Bhaskar Kalita vs Suresh Shah

Present appeal has been preferred under Section 378(4) of the code of Criminal Procedure against the judgment dated 20.10.2009 passed by the learned judicial Magistrate 1st class, Rangiya in CR case No.278/2007 acquitting the accused.

I have heard Mr. L Talukdar, learned counsel for the appellant. I have also heard Mr. A Mannaf, learned counsel for the respondent.

In brief, the prosecution story is that about 8(eight) months ago from the date of filing of the complaint, accused, Shuresh Shah took Rs.1,05,000/-(Rupees one lakh and five thousand) only from the complainant for business purpose with promise to repay the same on call. On repeated request, the accused issued 3(three) numbers of cheque on 07.05.2007 in favour of the complainant. On 21.05.2007 while the complainant presented the cheque at UCO Bank, Rangiya for encashment, the Bank authority returned the cheques to the complainant with a cheque returning memo "full cover not received". On 04.06.2007 the complainant issued legal notice to the accused demanding the cheque amount but as the accused did not responded so the complaint was filed under Section 138 NI act the court took cognizance of the offence under Section 138 NI Act and the charge was under Section 138 NI Act was explained to the accused to which the accused pleaded not guilty and claimed to be tried.

The prosecution examined 3(three) numbers of witnesses and the defence also examined one witness. The plea of the defence is of total denial. The learned trial court framed the following points for determination:

i. Whether the accused had issued three numbers of cheque to the complainant ?

ii. whether the cheques issued by the accused in fovour of the complainant were returned by the Bank unpaid ?

iii. whether the accused had issued three numbers of cheque in favour of the complainant in discharge of any debt or other liability?

At the conclusion of the trial, the learned trial court find an hold that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt under Section 138 NI Act because of certain lacuna in the prosecution case and acquitted the accused persons from the charge by its order dated 20.10.2009.

Challenging the correctness of the above finding, present appeal has been preferred.

I have heard the submission of the learned counsel for both the parties at length and also gone through the impugned judgment and the LCR.

The complainant examined himself as PW-1 and reiterated the facts that has been depicted in his complaint petition that the accused took a loan of Rs.1,05000/- from him on 03.11.2006 with an assurance to return the same within a month and because of earlier acquaintance with the accused he paid the money. But on the pretext of other the accused did not returned the money to him and finally he delivered 3(three) cheques dated 02.05.2007,05.05.2007 and 07.05.2007 and while the cheque was deposited to the concerned bank the cheque was returned with an endorsement (insufficient fund). He has exhibited the three cheques vide Ext-1, 2 and 3, cheques return memo vide Ext-4 issued by UCO Bank, Rangiya Branch dated 21.05.2007. He issued Ext-5, legal notice demanding the return of money. He has admitted in the cross-examination that there was no return document regarding delivery of money and cheque was duly filled up by the accused. He has however denied the suggestion of the defence side that the aforesaid cheques were obtained by him by way of threatening. Further, he stated that he heard that the accused is a Sahara Agent and he sometimes deposited money in Sahara through the accused and other person also but there was no dispute as regard such deposit. He however denied the suggestion that due to such depositing of amount in /Sahara he has some dispute with the accused petitioner for which ultimately he took the cheques forcefully from the accused.

The PW-2 the bank officials of UCO Bank has testified to the fact supporting the complainant that the accused maintained an account in their bank and the aforesaid three cheques were deposited in their bank by the complainant but the same was dishonoured due to insufficient fund and same was intimated to the complainant through Ext-4, cheque return memo which was signed by the bank Manager, Tapan Das (signature is known to him). He has clarified that as the Bank Manager is on leave so he was deputed to give evidence.

The PW-3, Sanjay paul has stated that in his presence the complainant paid the aforesaid amount to the accused on 03.11.2006 on the assurance of the accused to return the same within a month but the same money was not returned in time and subsequently the accused issued the cheques for the said aforesaid amount of Rs.1,05000/-. It is stated that the complainant could not encash the cheque amount as the cheques were dishonoured. He has denied the suggestion of the defence side that as he worked under the complainant, so he has given false evidence in favour of the complainant.

