IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS, …kamrupjudiciary.gov.in/feb 20/dj feb...

C.R. Case No.2403c of 2016

1 | P a g e

IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS, KAMRUP

(METRO): GUWAHATI


U/S 138 of Negotiable Instruments Act, 1881

Md. Sagir Ahmed

Son of late Badiruddin Ahmed

Resident of B.T. College Road (West), H. No. 12,

Lachit Nagar, Guwahati-781007, Kamrup (M), Assam………………………Complainant.

-Versus-

Shri Partha Sarathi Chakraborty

Resident of IPCA Building, 3rd Floor,

Opposite Good Morning Bakery, Borthakur Mill,

Byelane-5, P.O. Ulubari, P.S. Paltan Bazar,

Guwahati-781007, Kamrup (M), Assam…………………….…………………………Accused.

Present:-Smt. Dimpy Naroh, A.J.S.

Judicial Magistrate First Class, Kamrup (M)

Advocates Present:-

Mr. N. Sharma, Ms. A. Upadhyaya, Ld. Advocate...……………For the Complainant.

Mr. R. K. Bhuyan, Mr. R. Rabha, Mr. A. Zaman, Mr. R. Dutta, Mr. M. Kashyap, Ld.

Advocate……………………………………For the Accused.

Evidence recorded on: 28.08.2017, 05.07.2018, 13.05.2019

Argument heard on: 27.01.2020

Judgment delivered on: 07.02.2020

JUDGMENT

1. This is a case instituted under section 138 of the Negotiable Instrument Act,

1881 (hereinafter called as the NI Act) alleging therein that the accused had issued


2 | P a g e

the cheques in question in favour of the complainant, which were dishonored by

the bank due to insufficient funds.

2. The brief facts giving rise to the institution of this complaint case by the

complainant, Md. Sagir Ahmed (hereinafter referred to as the complainant) is that

both the complainant and the accused, Shri Partha Sarathi Chakraborty

(hereinafter referred to as the accused) had personal acquaintance for the last

about 20 years and because of such acquaintance, the accused used to frequently

visit his house. He further stated that with the passage of time a friendly

relationship and trust developed between him and the accused. The complainant

further stated that during such friendly relationship, the accused had received

various amounts from him in cash which he needed for the purpose of his new

business, from time to time, as loan with a promise to return the same within a

couple of months. The complainant further stated that on 30.06.2014 the accused

was liable to pay a total amount of Rs.15,00,000/- (Rupees Fifteen Lakhs) to the

complainant. So the complainant insisted the accused to issue an

undertaking/promissory note to repay the said amount within a year or two and

also issue some cheques as security towards the part payment of the loan amount.

Accordingly, on 30.06.2014, the accused voluntarily executed an

undertaking/promissory note with a promise to repay a part payment of

Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand) only out of the entire amount

of Rs.15,00,000/- (Rupees Fifteen Lakhs) only on or before 31.03.2016 without

fail. That apart, as, security for the part repayment of the aforesaid amount, the

accused had voluntarily issued 3 (three) nos. of undated cheques putting his

signatures thereon bearing cheque No. 000008 and cheque No. 000026 each of

Rs.1,00,000/- (Rupees One Lakh) only and cheque No. 000038 for Rs.50,000/-

(Rupees Fifty Thousand) only, drawn on the Standard Chartered Bank, G.N.

Bordoloi Road, Ambari, Guwahati-781001 from A/C No.341-1-020593-8. The

accused further agreed that in the event, he fails to repay the said amount of

Rs.15,00,000/- only to the complainant within the stipulated period as promised,

the same will carry interest @ 18% per annum on and from 01.07.2014 and the

complainant shall have full authority and liberty to present the said cheques for

encashment by putting a date over the same on or after 01.04.2016 and his name.

