in the court of judicial magistrate first class at ...golaghatjudiciary.gov.in/jmnt/2015/june/mn...

CR Case No.1013 OF 2010 of 22

IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS AT

BOKAKHAT, DISTRICT GOLAGHAT

C.R.CASE.No. – 1013/2010

U/S 138 N.I. Act

Smti Sushma Singhania

………………. Complainant

-Versus-

Sri Parag Saikia

………… accused person.

Present :- Saptarshi Garg, B.A.LL.B, A.J.S. J.M.F.C, Bokakhat.

Advocate appearing for the Complainant:- Mr. S. Baruah, Mr. R.P Jaiswal, Mr. U.Phukan.

Advocate appearing for the accused:- Mr. G.K. Baruah, Mr.D.P. Jaiswal, Mr. B.Dutta.

Dates of Prosecution evidence:- 06/11/11, 20/01/12, 08/01/14, 24/02/14 and 19/09/14.

Dates of recording 313 Statement of the accused persons:- 27/02/15.

Date of Argument:- 29/05/15

Date of delivering Judgment: - 17/06/15

J U D G M E N T

1. Prosecution case in brief is that on 13-05-2010, one Smti Sushma Singhania, proprietor of

Nahorjan Tea Estate, Bokakhat has lodged a complaint before learned Chief Judicial

Magistrate, Golaghat alleging inter alia that the accused Sri Parag Saikia, M/D of M/S

Mrityunjoy Tea Co. Pvt. Ltd. (Athabari Tea Estate), Golaghat taking advantage of long

standing acquaintance, approached the complainant for a loan of Rs. 10,00,000.00 (Rupees

ten lakhs only) showing cause of his financial hardship. And on 10/12/04 the complainant

gave a loan to the accused by an account payee cheque of Rs. 10,00,000.00 (Rupees ten

lakhs only) on good faith due to business relationship. Thereafter, on 27/09/09 the accused

issued an account payee cheque bearing No. 366729 dated: 27/09/09 of Rs. 6,00,000.00

(Rupees six lakhs only) drawn on Indian Bank, Jorhat Branch to the complainant as part

repayment of his loan. On 29/10/09 the complainant deposited the said cheque for payment

with Indian Overseas Bank, Jorhat Branch, but the said cheque was returned unpaid to the

complainant due to insufficient balance in the account of the accused person. The accused

was verbally informed about the same by the complainant, then the accused apologized and


on 10/11/09 requested the complainant to re deposit the same for fresh clearance and also

issued another cheque bearing No. 366730 dated 10/11/09 of Rs. 4,00,000.00 (Rupees four

lakhs only) drawn on Indian Bank, Jorhat Branch. Therafter, when both the cheques were

deposited with Indian Overseas Bank, Jorhat Branch on 24/03/2010 for fresh clearance, both

the cheques were dishonoured and returned unpaid on 25/03/10 with the remarks “Exceed

Arrangement”.

2. On this, on 01.04.2010, complainant served a demand notice through her Advocate per

registered A/D post, asking the accused to pay the amount of the cheque within fifteen days

of receipt of the notice. The said notice was received by the accused on 09/04/10 as a

confirmation slip was issued by the post master. On receipt of the said notice, the accused

did not pay the amount and also failed to reply to the demand notice, as such the

complainant filed this case within the period of limitation.

3. On receipt of the above complaint, learned Chief Judicial Magistrate, Golaghat transferred

the same to the court of learned J.M.F.C, Golaghat for disposal. After making enquiry u/s

200 and 202 Cr.P.C. vide order dated 20-05-2010, summons were issued upon the accused

for the offence u/s 138 of N.I. Act. In pursuant to the Court process, accused Sri Parag Saikia

appeared before this court and was allowed to remain on bail. Vide order dated 07-01-2011,

substance of accusation u/s 138 of N.I. Act were read over and explained to the accused to

which he pleaded not guilty. Thereafter after the establishment of this court of JMFC,

Bokakhat, on 19/09/14 this case was transferred to this court for disposal as this court has

the jurisdiction to try this case.

4. During trial complainant Sushma Singhania examined herself as P.W.1 and her husband

Ashok Singhania as P.W.2, Sri Simanta Sarmah, Manager of Indian Overseas Bank, Jorhat

Branch as P.W. 3, Sri Hirok Jyoti Kachari, Asstt. Manager of Indian Overseas Bank, Jorhat

Branch as P.W. 4, Sri Puneswar Neog, Peon of Athabari Post Office as P.W. 5.

5. On completion of prosecution evidence, accused was examined u/s 313 Cr.P.C. Accused

declined to adduce defence witness. Accused accepted that he had good relation with the

complainant relating to business purpose till the year 2001, he declined the fact that he

received demand/pleader’s notice from the complainant. He further admitted that he had

business relation with Ashok Singhania, the husband of the complainant in the year 1996,

1997 and 1998 and Ashok Singhnia used to collect blank cheques for security in terms of

agreement and those cheques were misused by the complainant.

6. Defence case as revealed from the trend of cross-examination, and answers given in 313

Cr.P.C, it appears accused denied the averments made in the complaint petition as well as

the evidence of the prosecution side. Accused accepted that he had good relation with the

complainant relating to business purpose till the year 2001, he declined the fact that he

received demand/pleader’s notice from the complainant. He further admitted that he had

business relation with Ashok Singhania, the husband of the complainant in the year 1996,

1997 and 1998 and Ashok Singhnia used to collect blank cheques for security in terms of

agreement and those cheques were misused by the complainant. Taking advantage of blank


signed cheques, said complainant with malafide intention forged his signed cheques in

collusion with the complainant for wrongful gain of the complainant. The accused has

denied of taking any loan from the complainant. The accused also denied the averments of

issuing the cheque in question in discharge of debt towards the complainant.

7. I have heard and seen the written arguments of the complainant and oral arguments of the

learned counsels for both the sides at length and gone through the case records. I have also

considered the submissions of both the sides and the case law cited by learned Advocates

for both the sides in support of their plea.

8. During argument hearing learned Advocate for the complainant and accused has cited the

following reported cases in support of his submissions on different aspects of fact and law.

Case Laws submitted/relied by complainant side:-

i. Bhaskaran vs Sankaran Vaidhyan Balan and Anr. [(1997) 7 SCC, 510],

ii. Vinod Shivappa vs Nanda Belliappa [(2006) 6 SCC 456],

iii. C.C Alavi Haji vs Palapetty Muhammad and Anr. [SAR 2007, page 768],

iv. Rangappa vs Sri Mohan [SAR 2010 (Crl.) page 568],

v. Hiten P Dalal vs Bratindranath Banerjee [(2001) 6 SCC 16].

Case Laws submitted/relied by accused side:-

i. Amuya Patowary vs Amarendra Choudhury [2013 (5) GLT 201],

ii. John K. Abraham vs Simon C. Abraham and Anr. [ 2014 Cr.L.J 2304].

9. Considering the facts of the case and submissions of learned Advocate for both the sides,

the following points are formulated for just decision of the case.