In the instant case, the accused has not disputed the issuance of cheques and his signature thereof but his only contention is that the said aforesaid cheques were taken by the complainant by showing threat. The accused examined himself as DW -1 and deposed that he is an agent of Sahara. The complainant and his wife had two savings account at Sahara through his agency, at the rate of Rs.40/-(Rupees forty) only for each account per day i.e total Rs. 80/-(Rupees eighty) only per day. The complainant used to deposit money through his agency for about 2 ½ years. When he used to visit the complainant for collection of money, the complainant used to deposit and sometimes tell DW-1 to deposit money from his pocket. Sometimes he (DW-1) paid from his own pocket. One day at about 3.00 PM the complainant came alone to his (DW-1) house and wanted back the amount which he (PW-1) deposited at Sahara account through the agency of the accused. DW-1 expressed his inability to return the same as he had already deposited the money at Sahara office.PW-1 threatened DW-1 and directed DE-1 to issue cheque. As 'Bihari' people were being assassinated at that time at Tinsukia, DW-1 issued three numbers of cheque out of fear. On that very day, DW-1 went to UCO Bank, Rangia Branch and verbally informed its manager about the occurrence and requested him not to pay money. On the same day, DW-1 lodged an FIR too at Rangia PS but the complainant being rich person, police did not take any action against him. After about 15 (fifteen) days of taking away of cheques, DW-1 filed one complaint case CR No.257/07 in respect of forceful taking away of cheque by the complainant. The complainant also lodged an FIR against DW-1 and his brother Ramnath Shah in police station in respect of the occurrence of this case. His (DW-1) brother went to jail hajot in that police case. Police has given charge-sheet against DW-1 and his brother in that police case. Ext-(Ka) is the certified copy of the FIR Ext-(Kha) is the certified copy of the charge-sheet. Ext-(Ga) is the certified copy of forwarding of arrested accused. Ext-(Gha),(Gha-1),(Gha-2) are the savings deposit slip of Sahara of the complainant. He (DW-1) had never taken any money from the complainant and had signed the cheque out of fear.

From the defence taken by the accused it is apparent that although he has admitted about the issuance of cheque but tried to rebut the prosecution case by challenging that the cheque was issued on threat by the complainant, not against liability. By adducing his evidence he has referred to the complainant case filed by him about such forceful taking of cheque by the complainant. But things to be noted that said complaint that was filed by the accused/respondent after one month of occurrence and case was dismissed for default and hence it can be held that such allegation was not proved at all. On the other hand, under the provision of Section 118 and 139 of the NI Act a holder of cheque is a holder in due course unless properly rebutted by the accused. In the given case although the accused /respondent tried to rebut the case of the appellant but he failed to rebut the same by way of requisite evidence.

The contention of the respondent that he informed the bank authority about such forceful taking of cheques by the appellant immediately after the occurrence is also not proved, there being no any supporting evidence either oral or documentary. His evidence that he appraise the bank authority verbally also cannot be acted upon because a bank authority will not accept such verbal allegation of a person for stop payment of cheque unless some written document is filed. In the given background, it can be firmly held that the accused/respondent failed to rebut the case of the complainant within the purview of law.

On the other hand, the complainant has produced all the relevant documents and proved the fact that the cheques in question were issued by the accused persons against discharge of his debt. Only because the complainant/appellant did not examine the listed witness in support of his contention about taking of loan by the accused, the same cannot be discarded as a doubtful as has been contended by the accused/respondent. The learned trial court erred in law by not appreciating the matter in proper perspective by raising necessary presumption under the act, and has swayed by irrelevant consideration raising doubt upon the case of the appellant/complainant, while under the law, the court is bound to raise such presumption as has been indicated above rather than to appreciate the matter unlike criminal cases, which is required to be proved beyond all reasonable doubt.

Considering all entirety of the matter, it is found that the learned trial court has arrived at the decision which is not sustainable. Accordingly impugned order of trial court dated 20.10.2009 is hereby quashed and set aside. The accused/respondent convicted under Section 138 of NI Act and sentenced to pay a fine twice the cheque amount within a period of three months before the trial court in default RI for one year. Amount or fine be given to the appellant/complaints as compensation.

Return the LCR along with a copy of this order.