In the Court of the
Learned 8th Judicial Magistrate, at Alipore, South 24 Parganas.
AC
no. 1923 of 2010
In
the matter of :
Sri
Sudeb Ghosh,
_________Complainant
-
Versus –
Sri
Alok Kumar Debgupta
_________Accused
WRITTEN NOTES OF
ARGUMENT
BRIEF
FACTS :
The Case of the
Complainant in brief is that the accused issued Two A/C Payee Cheque bearing
nos. 158139 dated 03-01-2010, for Rs. 35,000/- ( Rupees Thirty Five Thousand )
only, and Cheque bearing no. 158140, dated 04-01-2010, for Rs. 25,000/- (
Rupees Twenty Five Thousand ) only, totaling a sum of Rs. 60,000/- ( Rupees Sixty
Thousand ) only. the Cheques were drawn on Dhakuria Co-operative Bank Limited,
Dhakuria Branch, Kolkata – 700031, in favour of the Complainant, towards
re-payment of the financial assistance provided to the accused in the month of
December’ 2009, on his promise to repay the same as and when asked by the
complainant.
That the Cheques were
issued by the accused after much persuasion by the complainant to refund the
loan amount. That on 28-06-2010, the complainant deposited the said cheque in
his Bank i.e. HDFC Bank Limited, 6, Royd Street, Abhilasha – II, first floor,
Kolkata – 700016. But the cheques were returned to the complainant by the
drawer Bank vide Cheque return memo dated 29-06-2010, without any payment
thereof due to insufficiency of fund in the account of the accused.
That on receipt of
the cheque return memo on 29-06-2010, the complainant through his Advocate
served a Notice dated 07-07-2010, to the accused demanding payment of the
cheque values. The notice was received by the accused on 08-07-2010, but he
failed to make payment of the cheque amount after the lapse of the stipulated
period of 15 days from the date of receipt of the notice for payment of the
cheque amount. Hence, the present Complaint case has been lodged by the
complainant against the accused person for the offences committed to be
punishable under Section 138 of the Negotiable Instrument Act’ 1881.
DURING
PROCEEDING / TRIAL :
The Complainant filed
his initial deposition by way of affidavit. On perusal of the material on
record, cognizance was taken by the Learned Court, and summons was issued to
the accused person. On appearance of the accused person before the Learned
Court, the particulars of the offence punishable under Section 138 of the
Negotiable Instrument Act’ 1881, were read over and explained to him, which he
pleaded not guilty and claimed trial.
In order to prove his
case, the complainant examined only himself by way of filling his Evidence on
Affidavit and exhibited following documents :
|
Sl. No. |
Particulars’
|
Exhibit |
|
1 |
Cheque
no. 158139, dt. 03-01-2010 – Rs. 35,000 /- |
1 |
|
2 |
Cheque
no. 158140, dt. 04-01-2010 – Rs. 25,000 /- |
2 |
|
3 |
Return
memo of Cheque no. 158139, dt. 03-01-2010 |
1/1 |
|
4 |
Return
memo of Cheque no. 158140, dt. 04-01-2010 |
2/1 |
|
5 |
Demand
Notice dated 07-07-2010 |
3 |
|
6 |
Postal
receipt |
3/1 |
|
7 |
Delivery
information report |
3/2 |
In Cross Examination,
the Complainant stated the following :
A)
I am not a money lender therefore I do
not have money lending license.
B)
I do not pay income tax. I have no
income tax file.
C)
On being asked if there are other
monetary transactions in between you and accused person prior to this
transaction, witness replied more than 10 years elapsed. I cannot recollect at
present.
D) Though
I have written in para no.7 of my affidavit in chief that no A/D card has been
received from the end of my Advocate regarding demand notice, still I do not
take any intimation to collect the same or follow the facts through Post
Office.
E)
Exbt 3/2 shown to the witness who
after perusing the same replied that name of the accused has not been mentioned
therein. Moreover, at the last column, it has been mentioned as “Movement”.
F)
It could not be gathered from this
report from which office it was issued.
G) I
have not filed any deposit slip of my bank deposit of Exhibit 1 and 2.
H) Not
a fact both the cheques were filled up by me in my own handwriting.
I)
Fact that I had received Rs. 6,000/-
from Aloke Babu, after giving him Loan, through Cheque, though I cannot
recollect cheque no.
The accused person
was examined under Section 313 of Cr.P.C. The accused stated in the following :
i)
Yes I have given both of these cheques
to him.
ii)
I have nothing to say “ The PW1 stated
that complainant sent demand notice dated 07/07/2010 throgh his Learned
Advocate and demanded return of the dues within 15 days from the date of
receipt of the letter failing which he will take legal steps”
iii)
I have nothing to say “ The PW1
further stated that you duly received the said notice on 08/07/2010, as per the
status report available on the website of the postal department, and inspite of
receipt of the said notice, you did not pay the amount covered under the said
cheques”
iv)
Yes “ The PW 1 in support of his case
proved and exhibited all such documents which have been exhibited as Exbt. 1 to
3/2”
v)
I have nothing to say “ The PW1 also
stated that you wilfuly withheld the said sum and neglected to make payment”.
vi)
He had given me 45,000/- as loan, in
return to which I have given to him Rs. 60,000/- i.e. I have already paid him
Rs. 15,000/- extyra.