10. POINTS FOR THE DETERMINATION ARE:

i) Whether the accused in discharge of his lawful debt issued two cheques No.

366729 dated 27-09-2009 drawn on Indian Bank, Jorhat Branch for the amount of

Rs. 6,00,000.00 (Rupees six lakhs) and cheque No. 366730 dated 10-11-2009 drawn

on Indian Bank, Jorhat Branch for the amount of Rs. 4,00,000.00 (Rupees four

lakhs) to the complainant?

ii) Whether cheque No. 366729 dated 27-09-2009 and cheque No. 366730 dated

10/11/09 were bounced due to ‘exceeds arrangement’ in the bank account of

accused?

iii) Whether a valid notice u/s 138 of N.I. Act was served upon the accused?

iv) Whether the complaint was filed within the period of limitation?

v) Whether the debt is barred by limitation?


11. DECISION AND THE REASONS THEREON

12. Before going into the discussion of evidence on the points formulated above and also the

principles of law as applicable in this case, I would like to briefly summarize the evidence on

record for better understanding of dispute in question.

13. PW 1 Smti Sushma Singhania in her evidence deposed that she is the complainant in this

case. The accused who is the managing director of M/S Mrityunjoy Tea Co. (P) ltd. Situated

at Athabari, Golaghat and also a tea planter by occupation. PW 1 also admitted that she is

also a tea planter by occupation as well a partner of M/S Kaziranga Tea Manufacturer

situated at Nahorjan, Bokakhat, Dist: Golaghat, having its Head Office as Tinsukia, Assam

doing trading of green tea leaves. PW 1 stated that the accused has been maintaining a good

business transaction with her business by supplying green tea leaves as such both of them

were maintaining good relationship. PW 1 further stated that, in the month of December,

2004 the accused person approached to her for providing financial assistance of Rs.

10,00,000.00 (rupees ten lakhs only), by way of loan and advances, showing cause of his

financial hardship to run his business. Therefore, considering the good business relationship,

on 10/12/2004 she gave financial assistance on good faith by way of loan and advances with

an amount of Rs. 10,00,000.00 (rupees ten lakhs only) by an account payee cheque bearing

No. 465571 dated 10/12/2004. The accused acknowledging the receipt of the said loan

issued statement for confirmation of Account duly signed by him. She further deposed that

on her repeated demands to repay the loan the accused issued an account payee cheque on

27/09/2009 bearing No 366729 for Rs. 6,00,000.00 (rupees six lakhs only) out of the total Rs.

10,00,000.00 (rupees ten lakhs only) to be drawn on Indian Bank, Jorhat Branch, in her

favour to discharge his legally enforceable liability and promised to repay the balance

anount of Rupees four lakhs on the next month. Thereafter, when the said cheque was

deposited with Indian Overseas Bank, Jorhat Branch, it returned unpaid to her on

29/10/2009 due to insufficient balance in the account of the accused person. The said was

informed to the accused verbally on which the accused apologized and requested her to

redeposit the cheque on 10/11/2009 for fresh clearance and he also issued another cheque

bearing No. 366730 dated 10/11/2009 drawn on Indian Bank, Jorhat Branch for the balance

of Rs. 4,00,000.00 (rupees four lakhs only) against discharging his liability of the loan. As per

the instruction of the accused, both the cheques were deposited with Indian Overseas Bank,

Jorhat Branch for fresh clearance but both the cheques returned unpaid to her on

12/12/2009 with remarks “exceed arrangement”. Again the said was informed verbally to

the accused and he again apologize and instructed to re deposit both the cheques again for


clearance. Relying on his words again both the cheques were re-deposited with Indian

Overseas Bank, Jorhat Branch on 24/03/2010 for fresh clearance and again both the cheques

were returned unpaid to her on 25/03/2010 with remarks “exceed arrangement”.

Thereafter, on 01/04/2010 a pleader’s notice was issued to the accused through registered

A/D, from Bokakhat Post Office demanding to repay the amount of Rs. 10,00,000.00 (rupees

ten lakhs only) from him within 15 days from the receipt of the notice. She further stated

that on 09/04/2010 a confirmation slip has been issued by the concerned Postmaster.

However, despite receiving the notice the accused neither replied nor complied to the

notice. Thereafter, on expiry of the 15 day from the receipt of the notice and within the

period of limitation the case was filed.

She exhibited:- Statement of Confirmation of account issued by the accused as Exhibit 1,

the cheque bearing No. 366729 dated 27/09/09 for Rs. 6,00,000.00 (rupees six lakhs only)

as Exhibit 2, the cheque returning memo dated 29/10/2009 as Exhibit 3, the cheque

bearing No. 366730 dated 10/11/09 for Rs. 4,00,000.00 (rupees four lakhs only) as Exhibit

4, the cheque returning memo dated 12/12/2009 as Exhibit 5, the cheque returning memo

dated 25/03/2010 as Exhibit 6, The cheque returning Memo dated 25/03/2010 as Exhibit

7, postal receipt as Exhibit 8 and the confirmation slip regarding delivery of lawyer’s notice

as Exhibit 9, Exhibit 10 (a),(b) and (c), Copy of Income tax return for assessment year 2005-

06 of the complainant and balance sheet, Exhibit 11 (a),(b) and (c), Copy of Income tax

return for assessment year 2010-11 of the complainant and balance sheet.

In her cross examination she stated that on 21/09/2009 the accused gave her a

cheque (Exhibit 2) of Rs. 6,00,000.00 (Rupees six lakhs only) but she do not remember when

that cheque was submitted for encashment. But later on she stated that on 25/03/2010 that

cheque was submitted at Indian Bank, Jorhat Branch for encashment. She admitted that she

is a housewife and her husband has a tea garden. She further stated that she knows the

accused and the transaction took place on 10/12/2004, but she admitted that on that date

the accused had not given her a post dated cheque. She does not remember on what date

the accused gave her the cheque of Rs. 4,00,000.00 (Rupees four lakhs only)(exhibit 4). She

admitted that the amount was given by her husband to the accused. She also stated that on

which date the Exhibit 4 was given in the bank for encashment and when it was returned

unpaid she does not remember. She also stated that how many times the cheque (exhibit 4)

was deposited in the bank for encashment she does not remember. She further admitted

that on which bank the cheques i.e., Exhibit 2 and 4 were submitted for encashment she do

not know because both the cheques were deposited in the bank by her husband. She also


stated that all the transactions were done by her husband. And also admitted that no legal

notice was given by her to the accused demanding the money. She also stated that her

education qualification is B.A pass. The money was demanded by her husband from the

accused verbally. She also admitted that through the advocate her Evidence in chief was

prepared by her husband and she signed on it after reading it. She stated that on

13/05/2010 this case was filed and she do not know whether her husband took any written

note from the accused before giving the loan/money or not. She also admitted that who

entered the details in the cheques i.e., Exhibit 2 and 4 she do not know and it will be known

to her husband because the transactions were done by her husband. She declined the

suggestions put by the defence that the accused did not take any money from her, and

without any locus standi she filed this case.

