge, Imphal West in Cril. Appeal No.19 of 2014/15 of 2015 whereby and whereunder learned Sessions Judge affirmed the judgment dated 31/12/13 and order of sentence dated 16/6/14 passed by the learned Chief Judicial Magistrate, Imphal West in Criminal Complaint Case No. 266/12 whereby and whereunder learned Chief Judicial Magistrate, Imphal while acquitting the appellant for the offence punishable u/s 420 of the IPC, convicted him for the offence punishable u/s 138 of the NI Act and passed the order to pay compensation of Rs.40/- lakhs (twice the amount covered under the two cheques) to the respondent.

2. The case of the complainant, as has been made out in the complaint petition, is that the complainant and the accused/appellant were known to each other since last 6(six) years as the complainant used to do contract work in the name of the appellant. The appellant borrowed a sum of Rs.40/- lakhs from the respondent on the promise that he will be returning it back after one year. In due course when the complainant demanded the money back, the appellant issued two self cheques (Ext.A/5 and Ext.A/6) of Rs.10/- lakh each. These cheques when were deposited got bounced. However, these two cheques are not the subject matter of prosecution.

3. According to the case of the complainant, the appellant, subsequently on demand, issued two cheques on 20.8.2012 each of Rs.10/- lakh in the name of the complainant. The complainant/respondent deposited the said cheque in the Imphal Urban Co-operative Bank Ltd. on 22.8.2012, but the said cheques were bounced due to insufficient fund. Thereafter, the complainant vide its letter dated 27.8.2012 informed the appellant about the said fact and again demanded money which was due to be paid. On 18.9.2012 the complainant again deposited the said cheque in his Account at Punjab National Bank. Again it got bounced back on account of the fact that the appellant’s account at Imphal Urban Co-operative Bank has been closed. Thereupon, a legal notice was sent to the accused on 22.9.2012 which was replied with by the accused appellant on 01.10.2012 and then the complaint was filed on 12.10.2012.

4. Upon cognizance being taken when the accused appeared, he was put on trial on the charge of committing offence u/s 420 of the IPC and also u/s 138 of the IPC.

5. During trial, 3 (three) witnesses were examined on behalf of the complainant/respondent who supported the case as had been made out in the complaint petition. During trial, those two cheques, which were self cheques, were adduced in evidence and were marked as Ext.5 and Ext.6 whereas 2(two) cheques which are the subject matter of the prosecution were marked as Ext.P/3 and P/4. The demand letter dated 27.8.2012 and legal notice dt 22.9.2012 were also marked as Ext.X/1 and Ext. P/1.

The accused appellant, in course of the trial, took several defences whereby it was put forth that the complainant got the said cheques signed forcibly and that the letter of demand dated 27.8.2012 and legal notice dated 22.9.2012 have not been adduced in evidence in accordance with law and that the letter dated 27.8.2012 can never be taken to be the letter of demand rather demand letter, if any, can be taken to be the legal notice dated 22.9.2012 and thereby notice of demand in writing being not sent within 30 days of bouncing of cheque in terms of Section 138 (b) of the NI Act, any complaint lodged on such fact was not maintainable.

6. The trial court did not find any substance in any of the defences taken on behalf of the accused-appellant whereas the trial court, on the other hand, did find that the complainant has been able to establish the charge and thereby the trial court while acquitting the appellant u/s 420 of IPC, recorded the order of conviction u/s 138 of N.I. Act and passed the order to pay compensation of Rs.40/- lakhs (twice the amount covered under th