However, as the amount of the cheque bearing No.000038 has been mentioned


3 | P a g e

as Rs.1,00,000/- instead of Rs.50,000/- and the total amount of all the cheques

has been mentioned as Rs.3,00,000/- instead of Rs.2,50,000/- in the said

undertaking-cum-promissory note dated 30.06.2014, when it came to the notice

of the complainant, it was brought to the notice of the accused also who stated

that the same was caused due to some bona fide mistake. Thereafter, on

31.07.2014, the accused had voluntarily executed another undertaking-cum-

promissory note with a promise to repay a part payment of Rs.7,50,000/- (Rupees

Seven Lakhs Fifty Thousand) only out of the entire amount of Rs.15,00,000/-

(Rupees Fifteen Lakhs) only on or before 31.03.2016 without fail. That apart, as

security for the part repayment of the aforesaid amount of Rs.7,50,000/-, the

accused had voluntarily issued 3 (three) nos. of undated cheques putting his

signatures thereon bearing cheque No. 249025 and cheque No. 249026

respectively each of Rs.1,00,000/- (Rupees One Lakh) only and cheque bearing

No. 000039 for Rs.30,000/- (Rupees Thirty Thousand) only, drawn on the Standard

Chartered Bank, G.N. Bordoloi Road, Ambari, Guwahati-781001 from A/C No.341-

1-020593-8. The accused further agreed that in the event, he fails to repay the

said amount of Rs.15,00,000/- only to the complainant within the stipulated period

as promised, the same will carry interest @ 18% per annum on and from

01.07.2014 and the complainant shall have full authority and liberty to present the

said cheques for encashment by putting a date over the same on or after

01.04.2016 and his name. In addition to that, the accused has categorically and

specifically admitted the mistake of amount crept in the undertaking-cum-

promissory note dated 30.06.2014, which has been reflected in the subsequent

undertaking-cum-promissory note dated 31.07.2014. The complainant further

contended that as the accused failed to repay the said amount till 31.03.2016 as

per the undertaking-cum-promissory notes, he put the date i.e. 06.04.2016 as well

as his name in the cheque bearing No. 000038 for Rs.50,000/- (Rupees Fifty

Thousand) only out of the three cheques mentioned in the undertaking-cum-

promissory note dated 30.06.2014, and in the cheque bearing No. 000039 for

Rs.30,000/- (Rupees Thirty Thousand) out of the three cheques mentioned in the

undertaking-cum-promissory note dated 31.07.2014 and presented the same to

his banker, i.e. State Bank of India, GMC Branch, Bhangagarh, Guwahati-781005

for collection on 13.06.2016. But both the cheques were dishonored vide return


4 | P a g e

memo dated 14.06.2016 on the ground “Funds Insufficient.” Thereafter the legal

demand notice dated 17.06.2016 was issued to the accused asking him to make

the payment of the cheque amount within 15 days from the date of receipt of the

notice. Even after receiving the legal demand notice on 20.06.2016, the accused

had allegedly not discharged his liability until the date of filing the complaint; as

such the complainant lodged this complaint under Section 138 of the Negotiable

Instruments Act, 1881.

3. The accused was called upon to enter trial and upon his appearance on receiving

summons, the particulars of offence under section 138 of the NI Act, 1881 was

explained to him to which he pleaded not guilty and claimed to be tried.

4. The complainant Md. Sagir Ahmed examined himself as PW 1 by way of affidavit

in support of his case and relied upon the following documents:-

(i) Exhibit 1- Undertaking-Cum-Promissory Note dated 30.06.2014 and Exhibit

1(1)- Signature of the Accused Shri Partha Sarathi Chakraborty

(ii) Exhibit 2- Undertaking-Cum-Promissory Note dated 31.07.2014 and Exhibit

2(1)- Signature of the Accused Shri Partha Sarathi Chakraborty

(iii) Exhibit 3- Cheque bearing No. 000038 dated 06.04.2016 for Rs.50,000/- and

Exhibit 3(1)- Signature of the Accused Shri Partha Sarathi Chakraborty

(iv) Exhibit 4- Cheque bearing No. 000039 dated 06.04.2016 for Rs.30,000/- and


(v) Exhibit 5- Cheque Return Memo dated 14.06.2016

(vi) Exhibit 6- Cheque Return Memo dated 14.06.2016

(vii) Exhibit 7- Advocate Notice dated 17.06.2016 and Exhibit 7(1) and Exhibit 7(2)-

Signatures of the Advocate Narayan Sharma

(viii) Exhibit 8- Postal receipt No. KRS 450160981IN dated 17.06.2016

(ix) Exhibit 9- Returned A/D card sent with Advocate notice dated 17.06.2016

5. The accused Shri Partha Sarathi Chakraborty examined himself and his wife

Smt. Nila Chakraborty in his defense and relied upon the following documents:-


5 | P a g e

(i) Exhibit A- Details of Cheque bearing No.940984 and Cheque bearing No.940985

and mentioning that the said cheques were made in favour of one Mr. Aparup

Hazarika.