14. PW 2 Ashok Singhania in his evidence deposed that he is the director of Nahorjan Tea Estate

and a tea planter by occupation. The complainant is his wife and both of them live together.

The complainant is also a tea planter by profession and a partner of M/S Kaziranga Tea

Manufacturers at Nahorjan, Bokakhat. He further stated that the accused is a director of

M/S Mrityunjoy Tea Co. (P) ltd situated at Athabari, Golaghat and also a tea planter by

profession and also his good friend and also had a good business relationship with his family

as the accused supplied green tea leaves. He further admitted that he is well acquainted

with the facts and circumstances of this caseand the complainant who is wife takes all

decision by consulting with him, moreover her admitted that he manages and control her

entire business and take reasonable steps on her behalf for the entire management of her

business. He further stated that in the month of December, 2004 the accused person

approached the complainant for providing financial assistance of Rs. 10,00,000.00 (rupees

ten lakhs only), by way of loan and advances, showing cause of his financial hardship to run

his business. Therefore, considering the good business relationship, on 10/12/2004, the

complainant gave financial assistance on good faith by way of loan and advances with an

amount of Rs. 10,00,000.00 (rupees ten lakhs only) by an account payee cheque bearing No.

465571 dated 10/12/2004. The accused acknowledging the receipt of the said loan issued

statement for confirmation of Account duly signed by him. That on repeated demands by

the complainant to repay the loan the accused issued an account payee cheque on

27/09/2009 bearing No 366729 for Rs. 6,00,000.00 (rupees six lakhs only) out of the total Rs.

10,00,000.00 (rupees ten lakhs only) to be drawn on Indian Bank, Jorhat Branch, in her

favour to discharge his legally enforceable liability and promised to repay the balance


amount of Rupees four lakhs on the next month. Thereafter, when the said cheque was

deposited with Indian Overseas Bank, Jorhat Branch, it returned unpaid to her on

29/10/2009 due to insufficient balance in the account of the accused person. The said was

informed to the accused verbally by the complainant on which the accused apologized and

requested her to redeposit the cheque on 10/11/2009 for fresh clearance and he also issued

another cheque bearing No. 366730 dated 10/11/2009 drawn on Indian Bank, Jorhat Branch

for the balance of Rs. 4,00,000.00 (rupees four lakhs only) against discharging his liability of

the loan. As per the instruction of the accused, both the cheques were deposited with Indian

Overseas Bank, Jorhat Branch for fresh clearance but both the cheques returned unpaid to

her on 12/12/2009 with remarks “exceed arrangement”. Again the said was informed

verbally to the accused and he again apologize and instructed to re deposit both the

cheques again for clearance. Relying on his words again both the cheques were re-deposited

with Indian Overseas Bank, Jorhat Branch on 24/03/2010 for fresh clearance and again both

the cheques were returned unpaid to her on 25/03/2010 with remarks “exceed

arrangement”. Thereafter, PW 2 stated that on consultation with him the complainant

appointed advocate R.P Jaiswal and a pleader’s notice on 01/04/2010 was issued to the

accused through registered A/D, from Bokakhat Post Office demanding to repay the amount

of Rs. 10,00,000.00 (rupees ten lakhs only) from him within 15 days from the receipt of the

notice. He stated that on 09/04/2010 a confirmation slip has been issued by the concerned

Postmaster. However, despite receiving the notice the accused neither replied nor complied

to the notice. Thereafter, on expiry of the 15 day from the receipt of the notice and within

the period of limitation the case was filed.

In his cross examination he stated that he has not submitted any documents to show

that he is the Director of Nahorjan Tea Estate. He further stated that M/S Kaziranga Tea

Manufacturing partnership firm consists of 3 partners namely Smti Sushma Singhania, Smti

Saroj Singhania and Smti Babita Singhania. And he stated that the alleged transaction by the

complainant with the accused was done on her personal capacity. He stated that he is well

acquainted with the signature of accused Parag Saikia. He admitted that the signature in

Exhibit 1 does not tally with Exhibit 2, and the Exhibit 1 was executed on 122/04/2005. He

also admitted that in Exhibit 1 there is the original signature of the complainant as he could

identify, but there is no official seal also he identified the Income Tax Permanent Account

No. AUKPS9371 (PAN No.)is that of Sushma Singhania. He declined the suggestion of the

defence that Exhibit 1 is not exhibited by the accused. He do not know how many directors

were there in Mrityunjoy Tea Company. He further deposed that he and his wife


(complainant) instructed Advocate R.P Jaiswal to issue notice to the accused for demanding

the cheques/loan amount. He declined the suggestion of the defence that no demand notice

was issued by his wife through advocate to the accused. He further declined the fact that the

cheques in question in this case was not issued by the accused in discharge of legally

enforceable right, and the accused did not took any loan from the complainant on

10/12/2004 and there is no business transactions between the complainant and the

accused. He also admitted that the accused sometimes took advance amount from Nahorjan

T.E and Kaziranga Tea company. He further declined the suggestion of the defence that

blank cheques were taken from the accused when advances against supply of green tea

leaves are given. He further declined that the cheques in questions are blank cheques issued

to him signed by the accused as security which was misused by his wife for ulterior gain and

he also declined that he is not well acquainted with the facts and circumstances of the case

and only for his wife he is deposing falsely.

15. PW 3 Sri Simanta Sharma, Manager Indian Bank, Jorhat Branch in his evidence deposed that

he came to this court for deposing his evidence after receipt of the summons. He further

deposed that he brought the cheque return register of Indian Bank, Jorhat Branch. He

admitted that account no. 830334256 in his bank is that of Parag Saikia, Propreitor of

Mrityunjoy Tea Company Pvt. Ltd. He identified the cheques Exhibit 2 and 4 as the cheques

of his branch and both the cheques were issued by Parag Jyoti Saikia in favour of Sushma

Singhania. Exhibit 2 is for Rupees six lakhs issued on 27/09/2009 and Exhibit 4 is for Rupees

four lakhs issued on 10/11/2009. He also stated that the bank statement from 24/03/10 to

26/03/10 of the account number mentioned in Exhibit 2 and 4 was brought by him to the

court. He further stated that Exhibit 6 was returned on 25/03/10 by Indian Overseas Bank,

Jorhat Branch and the same is mentioned in the cheque return register which he has

brought. He also stated that through Exhibit 7 dated 25/03/10 the return memo of the

cheque of Rupees four lakh was issued and the same is also mentioned in the register. He

admitted that both the cheques i.e., Exhibit 2 and 4 were dishounoured due to “exceed

arrangement”.

He exhibited:- Exhibit 12 as the cheque return register and Exhibit 12 (1) as the relevant

part of it in this case.

In his cross examination he admitted that at the time of dishonor of the Exhibit 2

and 4 he was not at Jorhat Branch. He also admitted that in Exhibit 12 there is no

certification by any officer and also how many pages are there is no mention. He stated that

Exhibit 12 is maintained by Asstt. Branch Manager, but there is signature or stamp of Asstt.


