Suman Saha And Ors vs State Of Tripura

[1] This is an appeal under Section 378(4) of the Cr.P.C. from the order of acquittal dated 14.06.2017 delivered in NI 132 of 2013 by the Additional Chief Judicial Magistrate, Agartala, West Tripura.

[2] The appellant filed a complaint under Section 138 of the Negotiable Instrument Act, 1981 [the NI Act in short] for dishonour of two cheques bearing No.215681 and 215682 both dated 13.02.2013 for an amount of Rs.4,00,000/- [Rupees Four lacs], Rs.2,00,000/- by each cheque drawn on Tripura Gramin Bank, Old RMS Chowmuhani Branch. Those cheques were dishonoured for insufficiency of fund as evident from the return memo. In the complaint, it has been asserted that on the basis of a long standing relation, the complainant paid Rs.4,00,000/- to the respondent No.1, on being requested by him and on assurance that he would return the said amount to the complainant within 5-6 months. On 01.03.2013, the respondent No.1 issued two cheques bearing No.215681 and 215682 drawn on Tripura Gramin Bank, Old RMS Chowmuhani Branch, Agartala amounting to Rs.4,00,000/-. The said cheques were issued in favour of the complainant for liquidating the liability of the respondent No.1. By each of the cheques a sum of Rs.2,00,000/- was sought to be paid. The complainant deposited those cheques in his account in the United Bank of India, GB Hospital Branch. As stated earlier, both the cheques were dishonoured for insufficiency of fund in the account of the respondent No.1. Tripura Gramin Bank, Old RMS Chowmuhani Branch sent the report of dishonour. According to the complainant, on 07.03.2013 the United Bank of India, GB Hospital Branch informed the same by the return memo dated 23.05.2013. It has been clearly mentioned in the return memo that sufficient fund was not maintained in the account on which those cheques were drawn. On 26.06.2013 the complainant through his lawyer issued the demand notice for making the payment of the same amount as reflected in the said two cheques. According to the complainant, he could not collect the definite information whether the registered letter dated 26.06.2013 was delivered to the respondent No.1 or not. Even though the complainant‟s lawyer had sent a letter to the postal authority to confirm the delivery of the letter but till the day of filing the said complaint, such date could not be confirmed. On 05.07.2013 the complainant came to know that the demand notice was delivered on 01.07.2013 but the respondent No.1 according to the complainant requested him to wait for 10-15 days for payment. After lapse of 15 days the complainant contacted the respondent No.1. At that time, the respondent No.1 had strangely denied to make any payment. Cognizance of the complaint was taken and the substance of accusation as drawn under Section 251 of the Cr.P.C. was denied by the respondent No.1. In order to substantiate the incidence of dishonour of cheques by which the legal debt sought to be discharged by the respondent No.1, the complainant adduced 3[three] witnesses including himself as PW-1 and introduced 9[nine] documentary evidence including two cheques [Exbts.1 & 2]. But the respondent No.1 did not adduce any evidence. After the evidence was recorded at the instance of the complainant, the respondent No.1 as the accused was examined under Section 313 of the Cr.P.C. for having his response to the incriminating materials those surfaced in the evidence led by the complainant in the trial. On evaluation of the evidence, the trial court held that the complainant has failed to prove that the accused had issued the cheques in discharge of legal debt or liability. The trial judge after discussing the evidence has held as under:

(i) It cannot be said that the respondent No.1 issued the cheques in question to the complainant [the appellant] in discharge of legal debt or liability.

(ii) As per the available records and as per the Exbts.1,2,3 & 4 it has been established that the cheques had been deposited and returned dishonoured.

(iii) On perusing the Exbt.5, which is the original demand notice, it has surfaced that the demand notice had been sent to the respondent No.1 by post on 26.06.2013 and the return memo was issued on 23.05.2013. Thus, it appears that the complainant made the demand for payment of money from the respondent No.1 within 30 days from the date of dishonour of cheque.

(iv) It is apparent on the face of the record that the respondent No.1 had knowledge that the demand notice was delivered on 02.07.2013, but the demand was not met immediately or within the time as stipulated by Section 138 of the NI Act.

(v) The trial court has further observed as follows:

(1) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that amount for the discharge of any legally enforceable debt or other liability.

(2) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or with the period of its validity, whichever, is earlier.

(3) the cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the amount is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank.

(4) the payee or the holder in due course of the cheque makes demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid.

(5) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 30 days of the receipt of the said notice.

[3] Thereafter, on such observation as noted above, the trial court held that the accusation as made by the appellant could not be established and the complaint is not maintainable in law inasmuch as the holder in due course of the cheque did not file the complaint within 30 days.

Being aggrieved by that judgment, this appeal has been filed.

[4] Mr. B. Deb, learned counsel appearing for the appellant while making his submission has contended that the inference drawn by the trial court is grossly perverse inasmuch as the presumption under Sections 138 & 139 of the NI Act was not drawn without assigning any reasons even though after discharge of the initial burden by the complainant, the respondent No.1 has failed to show that he had no legal obligation to pay.

[5] Mr. Deb, learned counsel in order to buttress his submission has referred to the testimony of complaint [PW-1] where he had stated that the respondent had received the notice on 02.07.2013 [page-15 of the examination-in-chief] filed by an affidavit, but neither the respondent No.1 paid the amount mentioned in the cheque nor gave any reply in respect of enforceable debt. In respect of worth of extending loan the complainant failed to place any evidence to prove the worth. The Branch Manager, United Bank of India, GB hospital branch has admitted that two cheques were deposited by the complainant and those returned dishonored due to insufficiency of fund. Those cheques were identified by PW-2. PW-3 Subalesh Kr. Shil, Branch Manager of Tripura Gramin Bank, Agartala Branch has corroborated the fact of dishonor of cheque for insufficiency of fund.

[6] Mr. Deb, learned counsel has referred a decision of the apex court in Bir Singh vs. Mukesh Kumar [judgment and order dated 06.02.2019 delivered in Criminal Appeal Nos.230-231 of 2019] where referring to precedents viz. Hiten P. Dalal vs. Bratindranath Banerjee, reported in (2001) 6 SCC 16; State of Madras vs. Vaidyanatha Iyerm, reported in AIR 1958 SC 61; Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and another, reported in (2005) 5 SCC 294; Rajesh Ranjan Yada @ Pappu Yadav vs. CBI through its Director, reported in (2007) 1 SCC 70; Laxmi Dychem vs. State of Gujarat & Ors., reported in (2012) 13 SCC 375; Kumar Exports vs. Sharma Carpets, reported in (2009) 2 SCC 513; K.N. Beena vs. Muniyappan and Another, reported in (2001) 8 SCC 458; R. Vijayan vs. Baby and another, reported in (2012) 1 SCC 260; Raj Kumar Khurana vs. State (NCT of Delhi) & another, reported in (2009) 6 SCC 72; John k. John vs. Tom Varghese & another, reported in (2007) 12 SCC 714; Krishna Janardhan Bhat vs. Dattatraya G. Hegde, reported in (2008) 4 SCC 54; State of Punjab & others vs. Surinder Kumar & others, reported in (1992) 1 SCC 489 it has been held that the proposition of law which emerges from the aforementioned judgments is that the onus to rebut the presumption under Section 139 of the NI Act that the cheque has been issued in discharge of debt or liability is on the accused and the fact that the cheque may be post-dated does not absolve the drawer of a cheque form the penal consequences of Section 138 of the Negotiable Instruments Act. Later, it has been observed as follows:

"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.

If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.

It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.

Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.

The fact that the appellant-complainant might have been an Income Tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-accused should have given or signed blank cheque to the appellant- complainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them.

In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act.

In our considered opinion, the High Court patently erred in holding that the burden was on the appellant-complainant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the same. The finding of the High Court that the case of the appellant-complainant became highly doubtful or not beyond reasonable doubt is patently erroneous for the reasons discussed above." [Emphasis added]

[7] Mr. Deb, learned counsel on the basis of the said proposition has submitted that when the signature on the cheque put by the respondent No.1 has not been challenged, the trial court was under obligation to draw the presumption under Section 139 of the NI Act. In Anss Rajashekar vs. Augustus Jeba Ananth [judgment dated 18.01.2019 delivered in criminal appeal Nos.95-96 of 2019] the apex court has exposited the law in the same tune. It has been observed that the expression „unless the contrary is proved‟ as used in Section 139 of the NI Act implies that the presumption under Section 139 of the Act is rebuttable. Terming this a provision of "reverse onus clause", the three Judge Bench of the apex court has, referred Rangappa vs. Sri Mohan, reported in (2010) 11 SCC 441 to hold that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by preponderance of probabilities. It has been held in Rangappa (supra) as under:

"In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail."

It has been further held in Rangappa (supra) that the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. It is necessary to consider whether the presumption under Section 139 of the NI Act stands rebutted by the accused or not. It would be necessary to derogate the material which might be relied upon by the court to acquit the accused.

[8] Having relied on Bir Singh vs. Mukesh Kumar [judgment dated 06.02.2019 delivered in Criminal Appeal Nos.230-231 of 2019] the apex court in Uttam Ram vs. Devinder Singh Huddan & another, [judgment dated 17.10.2019 delivered in Criminal Appeal No.1545 of 2019] has held that so far the question of basic ingredients for drawing of presumption under Sections 118 and 139 of the NI Act is concerned, if it becomes apparent that the accused could not deny his signature on the cheques in question and it has been proved that when the cheques were presented to the bank within the period of their validity and those were returned unpaid for the reasons of insufficiency of fund in the said account or for that the account is closed the presumption of liability cannot be escaped. It is required to presume that the cheques in question were drawn for discharge of legal debt or liabilities and the holder of the cheques i.e. the complainant received the same in discharge of such debt or liabilities.

[9] Mr. S. Lodh, learned counsel appearing for the respondent No.1 has submitted that true it is that the signatures on the cheques were not challenged. Even the banker did not question the signatures of the complainant. PW-1 in the cross-examination has stated that the he runs an auto-rickshaw and on the evening only he opens his shop. PW-1 has also stated in the cross-examination that he had not met the accused on 01.03.2013, the day on which the cheques were issued. PW-1 has further stated that the cheques which have been submitted before the court, in such cheques it was subscribed the branch as Agartala. Except Exbts.1 & 2 [the said cheques], he has not submitted any cheque. PW-1 has further admitted that when the cheques were issued in his shop, the articles on stock were for Rs.2.5 lacs to Rs.3.00 lacs. Mr. Lodh, learned counsel has submitted that someone of that economic status cannot be believed to have extended a sum of Rs.4,00,000/-. Mr. Lodh, learned counsel has categorically submitted that the financial worth of the complainant cannot make the court believe that the complainant had provided the loan to someone for amount of Rs.4,00,000/- on the same day.

[10] In Basa Lingappa vs. Mudibasappa, reported in AIR 2019 SC 1983, where the apex court on revisiting the evidence had observed as follows:

"26. There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in examination-in-chief the complainant has not mentioned as to on which date, the loan of Rs.6 lakhs was given to the accused. It was during cross-examination, he gave the date as November, 2011. Under Section 118(b), a presumption shall be made as to date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post dated cheque was given to him in November, 2011 bearing dated 27.02.2012. Giving of a cheque on 27.02.2012, which was deposited on 01.03.2012 is not compatible with the case of the complainant when we read the complaint submitted by the complainant especially Para 1 of the complaint, which is extracted as below:-

„1. The accused is a very good friend of the complainant. The accused requested the Complainant a hand loan to meet out urgent and family necessary a sum of Rs.6,00,000/- (Rupees Six Lakh) and on account of long standing friendship and knowing the difficulties, which is being faced by the accused the complainant agreed to lend hand loan to meet out the financial difficulties of the accused and accordingly the Complainant lend hand loan Rs.6,00,000/- (Rupees Six Lakh) dated 27.02.2012 in favour of the Complainant stating that on its presentation it will be honored. But to the surprise of the Complainant on presentation of the same for collection through his Bank the Cheque was returned by the Bank with an endorsement "Funds Insufficient" on 01-03- 2012.‟

Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in his examination-in-chief regarding date on which loan was given on one side and what was said in cross-examination in other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply the notice denying the execution of cheque or legal liability. Even before the trial court, appellant- accused has not denied his signature on the cheque."