The accused did not
adduce evidence.
SYNOPSIS
OF DATES :
|
Sl. No. |
Date |
Particulars |
|
1 |
03-01-2010 |
Cheque
no. 158139, dt. 03-01-2010 – Rs. 35,000 /- |
|
2 |
04-01-2010 |
Cheque
no. 158140, dt. 04-01-2010 – Rs. 25,000 /- |
|
3 |
28-06-2010 |
Those
two cheques were deposited in Complainant’s Bank i.e. HDFC Bank Limited, 6,
Royd Street, Abhilasha – II, first floor, Kolkata – 700016 |
|
4 |
29-06-2010 |
1. Return memo
of Cheque no. 158139, dt. 03-01-2010 – fund insufficient 2. Return memo
of Cheque no. 158140, dt. 04-01-2010 – fund insufficient |
|
5 |
07-07-2010 |
Demand
Notice dated 07-07-2010, served by the Complainant’s Advocate, through Post
upon the accused, demanding value of those three cheques with in statutory
period of 15 days. |
|
6 |
08-07-2010 |
Accused
person is in receipt of notice as appeared from postal track report |
|
7 |
09-08-2010 |
Present
criminal proceeding lodged by the Complainant against the accused person |
DISCUSSION
:
1.
The Section 118 - Presumptions as to Negotiable Instruments says: 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; (b)as to date.- that every negotiable instrument
bearing a date was made or drawn on such date; (c) as to time of acceptance. - that
every accepted bill of exchange was accepted within a reasonable time after its
date and before its maturity;(d) as to time of transfer. - that every transfer
of a negotiable instrument was made before its maturity;(e) as to order of
indorsements. - that the indorsements appearing upon a negotiable instrument
were made in the order in which they appear thereon; (f) as to stamp. - that a
lost promissory note, bill of exchange or cheque was duly stamped; (g) that
holder is a holder in due course. - that the holder of a negotiable instrument
is a holder in due course; Provided that, where the instrument has been
obtained from its lawful owner, or from any person in lawful custody thereof,
by means of an offence or fraud, or has been obtained from the maker or
acceptor thereof by means of an offence or fraud, or for unlawful
consideration, the burden of proving that the holder is a holder in due course
lies upon him.
2.
The section 139 of the Negotiable Instruments Act, 1881 says: It shall
be presumed, unless the contrary is proved that the holder of a cheque received
the cheque of the nature referred in section 138 of the act for the discharge,
in whole or in part, of any debt or other liability.
3.
The 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.............. 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 nonexistence 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 Negotiable
Instruments Act. The accused has also an option to prove 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.
4.
In the reported case of Raman Finance Corpn. Vs Harmeet Singh
reported in 2007(2) ALD (Cri) 5, it is held that in the case u/s 138 of
N.I. Act the complainant has been put in a better platform than 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.
5.
In the instant case the accused in
order to disprove the presumptions, has failed to bring on record any such fact
and circumstances to show that the consideration and debt did not exist or
their non-existence is so probable that a prudent man would under the
circumstances of the case, act upon the plea that they did not exist.
6.
The accused did not deny the fact that
he is the owner of the cheque bearing no. 158139 dated 03-01-2010, for Rs. 35,000/-
( Rupees Thirty Five Thousand ) only, and Cheque bearing no. 158140, dated 04-01-2010,
for Rs. 25,000/- ( Rupees Twenty Five Thousand ) only, (Exhibit-1,2,). In fact he admitted in his statement u/s
313 of the Cr.P.C. that the cheque (Exhibit-1,2,) was dishonoured due to
insufficient fund in his bank account. Therefore, the presumption envisaged in
Section 118 of the Act can legally be inferred that the cheque (Exhibit-1,2,)
was made or drawn for consideration on the date which the cheque (Exhibit-1,2,)
bears. The Section 139 of the Act enjoins on the Court to presume that the
holder of the cheque (Exhibit-1,2,) received it for the discharge of debt or
liability. The Hon’ble Supreme Court of India in K. Bhaskaran v. Sankaran Vaidhyan
Balan & Anr, reported in AIR 1999 SC 3762,
held that the burden is on the accused to
rebut the aforesaid presumption. But the accused, in the instant case, clearly
failed to discharge this burden.
7.
In the instant case the accused has failed to prove the non-existence of consideration and
debt or liability with cogent evidence or by way of cross examination of the
complainant. Therefore, this Court presumes that the complainant (holder of the cheque)
received the cheque (Exhibit-1,2) for the discharge of debt or liability on the
part of the accused.
8.