(ii) Exhibit B- Account Statement from the month of January 2015 to July 2015.

(iii) Exhibit C- Receipt dated 17.07.2015

(iv) Exhibit D- Receipt dated 29.12.2014

6. The accused in his statement u/s 313 of Cr.P.C. stated that he had issued two

blank cheques as security but the amount and date were not filled up by him. He

stated that he has no knowledge about the dishonor of the cheques. The accused

further stated that he had not received the demand notice.

7. The accused had taken a defense that although he had issued the cheques in

question he has no legal liability to pay the amount of the cheques in question to

the complainant as the same is not a legally enforceable debt in view of the fact

that the cheques were issued for the purpose of security. Accordingly the learned

counsel for the accused submitted that the complainant is not entitled to get

payment as sought for and the accused is also not liable to pay the amount.

8. I have heard the learned counsel appearing for the complainant and the

accused. Upon hearing and on perusal of case record I have framed the following

points for determination in order to arrive at a definite finding as regards the

dispute in this case:-

9. POINTS FOR DETERMINATION:-

(i) Whether the accused issued the Cheque bearing No. 000038 dated 06.04.2016

for Rs.50,000/- and Cheque bearing No. 000039 dated 06.04.2016 for Rs.30,000/-

only for the discharge of any legally enforceable debt or liability towards the

complainant?

(ii) Whether the cheques were dishonored for the reason “Funds Insufficient” in

the account of the accused?

(iii) Whether the accused received the demand notice issued by the complainant

regarding the dishonor of the cheques?


6 | P a g e

(iv) Whether the accused has committed the offence under Section 138 of the

Negotiable Instruments Act, 1881?

10. I have carefully gone through the case record and perused the entire evidence

on record both oral and documentary. I have heard and perused the arguments

advanced and the submissions made by the learned counsel on behalf of the

complainant and the learned counsel for the accused. It is submitted by the learned

counsel for the complainant that the complainant has been able to prove all the

ingredients of offence under Section 138 of the NI Act, 1881 beyond reasonable

doubts by way of testimony of PW 1 which stood corroborated by the documentary

evidence in the form of documents Exhibit 1 to Exhibit 9. He submits that the

accused had taken vague, false and baseless defense that the cheques in question

were given as security and that he had already repaid the loan. It is further

submitted by him that the accused has miserably failed to rebut the presumption

arising in favour of the complainant in terms of Section 118 and 139 of the NI Act,

1881 in as much as testimony of the PW 1, during his cross-examination, has

remained uncontroverted in material particulars. He submits that the accused has

not denied having issued the cheques in question nor has he denied his signatures

on the documents Exhibits 1, 2, 3 and 4.

11. DISCUSSIONS, DECISION AND REASONS FOR DECISION:

12. Point No. (i)- Whether the accused issued the Cheque bearing No. 000038

dated 06.04.2016 for Rs.50,000/- and Cheque bearing No. 000039 dated

06.04.2016 for Rs.30,000/-only for the discharge of any legally enforceable debt

or liability towards the complainant?

13. The complainant Md. Sagir Ahmed as PW 1 has reiterated the same facts as

stated in the complaint petition. The PW 1 in his evidence deposed that the accused

had voluntarily executed an Undertaking-Cum-Promissory Note on 30.06.2014 and

another on 31.07.2014 to repay a part payment of the loan amount which are

exhibited as Exhibit 1 and 2, wherein the signatures of the accused are exhibited

as Exhibit 1(1) and 2(1). He further deposed that in due discharge of his liability

the accused issued the Cheque bearing No. 000038 dated 06.04.2016 for

Rs.50,000/- and Cheque bearing No. 000039 dated 06.04.2016 for Rs.30,000/-only


7 | P a g e

in favour of the complainant in due discharge of his debts in part. The said cheques

are produced and exhibited as Exhibit 3 and Exhibit 4 and the signature of the

accused thereon as Exhibit 3(1) and 4(1).

14. In M.S. Narayana Menon vs. State of Kerala; (2006) 6 SCC 39, the

Hon’ble Apex Court has held that it has to be presumed that the cheque was issued

for some consideration unless the existence of such consideration is disproved and

that the initial burden of proof is on the accused to rebut the said presumptions

by raising a probable defense.

15. The accused has contended that the complainant has misused his security

cheques but he failed to produce any materials on record to show that he has

taken any action against the complainant after coming to know that the

complainant has misused his security cheques. Moreover in I.C.D.S. Vs. Beena

Shabeer and Another; AIR 200 2SC 3014 the Hon’ble Apex Court has held

that:

10. “The commencement of the Section stands with the words “Where any

cheque”. The above noted three words are of extreme significance, in particular,

by reason of the user of the word “any”- the first three words suggest that in fact

for whatever reason if a cheque is drawn on an account maintained by him with a

banker in favour of another person for the discharge of any debt or other liability,

the highlighted words if read with the first three words at the commencement of

Section 138, leave no manner of doubt that for whatever reason it may be, the

liability under this provision cannot be avoided in the event the same stands

returned by the banker unpaid. The legislature has been careful enough to record

not only discharge in whole or in part of any debt but the same includes other

liability as well.”

16. Thus even if the contention of the accused that the cheques-in-question were

issued as security is believed, then also as per the ratio as laid down in I.C.D.S.

Vs. Beena Shabeer And Another; (supra), security cheque will also come

under the purview of Section 138 of the Negotiable Instruments Act if it is proved

by the complainant that the accused was liable to pay the cheque amount when

the same was deposited for encashment.


8 | P a g e

17. The N.I. Act raises two presumptions in favor of the holder of the cheque i.e.

complainant in the present case; firstly, in regard to the passing of consideration

as contained in Section 118 (a) and secondly, a presumption that the holder of

cheque receiving the same of the nature referred to in Section 139 discharged in

whole or in part any debt or other liability.

18. Section 118 of the N.I. Act provides:-

“Presumptions as to negotiable instruments: Until the contrary is proved, the

following presumptions shall be made: (a) of consideration- that every negotiable

instrument was made or drawn for consideration, and that every such instrument,

when it has been accepted, indorsed, negotiated or transferred was accepted,

indorsed, negotiated or transferred for consideration.”

19. Section 139 of the N.I. Act further provides as follows:-

“Presumption in favor of holder- it shall be presumed, unless the contrary is

proved, that the holder of a cheque received the cheque of the nature referred to

in Section 138 for the discharge in whole or in part, of any debt or other liability.”

20. For the offence under Section 138 of the Act, the presumptions under Section

118 (a) and 139 have to be compulsorily raised as soon as execution of cheque by

accused is admitted or proved by the complainant and thereafter burden is shifted

to accused to prove otherwise. These presumptions shall be rebutted only when

the contrary is proved by the accused, that is, the cheque was not issued for

consideration and in discharge of any debt or liability etc. A presumption is not in

itself evidence but only makes a prima facie case for a party for whose benefit it

exists. Presumptions both under Section 118 and 139 are rebuttable in nature.

Both Section 138 and 139 require that the Court shall presume the liability of the

drawer of the cheques for the amounts for which the cheques are drawn. Same

was held by the Hon’ble Supreme Court of India in Hiten P. Dalal v.

Bratindranath Banerjee [(2001) 6 SCC 16)]. Following the judgment of the

Hon’ble Supreme Court in State of Madras vs. Vaidyanatha Iyer AIR 1958

SC 61, it was held by the Hon’ble Supreme Court that it was obligatory on the

Court to raise this presumption.


9 | P a g e

21. A meaningful reading of the provisions of the N.I. Act, 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. Initially, the complainant

has to prove the existence of debt and other liabilities and thereafter the burden

shifts upon the accused to prove that the cheque was not issued towards discharge

of a lawful debt but was issued by way of security or any other reason on account

of some business transaction or was obtained unlawfully.

22. In the present case, the accused has admitted his signature on the cheques

in question, in his statement under Section 313 Cr.P.C. In this regard, reference

can be made to the judgment of the Hon’ble Apex Court in Rangappa vs. Sri

Mohan, AIR 2010 SC 1898, that,

6. “Once the cheque relates to the account of the accused and he accepts

and admits the signatures on the said cheque, then initial presumption

a contemplated under Section 139 of the Negotiable Instruments Act has

to be raised by the Court in favour of the complainant.”

23. Also in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999 (4)

RCR (Criminal) 309, it has been held by the Hon’ble Supreme Court as under:

“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.”

24. In my considered opinion, it is now well settled that in case the signature of

the accused on the cheque in question is proved, there arises a presumption in

terms of Sections 118(a) and 139 of the N.I. Act to the effect that the same was

issued for valid consideration and in discharge of legally enforceable debt or

liability. The accused has contended that apart from his signature and amount, the

complainant has filled up his cheques but he failed to produce any materials on


10 | P a g e

record to show that he has taken any action against the complainant after coming

to know that the complainant has misused his cheques.

25. The accused as DW 1 has averred that he had taken a loan of Rs.5,00,000/-

from the complainant to start his business but later he had returned the loan in

various phases by making the payment to the complainant’s wife and staff of the

complainant’s restaurant namely ‘MEEMS’. Accused stated that the complainant

had taken certain cheques and blank deeds as security where he had put his

signatures. The accused stated that they had a verbal agreement at that moment

that once the accused returned the money borrowed, then the complainant would

return the cheques as well as blank deeds but even after paying the dues, the

complainant had neither returned the cheques nor the blank deeds. Accused has

further stated that he had returned the said loan. He stated that the complainant

did not issue any receipts against the money returned to him. Accused further

stated that he had returned Rs.8,00,000/- (Rupees Eight Lakhs) only to the

complainant and thus owe no liability towards the complainant. Interestingly,

nothing has been adduced on behalf of the accused to prove this fact of repayment

of the loan except Exhibits A, B, C and D which do not express faith in the version

of the accused. The accused failed to prove these exhibits by leading convincing

evidence. The accused further stated that the complainant deposited all the

cheques without informing him so the said cheques got bounced.

26. Section 103 of the Indian Evidence Act, 1872 enunciates that the person who

asserts a fact must prove the same unless the law otherwise provides. In the

present case, the onus to prove that the accused has returned the said loan

amount and nothing remains to be paid to the complainant, rested on the accused.

The accused has failed to bring on record any cogent evidence that can satisfy the

factum of repayment. The only recourse the accused took to prove his case is by

cross-examination of the complainant and by leading defense evidence of himself

and his wife. It will be pertinent to point out that, although the accused examined

himself and Smt. Nila Chakraborty in his defense but the same are not close to

rebutting the presumption as to loan being not legally recoverable or that the

impugned cheques were never issued for the liability alleged by the complainant.


11 | P a g e

27. The accused has also, not been able to bring out the fact of repayment of the

loan in the cross-examination. It will be utter disregard to the established

principles of evidence, if this court accepts the suggestions of the accused during

the cross-examination of the complainant, devoid of any documentary evidence to

concretize the proof. The story of the accused, in the absence of any credible

evidence, cannot be taken as a gospel truth.

28. For the sake of argument if one were to assume that the cheques in question

were in fact, given for the purpose alleged by the accused, then four pertinent

questions may take birth out of reasonability, one, why did the accused not send

a written notice to the complainant to demand the cheques back from him when

the accused has repaid the loan amount. Throughout the course of trial, the

accused did not whisper anything about the recourse he took to procure back the

security cheques. Merely stating that the entire transaction took place in good faith

and the complainant kept the custody of the cheques in question shall not suffice

either to obscure the story put forth by the prosecution or to cause the probabilities

to lie in one’s favour.

29. The second question that would surface from the womb of reasonability is that

why did the accused not file any complaint either with his bank or with the police

in order to ensure that the cheques in question and the blank deeds were not

misused, more so, when the loan so taken was duly repaid by the accused. The

failure to lodge any complaint further causes dubiety to lurk around the story of

the defense. An adverse inference can safely be drawn against the accused who

has otherwise failed to adduce any credible evidence to show that he indeed did

everything within his power and control as a prudent person would do, to ensure

that the cheques tendered by him and the blank deeds signed by him were not

misused. Failure of the accused to prevent such alleged misuse, when he had the

knowledge that the same can be misused by the complainant renders the defense

evidence weak.

30. The third question is, if the loan amount was Rs.5,00,000/- then why did the

accused pay Rs.8,00,000/- to the complainant as the accused did not state that

the complainant had asked for any interest on the loan.


12 | P a g e

31. The fourth question relates to the discrepancy in the loan amount as the

accused as DW 1 stated that the loan amount was Rs.5,00,000/- but the DW 2

stated that the loan amount was for Rs.5,50,000/-. Another discrepancy is that

while the accused stated that he paid Rs.8,00,000/- to the complainant, the DW 2

stated that the accused had paid Rs.11,00,000/- to the complainant. Another

discrepancy is that in his statement of defense the accused had stated that the

amount and date in the cheques in question were not filled up by him. But in his

cross-examination the accused admitted that the amount written in numeric and

words are his. However, the DW 2 has stated that the cheques issued by the DW

1 were blank. All these creates doubt on the version of the accused.

