Abhijit Biswas vs Debasish Das

Indrajit Chatterjee, J.—This appeal has been preferred as against the judgment and order of acquittal dated 21.03.2011 as passed by the the-then Additional Sessions Judge, First Court, Hooghly in Criminal Appeal No. 32 of 2010 wherein the learned First Appellate Court reversed the order of conviction as passed by the learned Chief Judicial Magistrate, Hooghly in Complaint Case No. 57 of 2005 under Section 138 of the N.I. Act.

The fact relevant for the purpose of the appeal can be summarized thus:-

One complaint was filed by the present appellant giving rise to the aforesaid complaint case wherein it was claimed by the present appellant that the accused-respondent had good relationship with the complainant over the years and sometimes at the end of March, 2003, the accused-respondent approached the complainant with a request for helping him with a friendly loan of about Rs. 1,50,000/-.

Relying on the good relationship between the parties, the complainant agreed for an accommodation loan of Rs. 1,47,000/- and the said money was handed over to the accused in three installments i.e. Rs. 37,000/- on 6.4.2004, Rs. 1,00,000/- on 12.4.2004 and Rs. 10,000/- on 14.4.2004. The accused promised to repay the complainant at the earliest and in discharge of that liability, the accused issued two cheques in favour of the complainant bearing cheque No. 939085 dated 30.12.2004 for Rs. 65,000/- and cheque No. 939086 dated 4.1.2005 for Rs. 65,000/- both drawn on Burdwan Gramin Bank, Sugandha Branch.

The complainant-appellant deposited the cheques for encashment in his bank account maintained with the Indian Bank, Chinsurah Branch, District - Hooghly and on 18.1.2005 the complainant received two return memos from his banker wherein the complainant was informed that both the cheques were dishonoured for ''Insufficient Funds''.

Thereafter, the Complainant issued notice as contemplated under the N.I. Act on 27.01.2005 by registered post with A/D through his Advocate to make payment within 15 days and the said notice was duly received by the respondent on 29.01.2005, but the accused did not pay and as such the complaint was filed under Section 200 of the Cr.P.C. before the learned Chief Judicial Magistrate, Hooghly at Chinsurah.

The matter was heard by the said Court and as per the judgment as passed by the said learned Court, the accused-respondent was found guilty in respect of the charge under Section 138 of the N.I. Act and was sentenced to pay fine of Rs. 2,60,000/-, in default to suffer simple imprisonment for six months and it was further ordered that out of that fine amount, Rs. 1,30,000/- will go to the complainant and naturally, the rest of the amount will go to the State coffer.

Unfortunately, the learned Trial Court did not pass any substantive sentence on the accused-respondent even though under Section 138 of the N.I. Act, such substantive sentence is a must. However, that point was not considered by the First Appellate Court in the judgment in challenge before this Court.

In the judgment delivered by the learned Trial Court, it was specifically held that the transaction between the parties was not a loan transaction and the learned Trial Court disbelieved Exhibit-A on the ground that it failed to convince him that it was regarding the loan account maintained by the present appellant as regards the loan granted in favour of the present respondent.

Unfortunately, for the appellant, this Exhibit-A was relied upon by the First Appellate Court and she observed in internal page No. 5 of the judgment (page 24 of the paper book) that she did not agree with the finding of the learned Trial Magistrate as regards Exhibit-A and further held that under the circumstances, as proved, format of the record i.e. Exhibit-A cannot be the basis of non-admission of the same as erroneously held by the learned court below, more so, when contents therein have been substantially proved by the person, who has written such document and produced before the Court.

Thus, the only question in this appeal centers round whether Exhibit-A can be treated as books of accounts for the transaction in question.

It may be mentioned that before the learned Trial Court, the complainant was examined as P.W. 1 and the bank official was examined as P.W.2. The relevant documents were marked being cheques, deposit slip, Advocate''s notice, A/D card and the return memos in respect of both the cheques.

On behalf of the respondent, Exhibit-A was proved through the cross-examination of P. W.1.