Branch Manager. He declined the suggestion of the defence that Exhibit 12 is not a register

of the Branch and Exhibit 12 is not admissible according to Bankers evidence Act. He also

declined that the account in question was in the name of M/S Mrityunjoy Tea Company.

16. PW 4 Sri Hirak Jyoti Kachari, Asstt. Manager (P), Indian Overseas Bank, Jorhat Branch is his

evidence deposed that he was authorized by the Manager. He stated that he brought the

cheque return register, cheque return folio, cheque return book and bank statement of

account SB 301 from 01/01/09 till 22/02/14. The said account is in the name of Sushma

Singhania R/o Nahorjan Tea Estate. He admitted that on 25/03/10 cheques No. 366729 for

Rupees six laks and Cheque No. 366730 for Rupees four lakhs were deposited against the

said bank account, when both the cheques were sent to Indian Bank, Jorhat Branch for

clearance both returned unpaid quoting “exceed arrangement”.

He exhibited:- Exhibit 13 as the authorization letter,

Exhibit 15 as Intimation letter for “exceed arrangement” of rupees six lakhs by Indian

Overseas Bank. Exhibit 15 (1) as the signature of Manager Dwipen Das he identified.

Exhibit 16 as Intimation letter for “exceed arrangement” of rupees four lakhs by Indian

Overseas Bank. Exhibit 16 (1) as the signature of Manager Dwipen Das he identified.

Exhibit 17 is the cheque return register certified by Branch manager with seal having pages

from 1-100, page 52-53 relevent pages.

Exhibit 18 is the cheque delivery book attested by Branch manager, the relevent pages

Exhibit 18 (1).

Exhibit 14 is the Bank account statement of Sushma Singhania, Exhibit 14(1), (2) relevent

pages.

In his cross examination he stated that there is no account in his bank by the name

of Mrityunjay Tea Company and at the time of the dishonour of the cheques he was not

present in the branch. He admitted that in Exhibit 14 the name of Sushma Sighania or the

bank name was not mentioned. He also admitted that in Exhibit 14 it is not written as

attached but there is seal and in Exhibit 17 it has been written as attached and not written

as certified to be true. He declined the suggestion of the defence that the documents he

produced in the court were not that of the bank.

17. PW 5 Sri Puneswas Neog, Peon Athabari Post Office in his evidence deposed that he came to

the court after receipt of the summons. And the post master authorized him. He stated that

Exhibit 9 was furnished from Kamarbandha Ali Sub-post office. He admitted that in Exhibit

20 it is not clearly visible the seal, date and the date of receipt. He stated that Exhibit 9 is the

detail maintained in his post office.


He exhibited:- Exhibit 19 Authorization letter.

Exhibit 20 delivery report, Exhibit 20 (1) signature of Parag Saikia.

In his cross examination he stated that registered letters if found are maintained in

register, but the said register was not brought by him. He admitted that the details

mentioned in Exhibit 9 are extracted from that register. Exhibit 20 is the document kept my

Bokakhat Post master. He admitted that in Exhibit 20 there is no endorsement that he was

allowed to deliver the letter. He declined the suggestion of the defence that he did not went

to deliver the letter to Parag Saikia. He admitted that he could not always remember the

signatures of recipient. He further declined the suggestion of the defence that Exhibit 20(1)

is not the signature of Parag Saikia and the Exhibit 20 is not a document of the post office.

18. Now let us look at legal aspects which have bearings in this case. In a case u/s 138 of N.I. Act,

in view of availability of presumptions u/s 118 and 139 of N.I. Act, regarding issuance of

cheque in discharge of debt is in favour of the payee. The primary burden of the

complainant is to prove receipt of cheque in discharge of a debt, deposit of the cheque for

collection, dishonour of the said cheque, issuance of notice for demand to pay the cheque

amount within stipulated period and nonpayment by the accused. However, presumption

u/s 118 and 139 of N.I. Act are rebuttable in nature and accused can either by bringing some

materials from prosecution evidence or by adducing defence evidence can rebut the

presumption. In case of successful rebuttal against the presumption as provided u/s 118/139

of N.I. Act by the drawer, the burden again shifts upon the payee/complainant to prove his

case beyond all reasonable doubt.

19. In the reported case of M.S. Narayana Menon @ Mani -vs- State of Kerala and Anr. [(2006)

6 SCC 39] Hon’ble Supreme Court of India held that:

“17. Applying the said definitions of proved or disproved to the principle behind Section 118(a)

of the Act, the court shall presume a negotiable instrument to be for consideration unless and

until after considering the matter before it, it either believes that the consideration does not

exist or considers the non-existence of the consideration so probable that a prudent man

ought, under the circumstances of the particular case, to act upon the supposition that the

consideration does not exist. For rebutting such presumption, what is needed is to raise a

probable defence. Even for the said purpose, the evidence adduced on behalf of the

complainant could be relied upon. This Court clearly laid down the law that standard of proof

in discharge of the burden in terms of Section 139 of the Act being of preponderance of a

probability, the inference therefore can be drawn not only from the materials brought on

record but also from the reference to the circumstances upon which the accused relies upon.

http://indiankanoon.org/doc/533881/


Categorically stating that the burden of proof on accused is not as high as that of the

prosecution, it was held;”

20. In the reported case of Kamala S–vs-Vidyadharan MJ [(2007) 5 SCC 264] Hon’ble Supreme

Court of India held that:

“10.The Act contains provisions raising presumption as regards the negotiable instruments

under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are

rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts

and circumstances of each case.”

21. It the reported case of Krishna Janardhan Bhat -vs- Dattatraya G. Hegde [AIR 2008 SC 1325]

a Division Bench of Hon’ble Supreme Court of India held that …..

“21. The proviso appended to the said section provides for compliance of legal requirements

before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely

raises a presumption in regard to the second aspect of the matter. Existence of legally

recoverable debt is not a matter of presumption under Section 139 of the Act. 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.”

22. However, in a latest judgment Rangappa -vs- Sri Mohan [AIR 2010 SC 1898 : 2010 Cri. L.J.

2871] the Full Bench of Hon’ble Supreme Court of India differing on the above part of ratio

as laid down in the judgment of Krishna Janardhan Bhat (supra) held that ----

“14. In light of these extracts, we are in agreement with the respondent-claimant

that the presumption mandated by Section 139 of the Act does indeed include the

existence of a legally enforceable debt or liability. To that extent, the impugned

observations in Krishna Janardhan Bhat (supra) may not be correct. However, this

does not in any way cast doubt on the correctness of the decision in that case since it

was based on the specific facts and circumstances therein. As noted in the citations,

this is of course in the nature of a rebuttable presumption and it is open to the

accused to raise a defence wherein the existence of a legally enforceable debt or

liability can be contested. However, there can be no doubt that there is an initial

presumption which favours the complainant. Section 139 of the Act is an example of

a reverse onus clause that has been included in furtherance of the legislative

objective of improving the credibility of negotiable instruments. While Section 138 of

the Act specifies a strong criminal remedy in relation to the dishonour of cheques,

the rebuttable presumption under Section 139 is a device to prevent undue delay in

the course of litigation. However, it must be remembered that the offence made

punishable by Section 138 can be better described as a regulatory offence since the

bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually

confined to the private parties involved in commercial transactions. In such a

scenario, the test of proportionality should guide the construction and interpretation

of reverse onus clauses and the accused/defendant cannot be expected to discharge


an unduly high standard or proof. 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. As clarified in the citations, 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.”

23. Hon’ble Supreme Court of India in the reported case of M/S. Kumar Exports –vs- M/S.

Sharma Carpets (2009) 2 SCC 513, while discussing the presumption also laid down the

law as to what amount to rebuttal and the effect of non-rebuttal by the accused on the

following words………….

11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of

the words "unless the contrary is proved" in Section 139 of the Act read with definitions of

"may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at

once clear that presumptions to be raised under both the provisions are rebuttable. When a

presumption is rebuttable, it only points out that the party on whom lies the duty of going

forward with evidence, on the fact presumed and when that party has produced evidence

fairly and reasonably tending to show that the real fact is not as presumed, the purpose of

the presumption is over. The accused in a trial under Section 138 of the Act has two options.

He can either show that consideration and debt did not exist or that under the particular

circumstances of the case the non-existence of consideration and debt is so probable that a

prudent man ought to suppose that no consideration and debt existed. To rebut the statutory

presumptions an accused is not expected to prove his defence beyond reasonable doubt as is

expected of the complainant in a criminal trial. The accused may adduce direct evidence to

prove that the note in question was not supported by consideration and that there was no

debt or liability to be discharged by him. However, the court need not insist in every case that

the accused should disprove the non-existence of consideration and debt by leading direct

evidence because the existence of negative evidence is neither possible nor contemplated. At

the same time, it is clear that bare denial of the passing of the consideration and existence of

debt, apparently would not serve the purpose of the accused. Something which is probable

has to be brought on record for getting the burden of proof shifted to the complainant. To

disprove the presumptions, the accused should bring on record such facts and circumstances,

upon consideration of which, the court may either believe that the consideration and debt did

not exist or their non-existence was so probable that a prudent man would under the

circumstances of the case, act upon the plea that they did not exist. Apart from adducing

direct evidence to prove that the note in question was not supported by consideration or that

he had not incurred any debt or liability, the accused may also rely upon circumstantial

evidence and if the circumstances so relied upon are compelling, the burden may likewise

shift again on to the complainant. The accused may also rely upon presumptions of fact, for

instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions

arising under Sections 118 and 139 of the Act. The accused has also an option to prove the


non-existence of consideration and debt or liability either by letting in evidence or in some

clear and exceptional cases, from the case set out by the complainant, that is, the averments

in the complaint, the case set out in the statutory notice and evidence adduced by the

complainant during the trial. Once such rebuttal evidence is adduced and accepted by the

court, having regard to all the circumstances of the case and the preponderance of

probabilities, the evidential burden shifts back to the complainant and, thereafter, the

presumptions under Sections 118 and 139 of the Act will not again come to the complainant's

rescue.”

24. From the above legal principles as settled by Hon’ble Supreme Court of India in various

pronouncements, and also followed in the reported case of Raman Finance Corpn. –vs-

Harmeet Singh 2007(2)ALD(Cri)5 MANU/PH/0355/2007, it is clear that in the case u/s 138 of

N.I. Act the complainant has been put in a better platform then the accused by incorporating

section 118 and 139 in Negotiable Instrument Act. Both the sections mandate to presume

the fact of existence of legally enforceable debt on issuance of cheque by the drawer.

However the presumption is rebuttable and to rebut the statutory presumptions, an accused

is not expected to prove his defence beyond reasonable doubt as is expected of the

complainant in a criminal trial. The accused may adduce direct evidence to prove that the

cheque in question was not supported by consideration and that there was no debt or

liability to be discharged by him.

25. Now turning to the facts and evidence of this case as lead by the parties, and the statement

of the accused, it reveals that in this case, the accused has taken the burden of rebuttal by

raising plea of denial of taking loan, denied issuance of blank signed cheque to the

complainant, but accepted that he issued blank cheque for business purpose to the husband

of the complainant, In such a situation, let me at first look at the plea of rebuttal as to decide

the effect of u/s 139 of N.I. Act in this case.

26. Learned Advocate for the complainant submitted in his written as well as in his oral

arguments that:-

a. The good business relationship of the accused and the complainant was not denied,

b. That the accused acknowledged the loan given to him by the complainant by issuing a

statement for confirmation of account and the accused signed on it.

c. That the accused on continuous/repeated demand of the complainant the loan amount

issued two cheques one for Rs. 6 lakhs and the other for Rs. 4 lakhs respectively.

d. The accused did not denied the receipt of the loan of Rs. 10,00,000/- (Rupees ten lakhs

only) from the complainant by way of account payee cheque No. 465571.

e. The accused also did not denied the receipt of the legal notice by the advocate

concerned of the complainant.

f. That the accused did not denied the Exhibit 8 the postal receipt and Exhibit 9 the

confirmation slip regarding delivery of the lawyer’s notice.

g. It is also stated that the address in which the summons were issued by the court and the

address in which the lawyers demand notice was issued, is the same.

h. Also the accused has not denied taking advances from the complainant sometimes.

i. That the accused the accused cross examined the complainant but he did not denied the

Exhibits.


27. The learned advocate the accused on the other hand submitted in his oral arguments that:-

i) The prosecution failed to prove a legally enforceable debt,

ii) There are contradictory statements between the complainant and her husband, i.e.,

PW 1 and PW2 respectively.

iii) That merely not giving suggestions in cross examination does not amount to

admission of a fact.

iv) The prosecution could not prove the contents of the documents exhibited.

v) The accused never gave the statement of confirmation for his accounts (Exhibit 1) to

the complainant.

vi) That there are contradictions in the evidence of the complainant in her evidence in

chief she stated that she is a partner in M/S Kaziranga Tea Manufacturers, Nahorjan,

Bokakhat, but in her cross examination she stated that she is a house wife.

vii) The complainant should know her case to prove it beyond reasonable doubt in this

case the complainant is not aware of the facts and circumstances of her case,

because she accepted that the loan was given by her husband and not by her, and all

the transactions were done by her husband and not by her, she further do not know

who entered the details in the cheques i.e., Exhibit 2 and 4 respectively.

viii) There is no legally enforceable debt or liability on the part of the accused and the

loan given by the complainant is time barred because the loan was given in the year

2004 but the cheques in questions are issued in the year 2009, i.e., after the period

of limitation is over.

28. Keeping in view the above arguments of both the parties and the legal aspects of this case,

let us now decide the points formulated in this case.

29. From the Exhibit 10 Copy of the income Tax return Assessment for the year 2005-2006 for

the accounting year 2004-2005 and Exhibit 11 Copy of the income Tax return Assessment for

the year 2010-2011 for the accounting year 2009-2010 of the complainant, it can be

presumed that the complainant is a person with a sound financial capacity.

30. Regarding the point I:- That whether the complainant gave a loan of Rs. 10,00,000.00

(rupees ten lakhs only) to the accused and whether the accused in discharge of the said loan

issued the two cheques is needed to be proved. It is found that no agreement was executed

during the time of giving loan, and the said loan was given on good faith due to good

business relationship.

Firstly, The PW 1 complainant and PW 2 Ashok Singhania in their evidence stated

that in the month of December, 2004 the accused approached the complainant for a loan of

Rs. Rs. 10,00,000.00 (rupees ten lakhs only) showing his financial hardship, and due to good

business relationship the complainant on 10/12/2004 by way of issuing an account payee

cheque bearing No. 465571 gave the loan on good faith.

In the cross examination the complainant stated a different version by stating that the loan

amount of Rs. 10,00,000.00 (rupees ten lakhs only) to the accused was given by her

husband and all the transactions in this case were done by her husband. On the other hand,

PW 2 Ashok Singhania the husband of the complainant admitted in his evidence in chief that

the loan was given by the complainant and not by him, moreover, PW 2 in his evidence

nowhere mentioned that transactions were made by him. He further admitted in his cross

examination that the alleged transactions made in this case by the complainant with the


accused was in her personal capacity and not as a partner of M/S Kaziranga Tea

Manufacturing Company.

Secondly, the complainant as well as PW 2 in their evidence in chief stated that the

accused acknowledged the receipt of loan by issuing statement of statement for

confirmation of Account (Exhibit 1) where he duly signed. The accused declined to issue any

such statement.

On perusal of exhibit 1 i.e., the statement of confirmation it is seen that it was

issued on 12/04/05 that is after four months after giving the loan. But in her cross

examination the complainant stated that, whether the accused gave in writing any

documents as to acknowledge the receipt of loan amount she is not aware of it because she

admitted that all the transactions in this case was done by her husband. Moreover, in the

complaint petition and in the initial deposition on affidavit of the complainant there was no

mention about any acknowledgement by the accused about the loan by issuing statement of

confirmation of accounts

Thirdly, the complainant in her cross examination admitted that the cheque of Rs 6

lakhs (Exhibit 2) was given to her by the accused on 21/09/2009 and she stated that the said

cheque was sent for encashment on 25/03/2010, but in her evidence in chief she stated that

the cheque of Rs. 6 lakhs (Exhibit 2) was given by the accused on 27/09/2009 and it was first

time deposited on 29/10/2009 but returned unpaid and again on 25/03/2010 she re-

deposited which again returned unpaid. The complainant further admitted in her cross

examination that on which date the second cheque for Rs. 4 lakhs (Exhibit 4) was given to

her she does not remember, also she admitted that she does not know on which date the

cheque of Rs. 4 lakhs (Exhibit 4) was deposited in the bank for encashment, and when it

returned unpaid. She further admitted that how many times the Exhibit 4 was deposited in

the bank for encashment she does not know.

Fourthly, the complainant admitted that on which bank the two cheques i.e., Exhibit

2 and Exhibit 4 were deposited for encashment she does not know, and further admitted

that the two cheques were deposited by her husband, but her husband PW 2 in his evidence

in chief has clearly stated that the complainant submitted the two cheques in the bank for

encashment.

Fifthly, the most important point is that the complainant clearly admitted in her

cross examination that she does not know who entered the details in the two cheques i.e.,

Exhibit 2 and Exhibit 4, because she stated that her husband was the person who was

conducting the transactions in this case.

In the Judgment of John K Abraham –vs- Simon C Abraham and another, (2014) 2 SCC

236, The Hon’ble Supreme Court held that

“10. Keeping the said statutory requirements in mind, when we examine the

facts as admitted by the Respondent-complainant, as rightly concluded by the

learned trial Judge, the Respondent was not even aware of the date when

substantial amount of Rs. 1,50,000/- was advanced by him to the Appellant,


that he was not sure as to who wrote the cheque, that he was not even aware

when exactly and where exactly the transaction took place for which the

cheque came to be issued by the Appellant. Apart from the said serious lacuna

in the evidence of the complainant, he further admitted as PW.1 by stating

once in the course of the cross-examination that the cheque was in the

handwriting of the accused and the very next moment taking a diametrically

opposite stand that it is not in the handwriting of the accused and that it was

written by the complainant himself, by further reiterating that the amount in

words was written by him. We find that the various defects in the evidence of

Respondent, as noted by the trial Court, which we have set out in paragraph 7

of the judgment, were simply brushed aside by the High Court without

assigning any valid reason. Such a serious lacuna in the evidence of the

complainant, which strikes at the root of a complaint under Section 138,

having been noted by the learned trial Judge, which factor was failed to be

examined by the High Court while reversing the judgment of the trial Court, in

our considered opinion would vitiate the ultimate conclusion reached by it. In

effect, the conclusion of the learned Judge of the High Court would amount to

a perverse one and, therefore, the said judgment of the High Court cannot be

sustained.”

31. In this present case in hand also the complainant is not aware of the facts about who wrote the cheques in question, whether any written documents were executed by the accused at the time of giving the loan, in which banks the cheques were deposited for encashment, when those cheques were returned unpaid, the complainant further admitted that her husband did all the transactions in this case but her husband in his evidence nowhere mentioned that he did the transactions. This very points strikes at the very root of this case.

32. Now, in respect of defence allegation of misuse of blank cheques, the accused admitted that he had business transactions with the husband of the complainant and he used to supply green tea leaves and at that time Ashok Singhania who is the husband of the complainant use to collect blank cheques for advance and security as per agreement, he stated that those cheques were misused by the complainant in this case. PW 2 Ashok Singhania, the husband of the complainant also admitted in his cross examination that the accused had good business relation with them by supplying green tea leaves to their company and also admitted that the accused sometimes used to take advance amount for the supply of tea leaves, but PW 2 declined the fact that, he used to take any blank cheques from the accused for those advance money. But, the complainant as PW 1 in her cross examination admitted that the cheques in question were being deposited by her husband PW 2 Ashok Singhania and she does not know who entered the details in those two cheques, these facts and circumstances strengthened the defence version of misused of the cheque issued by the accused during business transactions with the husband of the Complainant. This arguments of malafide on the part of the complainant gets further corroboration from her admission in her cross examination that the transactions in this case was conducted by her husband, and the disputed cheques were deposited by her husband.

33. From the above discussions and the contradictions found in the evidence of the complainant

during cross examination by the defence, the accused successfully rebutted the burden u/s

139 of Negotiable Instruments Act, 1881.


34. Now regarding point No. ii, whether cheque No. 366729 dated 27-09-2009 and cheque No.

366730 dated 10/11/09 were bounced due to ‘exceeds arrangement’ in the bank account of

accused? On this point Complainant as PW.1 exhibited cheque return memos as Exhibit 3, 5,

6 & 7 which shows that cheques in question i.e., Exhibit 2 and Exhibit 4 were dishonored due

to “Exceed Arrangement” in the account of accused and the said Return memos were signed

and sealed by the bank. Apart from this complainant side examined P.W.3 Sri Simanta

Sarmah and P.W.4 Sri Hirok Jyoti Kachari who are the competent witnesses as both of them

are banker of accused and the complainant respectively. These prosecution witnesses also

proved the fact of dishonor of Exhibit 2 and Exhibit 4 (the said cheques) due to Exceed

Arrangements in the account of the accused. P.W. 3 the witness from the banker of the

accused exhibited a copy of the cheque return register vide Exhibit 12 whereby it was found

that due to Exceed Arrangements the cheques were dishonored on 25/03/10. The Exhibit 12

was properly sealed and signed by the bank authority. Also P.W. 4 the witness from the

banker of the complainant exhibited a copy of the cheque return register vide Exhibit 17

whereby it was found that due to Exceed Arrangements the Exhibit 2 was dishonored on

27/09/09 and Exhibit 4 dishonored on 10/11/09. The Exhibit 17 was properly sealed and

signed by the bank authority.

Now as per section 146 of Negotiable Instruments Act:-

146. Bank’s slip prima facie evidence of certain facts:- The court shall, in respect of every

proceeding under this chapter, on production of bank’s slip or memo having thereon the

official mark denoting that the cheque has been dishonored, presume the fact of dishonor of

such cheque, unless and until such fact is disproved.

So basing upon these evidences and the presumption as laid down u/s 146 of N.I Act, the

accused could not rebut this presumption, hence this point is proved by complainant and it

is decided in affirmative. It is a fact that cheque was bounced due to “Exceed Arrangements”

and same is a offence u/s 138 of Negotiable Instrument Act, but subject to fulfillment of the

other ingredients u/s 138 N.I Act.

35. Now let us decide Point No iii, that whether a valid notice u/s 138 of N.I. Act was served

upon the accused? On this point, version of accused is that he never received any demand

notice nor had any knowledge about dishonour of cheque. On the other hand, on this point

complainant vide “annexure E” filed a copy of the demand notice along with the complaint

petition. On perusal it is seen that it is a complete and informative notice send by the

advocate R.P Jaiswal under instruction of his client Mrs. Sushma Singhania the complainant

in this case. Exhibit.8 is the postal receipt showing dispatch of the notice at the address of

accused by registered post with A/D on 01/04/2010 which was within the stipulated period

from the dishonor of the cheques. Exhibit. 9 is the confirmation slip regarding delivery of the

notice to the accused on 09/04/10 issued by Sub-Post Master of Komarbondha Ali Post

Office (concerned postal authorities). The complainant examined PW 5 Puneswar Neog,

Peon of Athabari Post Office, who stated that he was authorized by the Sub post master of

Komarbondha Ali Post office to depose on his behalf in this case vide Exhibit 19. PW 5

further corroborated the claim of the complainant by deposing that Exhibit 9 was issued by

Komarbondha Ali Post Office. He also exhibited the delivery report of the notice vide Exhibit

20 and identified the signature on Exhibit 20 is that of the accused vide Exhibit 20 (1). On


this very point I find that though the accused in his statement in defence stated that he did

not get any notice, but it seen that the address in which the legal notice was issued and the

address in which the court summon were issued are the same. The accused simply denied

that he has not received the demand notice, but he has not adduced any evidence to rebut

the claim of the complainant that the notice was properly served. So the presumption u/s 27

of The General Clauses Act stands in favour of complainant and in service of the notice.

Further as per the verdict of C.C Alavi Haji –vs- Palapetty Muhammad & Anr. (2007) 6 SCC

555, Hon’ble Supreme Court of India in has made it clear that:-

“16. It is also to be borne in mind that the requirement of giving of notice is a clear departure

from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing

a complaint Any drawer who claims that he did not receive the notice sent by post, can,

within 15 days of receipt of summons from the court in respect of the complaint under

Section 138 of the Act, make payment of the cheque amount and submit to the Court that he

had made payment within 15 days of receipt of summons (by receiving a copy of complaint

with the summons) and, therefore, the complaint is liable to be rejected. A person who does

not pay within 15 days of receipt of the summons from the Court along with the copy of the

complaint under Section 138 of the Act, cannot obviously contend that there was no proper

service of notice as required under Section 138, by ignoring statutory presumption to the

contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act”.

In this present case accused did not raise the said objection within 15 days of receipt of

summons. Hence plea taken by accused is not tenable and considering the evidences

discussed above this point is decided in affirmative and in favour of the complainant.

36. Regarding Point No IV:- Whether the complaint was filed within the period of limitation? In

respect of filing of the case within the period of limitation though no such plea has been

raised by the accused side but let me decide the fact. The legal notice issued on 01-04-2010

and the same was received by the accused on 09/04/10 then the accused shall get a time for

fifteen days for payment and thus case of action for the case arose on 25/04/10 and the

present case was filed on 13-05-2010. As such the case was filed within the period of

limitation.

37. Now let us decide the point No. V:- Whether the debt as stated by the complainant in her

complaint petition is a time barred debt? The defence in their argument stated that the debt

for which this complaint petition was filed was time barred and hence it is not a legally

enforceable debt, therefore the section 138 of Negotiable Instruments Act will not be

attracted in this case. The complainant denied the same.

The complainant as PW 1, as well as PW 2 Ashok Singhania the husband of the complainant

admitted in their evidence that the loan was given to the accused on 10/12/14 on good faith

and no any agreement was done at the time of giving the loan, they further stated that the


accused acknowledged the receipt of the loan by issuing statement for confirmation of

account vide Exhibit 1. It is seen that the Exhibit 1 was issued on 12/04/2005.

To constitute an offence under Section 138 of the Negotiable Instruments Act, 1881 the

following are the three ingredients:-

I. That there is a legally enforceable debt;

II. 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 a legally enforceable

debt; and

III. That the cheque so issued had been returned due to insufficiency of funds.

Therefore, it is clear that to attract the penal provision u/s 138 N.I. Act 1881, the debt for

the payment of which the cheque is issued and that cheque is dishonoured should be a

legally enforceable debt or liability or else the said offence will not be attracted against the

accused.

In the present case, the loan was given on 10/12/2004, but the cheques in question as

admitted by the complainant and found from the Exhibit 2 and 4 were given on 27/09/2009

and 10/11/2009 respectively, but, the right to recover the loan stood barred by limitation on

09/12/2007, Therefore, the debt mentioned in complaint has become time barred on the

date of issuance of the cheques in question. Further no valid acknowledgement of debt has

been established on the side of the complainants. As per Section 18 of the Limitation Act, a

debt should be acknowledged within the period of limitation. In the instant cases, no

document has been produced by the complainant to show any acknowledgement made by

the accused to that effect. Further a time barred debt cannot be construed as

a legally enforceable debt.

In the recent case of Amulya Patowary –vs- Amarendra Choudhury 2013 (5) GLT 201,

Hon’ble Gauhati High Court, held that:-

“47. Because of the failure of the appellant to prove that the debt or liability, which the

respondent sought to discharge, was a legally enforceable debt or liability, no offence,

under Section 138 of the NI Act, could have been said to have been made out. The learned

appellate Court was, therefore, wholly correct in pointing out that when the debt or

liability, in question, was time-barred and not recoverable by institution of appropriate

suit, the mere dishonour of the cheque, for insufficiency of fund, would not give rise to the

commission of an offence punishable under Section 138 if the debt or liability, which is

sought to be discharged, in whole or in part, is not legally enforceable.”


Under the said circumstances and the discussion made above, the Court can safely come to

a conclusion that the cheques in question have not been given in respect of a

legally enforceable debts and on that score alone, the prosecution fails to attract the penal

provision of Section 138 of Negotiable Instruments Act, 1881, against the accused. Therefore

the point number V is decided in negative and in favour of the accused.

38. To sum up, from the above discussion and the evidence on record the complainant being

able to prove that the two cheques in question issued by the accused were dishonoured due

to exceed arrangements, and that the legal notice was properly served upon the accused.

But as decided in point No. I and V, the complainant failed to prove that she gave a loan of

Rs. 10,00,000.00 (Rupees ten lakhs only) to the accused, and also failed to prove the prime

ingredient of a offence U/S 138 Negotiable Instruments Act, 1881, i.e., that the two cheque

in question were issued by the accused in discharge of a legally enforceable debt.

39. Hence, I held that complainant has failed to prove the case u/s 138 of Negotiable

Instruments Act, 1881, against the accused Parag Saikia beyond all reasonable doubt and as

such accused Sri Parag Saikia is held not guilty for the offences u/s 138 Negotiable

Instrument Act and he is acquitted from the charges u/s 138 of N.I. Act and henceforth set at

liberty.

40. Bail bond and surety furnished by the accused to remain in force a period of 6 months from

today or till furnishing of fresh surety u/s 437 A Cr.P.C.

Judgment delivered in the open court. The case is disposed off on contest.

Given under the hand and seal of this court on this 17th day of June, 2015 at

Bokakhat, District Golaghat.

Saptarshi Garg

Judicial Magistrate First Class,

Bokakhat, Golaghat.


APPENDIX

PROSECUTION WITNESSES:-

1. PW 1 Smti Sushma Singhania,

2. PW 2 Sri Ashok Singhania,

3. PW 3 Sri Simanta Sarmah, Manager Indian Bank, Jorhat Branch,

4. PW 4 Sri Hirak Jyoti Kachari, Assisstant Manager, Indian Overseas Bank, Jorhat Branch and

5. PW 4 Sri Puneswar Neog, Peon, Athabari Post Office.

PROSECUTION DOCUMENTS:-

1. Exhibit 1 Statement of Confirmation of account issued by the accused,

2. Exhibit 2, Cheque bearing No. 366729 dated 27/09/09 for Rs. 6,00,000.00 (rupees six lakhs

only),

3. Exhibit 3, the cheque returning memo dated 29/10/2009,

4. Exhibit 4, Cheque bearing No. 366730 dated 10/11/09 for Rs. 4,00,000.00 (rupees four lakhs

only),




8. Exhibit 8, postal receipt,

9. Exhibit 9, the confirmation slip regarding delivery of lawyer’s notice,

10. Exhibit 10, Copy of Income tax return for assessment year 2005-06 of the complainant,

i) Exhibit 10 (a) Copy of Income tax return for assessment year 2005-06 of the

complainant,

ii) Exhibit 10 (b) Copy of balance sheet for assessment year 2005-06 of the

complainant,

iii) Exhibit 10 (c) is the loan and advance given to the accused disclosed in her balance

sheet for assessment year 2005-06,

11. Exhibit 11, Copy of Income tax return for assessment year 2010-11 of the complainant,

i) Exhibit 11 (a) Copy of Income tax return for assessment year 2010-11 of the

complainant,

ii) Exhibit 11 (b) Copy of balance sheet for assessment year 2010-11 of the

complainant,

iii) Exhibit 11 (c) is the loan and advance given to the accused disclosed in her balance

sheet for assessment year 2010-11,

12. Exhibit 12, Cheque return register of Indian Bank, Jorhat Branch,

13. Exhibit 12 (1), relevant part for the case in the register,

14. Exhibit 13, Authorization letter from Manager, Indian Overseas Bank, Jorhat Branch,

15. Exhibit 14, Bank account statement of Complainant Sushma Singhania,

16. Exhibit 15, Intimation letter for Rs 6 lakhs from Indian Overseas Bank, Jorhat Branch,

17. Exhibit 15 (1), Signature of Manager, Dwipen Das as indentified by PW 4 Hirok Jyoti Kahari,

18. Exhibit 16, Intimation letter for Rs 4 lakhs from Indian Overseas Bank, Jorhat Branch,

19. Exhibit 16 (1), Signature of Manager, Dwipen Das as indentified by PW 4 Hirok Jyoti Kahari,


20. Exhibit 17, Cheque return register of Indian Overseas Bank, Jorhat Branch,

21. Exhibit 18, Cheque delivery book attested by the Branch Manager, Indian Overseas Bank,

Jorhat Branch,

22. Exhibit 18 (1), Relevant page in connection to this case case,

23. Exhibit 19, Authorization letter by Sub-post Master, Komarbondha Post Office and

24. Exhibit 20, Report of delivery of the letter to Parag Saikia,

25. Exhibit 20 (1), Signature of Porag Saikia as identified by PW 5 the peon of Athabari Post

office.

DEFENCE WITNESSES:-

1. Nil.

DEFENCE DOCUMENTS:-

1. Nil.

CASE LAWS REFERRED:-

1. M.S. Narayana Menon @ Mani -vs- State of Kerala and Anr. [(2006) 6 SCC 39] 2. Kamala S–vs-Vidyadharan MJ [(2007) 5 SCC 264] 3. Krishna Janardhan Bhat -vs- Dattatraya G. Hegde [AIR 2008 SC 1325] 4. Rangappa -vs- Sri Mohan [AIR 2010 SC 1898: 2010 Cri. L.J. 2871] 5. M/S. Kumar Exports –vs- M/S. Sharma Carpets (2009)2 SCC 513, 6. Raman Finance Corpn. –vs- Harmeet Singh 2007(2)ALD(Cri)5 MANU/PH/0355/2007, 7. John K Abraham –vs- Simon C Abraham and another, (2014) 2 SCC 236,

8. C.C Alavi Haji –vs- Palapetty Muhammad & Anr. (2007) 6 SCC 555, 9. Amulya Patowary –vs- Amarendra Choudhury 2013 (5) GLT 201,

Saptarshi Garg

Judicial Magistrate First Class,

Bokakhat, Golaghat.

http://indiankanoon.org/doc/533881/

in the court of judicial magistrate first class at ...golaghatjudiciary.gov.in/jmnt/2015/june/mn...

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