32. Now that the defenses taken by the accused stands beseeched, let us examine

the potentiality of the prosecution story. The complainant’s story is that he granted

friendly loan of various amounts in cash from time to time, totaling Rs.15,00,000/-

to the accused and the latter had issued the undertaking cum promissory note

dated 30.06.2014 and 31.07.2014 as well as the impugned cheques in his favour

to repay a part payment of the said loan. The documents the complainant has

exhibited to substantiate his point are the undertaking cum promissory note dated

30.06.2014 and 31.07.2014, Exhibit 1 and 2 bearing the signatures of the accused,

along with the cheques in question, Exhibit 3 and 4 bearing the signatures of the

accused and the cheque return memos, Exhibit 5 and 6, which further establishes

the facts so claimed by the complainant. The accused did not bring any credible

evidence to impeach the credibility of the said documents, rather the accused

agreed on the point of having signed the blank deeds and the impugned cheques

voluntarily and the fact that the loan was indeed taken though not for the amount

as claimed by the complainant. It is matter of the fact that the complainant has

not built up his story by bringing any other documentary proof, apart from the two

undertaking cum promissory note, cheques in question, cheque return memos,

along with legal notice, of advancing loan to the accused. But the fact that the

accused, in his defence, has accepted the factum of loan advanced by the

complainant provides pillar to the arguments of the complainant.

33. The burden lies heavily on the accused to have probablized the factum of

repayment of the loan. It is not the case of the accused that the complainant


13 | P a g e

obtained his signatures on Exhibits 1, 2, 3 and 4 under duress or by exerting undue

influence. It is further not the case of the accused that the complainant did not

advance any loan to the accused. He claimed that loan was advanced by the

complainant, but the loan amount was Rs.5,00,000/- and the same has been

repaid to the complainant but he failed to prove that he had taken loan of only

Rs.5,00,000/- from the complainant. It is pertinent to mention that though the

accused has claimed to have taken loan of Rs.5,00,000/-, however he has nowhere

mentioned the fact as to why he had issued the security cheques for Rs.50,000/-

and Rs.30,000/- or else as to why he paid Rs.8,00,000/- to the complainant as

claimed by him. The accused has admitted the fact of filling the amount in numeric

and words in the impugned cheques in his cross-examination but the accused has

failed to prove the reason of filling Rs.50,000/- and Rs.30,000/- when the loan was

taken for Rs.5,00,000/- and when he had already paid Rs.8,00,000/- to the

complainant.

34. Additionally, the accused has averred in his statement u/s 313 Cr.P.C., that he

has signed the blank deeds and impugned cheques but did not fill the particulars.

The fact that the accused gave blank signed cheques to the complainant and the

particulars were not filled by him does not dilute the liability of the accused as the

legal position on inchoate instruments is well settled. Section 20 of the NI Act

provides that if a person signs and delivers a paper stamped in accordance with

the loan and either wholly blank or have written thereon an incomplete negotiable

instrument, such person thereby gives prima facie authority to the holder thereof

to make or complete, as the case may be, a negotiable instrument for any amount

specified therein and not exceeding the amount covered by the stamp.

35. In my considered opinion, it is now well settled that in case the accused admits

his signature on the cheque in question, there arises a presumption in terms of

Sections 118(a) and 139 of the NI Act to the effect that the same was issued for

valid consideration and in discharge of legally enforceable debt or liability. The

accused admitted that he issued the cheques in question to the complainant as

security. The accused has not produced any document to show that he has cleared

his liabilities prior to the deposit of the cheques for encashment. Exhibits 1, 2, 3


14 | P a g e

and 4 has already proved the liability of the accused and the accused could not

adduce any credible evidence to rebut the same.

36. In the instant case, from what has been discussed so far it becomes clear that

the accused, apart from his mere statement has failed to disprove the existence of

any consideration and on the other hand vide Exhibits 1, 2, 3 and 4 the complainant

has successfully proved the liability of the accused in favour of the complainant.

Hence, the complainant was well within his right to enforce the security in respect

whereof the cheques in question were issued and to seek to recover the

outstanding debt by encashment of the said cheques.

37. In view of the discussions made above it is held that the accused had issued

the cheques in question for the discharge of an existing debt or liability.