Regarding the Exhibit-A, the case of the Appellant before the Trial Court was that it was true that it was written by him, but it was specifically claimed that it relates to some other transaction between the parties that it did not conform to the maintenance of books of accounts and that Exhibit-A will not reflect that those cheques i.e. for Rs. 65,000/- each respectively dated 30.12.2004 and 4.1.2005 were issued by the present accused-respondent in favour of the complainant-appellant and as such, this Exhibit-A cannot be taken to be part of the transaction for which the complaint case was filed.

Mr. Roy, in counter to all these, submitted that it was neither claimed before the learned Trial Court nor before the Court of First Appeal that it related to some other transaction and that it did not conform to the norms of maintenance of books of accounts.

Mr. Roy had to admit that in Exhibit-A there is no mention of taking of loan of Rs. 1,47,000/- or that it was repaid by issuance of two cheques for Rs. 65,000/- each.

On behalf of the appellant it was argued by Mr. Tapas Ghosh learned Advocate that:-

No. 1 - In response to the notice issued after the cheques were dishonoured the respondent did not give any reply and as per the decision of the Apex Court as reported in Rangappa Vs. Sri Mohan, , a three Judge Bench decision wherein the Apex Court held that the very fact that accused had failed to reply to statutory notice under Section 138 of the N.I. Act led to the inference that there was merit in the complainants version.

No. 2 - That in 313 Cr.P.C. the accused did not claim that he gave two blank cheques to repay the loan which was already existing and he also did not claim that the body of the cheques were filled in by any other person and that holder of cheque, one negotiable instrument is protected both under Sections 118 and 139 of the Negotiable Instrument Act in view of the rebuttable presumption in favour of the person in whose favour the cheques were drawn unless a case is made out by the defence to rebut that presumption.

Mr. Ghosh submitted by taking me to the evidence on record to say that Exhibit-A cannot be believed being a document relating to the present transaction and the decision of the First Appellate Court on this point was wrong. He further argued that the learned Trial Court rightly decided the matter in internal page No. 5 of the judgment.

In counter to all these, Mr. Roy appearing on behalf of the respondent submitted that (1) when Exhibit-A was admitted by PW-1 in his evidence then either it may relate to this transaction or the appellant ought to have said that on which transaction that document was related but the appellant had failed to do so and as such it cannot be said that Exhibit-A was not a document pertaining to the present transaction, (2) that there was no legally enforceable debt and as such Section 138 of the N.I. Act cannot be attracted and (3) that the cheques were issued as securities as suggested to PW-1.

In a court of law, a case is decided how it has been proved or disproved. Regarding the issuance of cheques the present respondent claimed before the trial court when PW-1 was being cross-examined that he gave two blank cheques in favour of the complainant to repay the loan amount which had started in the year 2002 and 2003. It is needless to say that in a trial whether it is civil or criminal mere suggestion is not a proof of the fact as claimed unless it is admitted by the witness. The respondent when he was being examined under Section 313 Cr.P.C. did not use a single word to say in what circumstance he issued those cheques. At least the signatures of the respondent on both the cheques are admitted. There is no substantive evidence coming from the side of respondent that actually he signed on the blank cheques. He could have faced the dock before the learned trial court to say in clear tone that those blank cheques were issued as securities and that he did not fill in the body of the cheques. It is true that the accused has a right of silence before the Court about which this court will be dealing later on. It is needless to say that suggestion is not substantive evidence. Thus, there is no substantive evidence before this court that actually the accused respondent issued those blank cheques as securities.

Now the question is whether Exhibit-A can be correlated with the present transaction that is regarding issuance of two cheques of Rs. 65,000/- each respectively dated 30.12.2004 and 04.01.2005. I have meticulously gone through Exhibit-A there is no reference of rupees 1 lakh 47 thousand or issuance of cheques of Rs. 65,000/- each. There is also no reference to tag that Exhibit-A with the present transaction. Exhibit-A started with loan of Rs. 70,000/-, 10,000/-, 15,000/- and Rs. 15,000/- in total rupees 1 lakh 10 thousand and this rupees 1 lakh 10 thousand cannot be the subject matter of the present case. This Exhibit-A ended in the month of August, 2004. I have already said that the cheques were issued in the month of December, 2004 and January, 2005 and naturally long after August, 2004. Thus it is difficult for this Court to be at one with the learned First Appellate Court that Exhibit-A can be stretched to the present transaction.