[11] Mr. Lodh, learned counsel has referred to the following passage of ANSS Rajshekar vs. Augustus Jeba, reported in AIR 2019 SC 942 as under:

"In Rangappa (supra) the appellant duly rebutted the presumption under Section 139 of the Act. His defence that there was an absence of a legally enforceable debt was rendered probable on the basis of the material on record. Consequently, the order of acquittal passed by the first appellate court was justified."

Mr. Lodh, learned counsel has further submitted that from the cross-examination of PW-2 [Tapas Choudhury] the following aspect can be noticed:

"As on 18.06.2016 the balance in the account of the complainant was below Rs.100/-."

The said witness however did not disclose the highest balance that was maintained in the account of the complainant. Thus, Mr. Lodh, learned counsel has contended that even if it is assumed that the cheques were issued by the respondent No.1, it has to be inferred that the complainant had no worth to extend a loan of Rs.4,00,000/- to the respondent No.1. The respondent No.1 did not make any attempt to show whether the signatures appearing on the cheques were his signatures or not. But the appellant has proved that the signatures appearing in the cheques were of the respondent No.1 as it is noticed that if the allegations are proved, then the presumption under Section 139 of the NI Act would have been drawn.

[12] On appreciation of the rival contentions raised by the learned counsel appearing for the parties, as well as on scrutiny of the evidence, the question that emerges for response is that whether the accused-respondent No.1 could rebut the fact in respect of a legally enforceable debt, by deterring presumption under Section 139 of the NI Act? If the question is rephrased it would read as follows:

Whether absence of a legally enforceable debt has been made probable on the basis of the material on record? The trial court has observed that the complainant did not have the financial capacity to extend the loan of Rs.4,00,000/- to the accused-respondent No.1. Therefore, it has been held that 'hence, it cannot be said that the accused has issued the cheques to discharge any legal debt or liability because the prosecution's story of the complainant suffers from some doubt and suspicion regarding the issuance of the cheque and also regarding the financial capability of the accused for lending money of Rs.4,00,000/- to the accused considering his business status.

Hence, considering all the facts and circumstances, this court come to the conclusion that as per the factual matrix it cannot be said that the accused issued the cheque in question to the complainant in discharge of any legal debt or liability.'

[13] There is no doubt that the cheques as issued by the complainant [the appellant herein] were dishonoured by the bank for insufficiency of fund. The further question that was considered by the trial court is that whether the complainant made the demand of the amount mentioned in the cheques within 30 days of receiving the information in respect of dishonour of cheques. The demand notice was sent by the complainant on 26.06.2013 and the return memo was issued on 23.05.2013. From the evidence it appears that after receipt of the demand notice which was delivered on 02.07.2013, the accused-respondent No.1 did not make payment to the complainant. The trial court has clearly observed that the court has condoned the delay that occurred in filing the complaint within one month from the day of expiry of 15 days from the day of receipt of the demand notice. Hence, the trial court has observed that the requirement of Section 138 of the NI Act for convicting any person has been complied but the complainant according to the trial court has failed to prove the existence of legally enforceable debt or liability and no presumption under Section 139 of the NI Act can be drawn.

[14] The findings in respect of conforming to the requirement is not under challenge. Hence, the solitary question as framed above is the foundation of challenging the order of acquittal dated 14.06.2017. This court finds that sufficient justification has been given by the trial court while drawing inference in respect of financial capacity of the complainant. Even if, the other inference is capable of being drawn, this court, in view of the settled position of law as enunciated by the apex court in Chandrappa & others vs. State of Karnataka, reported in (2007) 4 SCC 415 etc. should not embark upon to disturb the finding of acquittal recorded by the trial court. In Chandrappa (supra) the apex court has laid down the principle as under:

"Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court."

[15] That apart, in Rangappa (supra) the apex court has clearly held that it is the settled position of law for that rebutting the fact that might lead to the presumption under Section 139 of the NI Act, the standard of proof is of preponderance of probabilities. From the evidence of the complainant it has been shown that the debt, for discharge of which the cheques were issued may not be real, if seen in the light of the financial capacity of the complainant. Thus, in the considered view of this court, the accused-respondent No.1 has discharged his onus by creating a serious doubt in respect of financial capacity of the complainant.

[16] Having situated thus, this court is not inclined to disturb the finding of the trial court by acquitting the respondent No.1. Accordingly, this appeal fails and is dismissed.

Send down the LCRs forthwith.