Furthermore, in Hindustan Apparel Industries vs. Fair Deal Corporation, New Delhi
reported in AIR 2000 Gujarat 261, the full bench of Hon’ble Gujarat High
Court held that payment by cheque which if dishonoured would amount to
acknowledge of a debt and a liability. In the instant case, the accused has
failed to cast a doubt on the veracity of the complainant’s case. Therefore, in
view of the above propositions of law, it can well be concluded that the
accused had issued the cheque (Exhibit-1,2) to discharge his debt.
9.
In the light of the above discussion
of evidence on record, the complainant has successfully established that the
accused person issued the cheque (Exhibit-1,2,) to the complainant for the
discharge of legally enforceable debt and the cheque (Exhibit-1,2) was
dishonoured due to insufficient fund in the saving bank account maintained by
the accused.
10.
So far so good, but what needs to be
seen now is whether the complainant followed all the provisos to the section
138 of the Negotiable Instruments Act before filing the instant case against
the accused. The complainant in his complaint petition as well as in his
evidence stated that on receipt of the cheque return memo (Exhibit- 1/1, 2/1)
on 29/06/2010, he through his Advocate served a Notice dated 07/07/2010 to the
accused demanding payment of the Cheque amount. The Notice was received by the
accused on 08/07/2010, but he failed to make payment of the Cheque amount after
the lapse of the stipulated period of 15 days from the date of receipt of the
notice for payment of the Cheque amount.
11.
In the instant case the accused has
not denied the receipt of Advocate’s demand notice which is marked as Exhibit-3.
In fact the accused has admitted in his statement recorded u/s 313 of the Cr.
P.C. that he have nothing to say. The non-denial of fact is admission of the
fact. The fact admitted need not be proved. Hence, it is proved that the
accused had received the demand notice.
12.
The offence punishable under section
138 of the Negotiable Instruments Act, 1881 is completed on the satisfaction of
certain conditions which are that the cheque has to be issued on the account maintained
by the accused in a bank 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 six months of its issuance or within its validity and that the
notice regarding the dishonour of the cheque for insufficient funds ought to be
given within 30 days of the receipt of information regarding the dishonour. In
the instant case at hand it is already held that the cheque (Exhibit-1,2) was
issued by the accused person but the cheque was dishonoured. The cheque
(Exhibit-1,2) was dated 03/01/2010, & 04/01/2010, and on 28-06-2010,
the complainant deposited the said cheque in his Bank i.e. HDFC Bank Limited,
6, Royd Street, Abhilasha – II, first floor, Kolkata – 700016 for encashment. The cheque return memo (Exhibit- 1/1, 2/1)
further show that the said cheque (Exhibit-1, 2) was returned on the very next
day of its presentation i.e. on 29-06-2010 and that the demand notice was
issued by the complainant on 07-07-2010, which is within 30 days from the
receipt of information of dishonour. The accused received the Advocate’s demand
notice on 08-07-2010 as evident from Exhibit-3/2 which is postal track report.
The instant case was instituted on 09-08-2010, which is within one month after
the lapse of 15 (fifteen) days from the date of receipt of demand notice by the
accused; hence the complaint is lodged within the period of limitation.
13.
In the instant case the accused has
not disputed the capability of the complainant to lend the cheque amount to him
as loan. Hence, the complainant is financially capable of extending the cheque
amount as loan to the accused person. Further, the complainant has duly proved
that the accused issued him the cheque (Exhibit-1,2) for the discharge of a
debt. Further, presumption u/s section 139 of the Negotiable Instruments Act,
1881 well established that the complainant who is the holder of a cheque
(Exhibit-1,2) received the cheque (Exhibit-1,2) for the discharge of debt or
liability on the part of the accused. The accused has miserably failed to rebut
this presumption.
14.
It is, therefore, concluded that all
the ingredients of the offence punishable under section 138 of the Negotiable
Instruments Act, 1881 are satisfied in the instant case and further the
complainant has satisfied all the requisites for the institution of the instant
case.
CONCLUSION :
1.
In the light of the above discussion
of evidence and upon appraisal of the evidence on record, coupled with above
reasons it can be well established that the complainant has proved beyond
reasonable doubts that the accused person ALOK KUMAR DEBGUPTA is guilty of
committing an offence punishable under section 138 of the Negotiable
Instruments Act, 1881.
2.
The offence committed by the convict
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
legislation is to provide quick remedy to the payee or the holder of the
cheque, and also to instill a sense of confidence and assurance to the business
community. If the benefit of Probation of Offenders Act is given to the accused,
it will go against the spirit of the legislation. Therefore, it is desirable
not to extend the benefit of the provisions of the Probation of Offenders Act,
1958 to the accused person.
JUDICIAL
PRECEDENT :
1.
M/S. Kumar Exports vs M/S. Sharma
Carpets, (2009) 2 SCC 513;
2.
Raman Finance Corpn. Vs Harmeet Singh
reported in 2007(2) ALD (Cri) 5;
3.
K. Bhaskaran v. Sankaran Vaidhyan Balan
& Anr, reported in AIR 1999 SC 3762;
4.
Hindustan Apparel Industries vs. Fair
Deal Corporation, New Delhi reported in AIR 2000 Gujarat 261;
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