This court is not unmindful of the fact that even though the present appellant received the notice on 29.01.2005 but did not give any reply even though he was made aware that both the cheques were issued by him was dishonoured. This type of attitude of one person who had issued cheques has been decried by the Apex Court in its decision as delivered in Rangappa (supra) wherein the Apex Court observed "the very fact that accused had failed to reply to statutory notice under Section 138 of the Act led to the inference that there was merit in complainant''s version." The Apex Court did not stop there it further held "Apart from not raising a probable defence, the appellant accused was not able to contest the existence of a legally enforceable debt or liability". This Court is not unmindful of the presumption of Section 118 of the N.I. Act which runs thus: presumptions as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration,......

This court is also not unmindful of the presumption given in favour of the holder of a negotiable instrument. I repeat Section 139 of the Act merely raises a presumption in regard to the fact that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes legally enforceable debt (Section 138 Clause-ii) of the Act.

Apex Court in its decision as decided in Rangappa (supra) held "existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act abd that it merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability". Whether the respondent signed on a blank cheque or not is no factor in a case under Section 138 of the N.I. Act. I can state here the decision of this Hon''ble Court as reported in Nita Kanoi Vs. Paridhi and Others .

Thus, it has been set at rest by the aforesaid decision of the Apex Court that for proving the defence the accused is not required to step into the witness box to discharge his burden. The accused has a constitutional right to maintain silence. The standard of proof on the part of the accused and that of the prosecution in a criminal case is different. The accused for discharging the burden of proof placed upon him under a statute need not examine himself. In another decision of the Apex court as reported in Hiten P. Dalal Vs. Bratindranath Banerjee, is also relevant for this purpose. I like to quote one paragraph from the said judgment "therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable the standard of reasonability being that of the prudent man".

Without making this judgment further lengthy this court is of the opinion that the accused before the learned trial court failed to rebut the presumption by such evidence to make the court believe that those two cheques were not issued in discharge of the existing liability. On this point I have discussed that the accused did not answer to the notice that he did not make out a specific case except by way of suggestion that those two cheques were given as securities and that the accused did not claim in his 313 examination that those two cheques were issued blank.

This court is not convinced with the argument of the learned advocate for the respondent that Exhibit-A can be tagged with the present transaction. It cannot be believed in view of the evidence on record and the act of the accused that those two cheques were not issued in respect of legally enforceable debt or that the cheques were issued as securities.

Thus, the finding of the learned First Appellate court is fit to be set aside and I do that. The appeal succeeds but without any costs.

This court is satisfied that the complainant has duly prove the charge against the accused under Section 138 of the N.I. Act and the order acquittal passed by the learned first appellate court as per the impugned judgment is hereby set aside. This being one summons procedure case there is no need to examine the accused at the time of passing of sentence.

This being so the respondent is hereby sentenced to suffer rigorous imprisonment for 10 days and to pay compensation to the complainant appellant to the tune of Rs. 2 lakh 60 thousand (Rs. 2,60,000/-) in default he will have to suffer rigorous imprisonment for 2 years more.

Let a copy of this order be forwarded to the learned First Appellate Court by the department for necessary action on the part of that court. Another copy of this order along with the Lower Court Records will go to the learned trial court being the Chief Judicial Magistrate, Hooghly at Chinsurah.

Notice be issued by the learned trial court, the Chief Judicial Magistrate, Hooghly to the respondent to surrender within one month from the date of the receipt of the notice to serve out the sentence and also to pay the compensation amount by that stipulated time. Failure to do so will entitle the learned trial court to issue warrant of arrest as against the present accused respondent.

The Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously.