Dipak Kumar Das vs Dilip Kumar Roy

Utpalendu Bikas Saha, J.—1. The instant revision petition is filed against the judgment dated 06.07.2010 passed by the learned Sessions Judge, South Tripura, Udaipur in Crl. A. No. 10(2) of 2010 dismissing the appeal and affirming the judgment dated 05.04.2010 passed by the learned Chief Judicial Magistrate, South Tripura, Udaipur, in C.R. Case No. 367 of 2007 sentencing the convict petitioner to suffer R.I for 6 months and to pay a fine of Rs. 4,50,000/- under Section 138 of the Negotiable Instruments Act, 1881 in default to suffer further R.I for one month.

Heard Mr. D. chakraborty, learned Sr. Counsel assisted by Mr. H. Laskar, learned counsel appearing for the petitioner and Mr. A. Das, learned counsel appearing for the respondent.

The case of the complainant respondent, in short compass, is that he has well acquaintance with the convict petitioner, Sri Dipak Kr. Das and there were monitory transactions between them. The convict petitioner in order to discharge his debts and liabilities towards the complainant respondent issued a cheque bearing No. S.B.00/202/968844 dated 17.03.2007 of Rs. 4,50,000/- to be drawn on the SBI, Udaipur Branch, South Tripura. On 05.04.2007, the complainant respondent presented the said cheque at Tripura State Co-operative Bank, Udaipur Branch, in his account No. CC 7/96/97. But on 13.04.2007, the State Co-operative Bank returned the cheque due to lack of fund in account of the convict petitioner bearing No. 01190011781 in the SBI, Udaipur Branch, South Tripura.

The complainant served a demand notice on 18.04.2007 upon the convict petitioner for the said amount of Rs. 4,50,000/-, but the accused did not respond though he received the notice on 21.04.2007.

Then the complainant respondent filed a complaint before the learned Chief Judicial Magistrate, South Tripura, Udaipur U/S 138 of the Negotiable Instruments Act (hereinafter, for short, referred to as ''N.I. Act'') on 15.05.2007 against the convict petitioner. The convict petitioner contested the case and on being examined u/s. 251 Cr. P. C., he pleaded not guilty and claimed to be tried.

The complainant respondent examined himself and another to prove the case. In his examination u/s. 313 of the Cr.P. C., the accused denied the veracity of the evidence of PWs and did not want to lead any evidence in his defence. The case of the accused petitioner is of total denial of the whole prosecution''s story and accordingly trial commenced.

To decide the instant proceeding, the trial court has framed two issues which are as follows:

"(I) Whether the accused Dipak Kr. Das, borrowed a sum of Rs. 4,50,000/- from the complainant with assurance to repay on demand and if so when?

(II) Whether the accused issued a cheque in favour of the complainant for an amount of Rs. 4,50,000/- and whether the cheque was bounced?"

PW-1 Shankar Lal Sarkar is the Manager of the State Co-operative Bank, Udaipur who deposed that he issued the letter to the complainant regarding dishonor of the cheque issued by the accused due to insufficiency of fund. He proved his said letter to the complainant as Exbt.1. He also identified the impugned cheque No. S.B.00/202/968844 dated 17.03.2007 and its counter foil, which are marked as Exbt. 2 and 3. He also identified the statement of account marked as Exbt. 4 of the accused person issued by the SBI, Udaipur as the cheque was against SBI, Udaipur. The statement shows insufficiency of fund.

P.W. 2 the complainant respondent deposed in the tune of his complaint.

Considering the above evidence and hearing the learned counsel of the parties, the trial court convicted the accused petitioner under Section 138 of the N.I. Act and sentenced thereto as stated supra.

Being aggrieved by and dissatisfied with the judgment and order of the learned trial court dated 5.4.2010, the accused petitioner preferred an appeal before the learned Sessions Judge, South Tripura, Udaipur (at present Gomati District). The learned Sessions Judge after hearing the parties upheld the judgment and order of the learned trial Court and dismissed the appeal. Hence the instant revision petition.

Mr. Chakraborty, the learned Sr. counsel for the accused petitioner submits that the accused petitioner received a loan of Rs. 5000/- from the complainant respondent and returned the amount of loan by signing a blank cheque and the body of the cheque was filled up by the complainant respondent. Although the complainant respondent denied the defence case of the accused petitioner in his cross-examination, but he neither disclosed the name of the person who filled up the body of the said cheque, nor did he adduce the scribe thereof for proving the handwriting in the cheque. As such, the contents of the cheque have not been proved.

He further submits that as per Section 139 of the N.I. Act, there is presumption in favour of the complainant-respondent that the cheque was issued in favour of the complainant-respondent to discharge the debts and other liabilities, but there is no presumption in respect of the amount of liabilities. Therefore, it is obligatory on the part of the complainant respondent to prove the exact amount of discharge for which the cheque was issued.

It is also contended by the complainant-respondent in his cross examination that he had no commercial transaction with the convict petitioner. Therefore, it is the complainant respondent who has to say when, where and for what purpose the alleged amount of Rs. 4,50,000/- was paid by the complainant-respondent to the convict petitioner. Moreover, there is no written agreement between the complainant respondent and the convict petitioner regarding the payment and the mode of repayment of the aforesaid amount and the complainant respondent had not obtained any money receipt as well.

The learned Sr. counsel for the convict petitioner further submits that as per Section 269SS of the Income Tax Act 1961, loan can be paid to the borrower for any amount exceeding Rs. 20,000/- only by A/c payee cheque or bank draft and cash payment of loan exceeding Rs. 20,000/- is prohibited whereas the case of the complainant respondent that he paid Rs. 4,50,000/- to the convict petitioner as loan from which it can be presumed that the payment of Rs. 4,50,000/- to the convict petitioner is absolutely false and the complainant respondent utilized the signed blank cheque handed over to him by the convict petitioner for his wrongful gain. Therefore, the trial court ought to have taken notice of that aspect and that no instrument had entered between the parties in payment of the aforesaid amount of Rs. 4,50,000/- when there is no relationship between the parties. Due to these legal and factual infirmities in the prosecution case, the order of sentence passed by the learned trial Court and affirmed by the appellate court is not sustainable and thus liable to be set aside.

The learned counsel for the convict petitioner in support of his contention has placed reliance on the decisions of the Apex Court in Reverend Mother Marykutty v. Reni C. Kottaram and anr, , (2013) 1 SCC 327; in Lalit Kumar Sharma and anr v. State of Uttar Pradesh and anr, , (2008) 5 SCC 638; and also in Krishna Janardhan Bhat v. Dattatraya G. Hedge, , (2008) 4 SCC 54.

On the other hand, Mr. Das, the learned counsel for the respondent submits that the learned trial court has rightly passed the order of conviction and sentence as it has been proved that the convict petitioner has issued the aforesaid cheque to discharge his liability to repay the loan taken from the complainant respondent which on submission was dishonored by the Bank with an endorsement "Full covered not received". The above facts have been proved by the evidence produced by the complainant respondent. So a presumption can be drawn in favour of the complainant-respondent that the cheque was issued towards legally recoverable debt.

In support of his contention, he has referred to Section 138 of the N.I. Act, 1881 which reads as follows:

"138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

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

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.--For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability".

Mr. Das has also placed reliance on the decisions of the Apex court in K. Bhaskaran v. Sankaran Vaidhyan Balan and anr, , AIR 1999 SC 3762 and in K.N. Beena v. Muniyappan and anr, , AIR 2001 SC 2895.

This court has gone through the judgment of the Apex Court referred to as well as the law reports cited. According to this Court, the facts of those cases are totally different than the case in hand. Not only that, in case of Lalit Kr. Sharma and anr. (supra), during the pendency of the complaint petition, there was an agreement between the parties and it was agreed that if the cheque for a sum of Rs. 5,02,050 is issued, the complaint petition would be withdrawn and on the basis of the said agreement, a cheque was issued for the said amount which was also on presentation returned with the remark "insufficient fund". The second cheque was issued for the purpose of arriving at a settlement and not in discharge of the debt or liability of the company of which the appellants were said to be the directors. In the case in hand, there was no such agreement between the parties for settlement of the issue. Thus, this case has no direct bearing in the case in hand.

In K. Bhaskaran (supra), relied upon by Mr. Das, the Apex Court held:

"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption."

In Apan Kumar Das v. Sri Dilip Kr. Roy, the present petitioner, (Crl. Rev. P. 07 of 2010), this court after considering the evidence therein, dismissed the petition affirming the order of the courts below. In that case also, the petitioner did not deny that he had issued a cheque of Rs. 5,00,000/- in favour of the complaint-respondent therein and the said cheque was dishonored for insufficiency of the fund in his account. His only plea was that he has taken an amount of Rs. 10,000/- from the complainant respondent and has already paid the entire amount. In the instant case also the petitioner admitted that he had taken a loan of Rs. 5000/- from the complainant-respondent and repaid the same by signing a blank cheque. It is very difficult to accept that contention. Why the petitioner while took a loan of Rs. 5,000/- gave a cheque of Rs. 4,50,000/- had he not taken loan as contended by the complainant respondent.

Upon going through the aforesaid provisions of the NI Act, it appears that if a person commits an offence under Section 138 of the NI Act, then the court has the power to punish him with imprisonment for a term which may extend to 2 years or with fine which may extend twice to the amount of the cheque or with both. In the instant case, the accused petitioner did not deny that he had issued the cheque of Rs. 4,50,000/- in favour of the complainant respondent and the said cheque was dishonoured for insufficiency of fund in his account. His only plea was that he had taken a loan of Rs. 5000/- from the complaint-respondent and repaid the same by signing a blank cheque. Now question arises, if the convict petitioner did not take any loan from the respondent complainant, then why he had issued the cheque for an amount of Rs. 4,50,000/-. It is also not the case of the petitioner that the complainant respondent did not comply with the statutory requirements before lodging the complaint.

In the instant case, admittedly the cheque amount is Rs. 4,50,000/-. The learned trial Court found the convict petitioner guilty for the offence under Section 138 of the N.I. Act and sentenced him to suffer R.I. for six months and to pay a fine of Rs. 4,50,000/-, i.d. to suffer for further one month.

This Court has gone through the evidence on record as well as judgments passed by both the appellate court and the trial Court. According to this Court, the learned trial court as well as the learned Appellate Court did not commit any wrong in passing the judgment.

With the above observation, the instant criminal revision petition is dismissed. The order dated 6.8.2010 passed by this court in C.M. Appl. 165 of 2010 allowing the convict petitioner to remain on previous bail stands vacated. The learned trial Court shall take appropriate steps in accordance with law.

Send down the L.C. records along with a copy of this judgment.