38. DECISION: The cheques in question were issued for the discharge of a legally

enforceable debt or liability.

39. Point No. (ii)-: Whether the cheques were dishonoured for insufficient funds

in the account of the accused?

40. The complainant Md. Sagir Ahmed as PW 1 has deposed that he had deposited

the cheques in question in his bank namely, State Bank of India, G.M.C. Branch,

Bhangagarh, Guwahati-781005 for encashment on 13.06.2016, but the same were

dishonored due to “Funds Insufficient”, vide cheque returning memo dated

14.06.2016 which has been exhibited as Exhibit 5 and 6. From Exhibit 5 and 6 the

complainant had come to know that Exhibit 3 and 4, i.e. Cheque No. 000038 and

000039 were dishonored due to insufficient funds in the account of the accused.

The PW 1 was not cross examined in this regard. In addition to that Section 146

of the NI Act, 1881 provides for a legal presumption that the cheque return memo

shall be prima facie evidence of the fact that the cheque was dishonoured. As such

considering the exhibited return memos and in absence of anything from the

accused side in his defense it is held that the cheques in question were dishonoured

for the reason “Funds Insufficient” in the account of the accused.


15 | P a g e

41. DECISION: The cheques in question were dishonoured for insufficient funds

in the account of the accused.

42. Point No. (iii)- Whether the accused received the demand notice issued by the

complainant regarding the dishonour of the cheque?

43. The PW 1 exhibited the legal demand notice dated 17.06.2016 which was

marked as Exhibit 7 and the postal receipt of notice was exhibited as Exhibit 8.

The returned A/D card sent with the legal notice dated 17.06.2016 was exhibited

as Exhibit 9.

44. In his statement u/s 313 of Cr.P.C. the accused stated that he had not received

the demand notice. On perusal of the above exhibits there is nothing on record

to doubt or disbelieve the genuineness of the above exhibits. Thus the demand

notice dated 17.06.2016 was duly served upon the accused on 20.06.2016.

45. DECISION: The accused had received the demand notice issued by the

complainant.

46. Point No.(iv) Whether the accused has committed the offence under Section

138 of the Negotiable Instruments Act, 1881?

47. The offence under Section 138 of the NI Act is complete on the satisfaction of

certain conditions which are that the cheque has to be issued on the account

maintained by the accused and that the cheque has to be issued for the discharge

of a debt or liability. It is further provided that the said cheque has to be deposited

within three months of its issuance or within its validity and that the notice

regarding the dishonour of the cheque ought to be given within 30 days of the

receipt of information regarding the dishonour.

48. In the instant case at hand it is already held that the cheques in question were

issued by the accused in the account maintained by him and that the said cheques

were dishonoured due to the reason “Funds Insufficient” in the account of the

accused. The cheque bearing No.000038 was issued in the instant case on

06.04.2016 for Rs.50,000/- as it appeared from Exhibit 3 and the cheque bearing

No.000039 was issued in the instant case on 06.04.2016 for Rs.30,000/- as it


16 | P a g e

appeared from Exhibit 4 and the said cheques were presented for encashment

before the banker of the complainant on 13.06.2016, and the cheques were

dishonoured on 14.06.2016. The demand notice was issued by the complainant on

17.06.2016 which is within 30 days from the receipt of information of dishonour.

The notice was received by the accused on 20.06.2016 and the complainant lodged

this case on 03.08.2016 which is within 30 days after the lapse of 15 days from

the date of receipt of demand notice; hence the complaint is lodged within the

period of limitation.

49. In view of the above discussion it is held that all the ingredients of the offence

under Section 138 of the NI Act, 1881 are satisfied in the instant case and further

the complainant has satisfied all the requisites for the institution of the complaint;

hence it is held that the accused Shri Partha Sarathi Chakraborty has committed

the offence under Section 138 of the NI Act, 1881.

50. DECISION: The accused Shri Partha Sarathi Chakraborty has committed the

offence under Section 138 of the NI Act, 1881.

51. In view of the discussions made above and the decisions reached in the

foregoing points for determination it is held that the accused has committed

offence under Section 138 of the NI Act, 1881 and as such the accused is convicted

under Section 138 of the NI Act, 1881.

52. I have heard the parties. I am not inclined to extend the benefit of the

provisions of the Probation of Offenders Act, 1958, because the offence committed

is in the nature of an economic offence and the backbone of the nation depends

on a healthy economy. Moreover the real intention behind the enactment of the

said law is to provide quick remedy to the payee or the holder of the cheque, and

also to instil a sense of confidence and assurance to the business community.

53. Considering the nature of the offence and the other attending facts and

circumstances of this case, the accused is convicted of the offence under Section


17 | P a g e

138 of the NI Act, 1881 and he is sentenced to undergo simple imprisonment for

3 (three) months and further to pay compensation of Rs.1,60,000/- (Rupees One

Lakh Sixty Thousand) only to the complainant as the total cheque amount of the

two impugned cheques was Rs.80,000/-(Rupees Eighty Thousand) only and more

than 3 years and 10 months have elapsed from the date of issuance of the

cheques. It is further directed that the convict shall undergo simple imprisonment

for another 1 (one) month in default of the payment of compensation.

54. Furnish a free copy of the judgment to the convict immediately.

55. The case is disposed of on contest.

56. Given under my hand and seal of this Court today the 7th of February, 2020 at

Kamrup (Metro), Guwahati.

(Dimpy Naroh)

Judicial Magistrate First Class

Kamrup (M), Guwahati


18 | P a g e

APPENDIX

(A) Complainant’s Exhibits:

(i) Exhibit 1- Undertaking-Cum-Promissory Note dated 30.06.2014 and


(ii) Exhibit 2- Undertaking-Cum-Promissory Note dated 31.07.2014 and


(iii) Exhibit 3- Cheque bearing No. 000038 dated 06.04.2016 for

Rs.50,000/- and Exhibit 3(1)- Signature of the Accused Shri Partha

Sarathi Chakraborty

(iv) Exhibit 4- Cheque bearing No. 000039 dated 06.04.2016 for

Rs.30,000/- and Exhibit 4(1)- Signature of the Accused Shri Partha

Sarathi Chakraborty

(v) Exhibit 5- Cheque Return Memo dated 14.06.2016

(vi) Exhibit 6- Cheque Return Memo dated 14.06.2016

(vii) Exhibit 7- Advocate Notice dated 17.06.2016 and Exhibit 7(1) and

Exhibit 7(2)- Signatures of the Advocate Narayan Sharma

(viii) Exhibit 8- Postal receipt No. KRS 450160981IN dated 17.06.2016

(ix) Exhibit 9- Returned A/D card sent with Advocate notice dated

17.06.2016

(B) Defense Exhibits:-

(i) Exhibit A- Details of Cheque bearing No.940984 and Cheque bearing

No.940985 and mentioning that the said cheques were made in favour

of one Mr. Aparup Hazarika.

(ii) Exhibit B- Account Statement from the month of January 2015 to July

2015.

(iii) Exhibit C- Receipt dated 17.07.2015

(iv) Exhibit D- Receipt dated 29.12.2014

© Witnesses Exhibits:-NIL


19 | P a g e

(D) Complainant’s Witness:-

PW 1- Md. Sagir Ahmed

(E) Defense Witness:-

DW 1- Shri Partha Sarathi Chakraborty

DW 2- Smt. Nila Chakraborty

(F) Court Witness:-NIL

(Dimpy Naroh)


Kamrup (Metro), Guwahati


20 | P a g e

C. R. Case No.2403c of 2016

ORDER

07/02/2020 Complainant is present.

Accused is present.

Judgment is pronounced and delivered in the open Court. Judgment pronounced

is tagged with the case record.

In the result, the complainant has been able to prove that the accused person is

guilty of committing offence punishable u/s 138 of the Negotiable Instruments Act,

1881.

Considering the nature of the offence and the other attending facts and

circumstances of this case, the accused is sentenced to undergo simple

imprisonment for 3 (three) months and further to pay compensation of

Rs.1,60,000/- (Rupees One Lakh Sixty Thousand) only to the complainant as the

total cheque amount of the two impugned cheques was Rs.80,000/-(Rupees Eighty

Thousand) only and more than 3 years and 10 months have elapsed from the date

of issuance of the cheques. It is further directed that the convict shall undergo

simple imprisonment for another 1 (one) month in default of the payment of

compensation.

Furnish a free copy of the judgment to the convict immediately.

The case is disposed of on contest.

(Dimpy Naroh)


Kamrup (M), Guwahati


21 | P a g e

IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS, …kamrupjudiciary.gov.in/feb 20/dj feb...

Documents

Transcript of IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS, …kamrupjudiciary.gov.in/feb 20/dj feb...