C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 1

IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS AT

BOKAKHAT, DISTRICT GOLAGHAT

C.R.CASE.No. – 21/2013

U/S 138 N.I. Act

Sri Shiv Dhyan Yadav

………………. Complainant

-Versus-

Sri Sunil Kumar Das

………… accused persons.

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.

Advocate appearing for the accused:- Mr. A.K. Sharma, Mr.J.C.Kalita and Mr. B.Das.

Dates of Prosecution evidence:- 22/09/14, 17/11/14 and 03/03/15.

Dates of recording 313 Statement of the accused persons:- 14/05/15.

Date of Argument:- 09/07/15

Date of delivering Judgment: - 12/06/15

J U D G M E N T

1. Prosecution case in brief is that on 21-06-2013, one Sri Shiv Dhyan Yadav, s/o Mr.

Mahgulal Yadav, lodged a complaint before learned Chief Judicial Magistrate,

Golaghat alleging inter alia that the accused Sri Sunil Kumar Das, s/o Mr. Ramdhan

Das taking advantage of long standing acquaintance and good relationship, on

23/11/12 approached the complainant for a loan of Rs. 3,33,000.00 (Rupees three

lakhs thirty three thousand only) showing cause that he was on urgent need of

money and promised to repay the loan amount within one month. Accordingly, on

good faith the loan of Rs. 3,33,000.00 (Rupees three lakhs thirty three thousand

only) was given to the accused by the complainant. After one month when the

complainant asked for the money the accused seeked for some more time,

thereafter on 30/01/13 the accused issued an account payee cheque bearing No.

171104 dated 30/01/13 of Rs. 3,33,000.00 (Rupees three lakhs thirty three thousand

only)in favour of the complainant drawn on Indian Bank, Bokakhat Branch for

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 2

discharging his liability. That on 26.03.13 the said cheque was deposited by the

complainant for payment with Assam Gramin Vikash Bank, Bokakhat, but the cheque

returned unpaid to the complainant with a remark “Insufficient Funds” in the

account of the accused person. Thereafter, the complainant sent a pleaders notice to

the accused on 25.04.13 vide Registered A/D letter No. B-RS029876995IN RLAD

GOLAGHAT from Golaaghat Post Office for demanding the money within 15 days

from the receipt of the notice and on 30/04/13 the sid notice was duly served on the

accused, but despite receiving the notice the accused did not make payment of the

dishonored cheque and also failed to reply to the said notice. The complainant

further stated that due to his illness there was a delay of 8 days in filing the

complaint hence he also filed a condonation petition for the same.

2. 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. Notice

was issued to the accused for making his stand on the condonation. Thereafter on

05/02/14 accused surrendered before the court and was allowed to go on bail. Also,

on the same date as the accused did not raise any objection on the condonation

hence it was allowed. On 28/04/14 the complainant filed initial deposition on

affidavit. Vide order dated 28-04-2014, 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 12/08/14 this

case was transferred to this court for disposal as this court has the jurisdiction to try

this case.

3. During trial complainant Sri Shiv Dhyan Yadav examined himself as P.W.1, Sri

Dhirendra Kumar Das, Manager of Assam Gramin Vikash Bank, Bokakhat as P.W 2, Sri

Thandi Bahadur Newar Branch Manager Indian Bank, Bokakhat Branch as P.W. 3, Sri

Swaraj Nath, Post Master, Bokakhat Post Office as P.W. 4.

4. 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 but he declined the facts that he approached the

complainant for any loan, or he issued any cheque in favour of the complainant. He

also declined the fact that he got any demand notice.

5. 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.

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 3

6. 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. Rangappa vs Sri Mohan 2010 SAR (Criminal) 568

Case Laws submitted/relied by accused side:-

i. Jose Pullan vs Uma Jasrasia 2011 (2) GLT 757

7. 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.

8. POINTS FOR THE DETERMINATION ARE:

i) Whether the complainant has advanced a loan of Rs. 3,33,000.00 (Rupees three

lakhs thirty three thousand only) to the accused on good faith?

ii) Whether the accused has issued the cheque No. 171104 dated 31-01-2013 drawn

on Indian Bank, Bokakhat Branch for the amount of Rs. 3,33,000.00 (Rupees three

lakhs thirty three thousand only) to the complainant in discharge of the above

referred debt?

iii) Whether cheque No. 171104 dated 31-01-2012 was bounced due to “Insufficient

funds” in the bank account of accused?

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

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

9. DECISION AND THE REASONS THEREON:-

10. Let us first discuss the evidence on record.

PW 1 Shiv Dhyan Yadav the complainant in his evidence deposed that he and the accused

were friends and had a good relation. On 23/11/12, the accused requested him for a loan of

Rs. 3,33,000.00 (Rupees three lakhs thirty three thousand only) only for a period of 1 month,

as he was in need of urgent money. Accordingly, keeping his request the said money of Rs.

3,33,000.00 (Rupees three lakhs thirty three thousand only) was given to the accused on

good faith. After one month when the complainant asked for the money, the accused

seeked for one more month and after several demands the accused on 30/01/13 the

accused issued him a cheque bering no. 171104 dated 30/01/13 drawn on Indian Bank,

Bokakhat Branch for Rs. 3,33,000.00 (Rupees three lakhs thirty three thousand only) against

discharge of his liability in favour of him. The said cheque was deposited by him on 26/03/13

in his account at Assam Gramin Vikash Bank, Bokakhat Branch, but it was returned unpaid

with remark “Insufficient Funds” in the account of the accused on 26/03/13 itself.

Thereafter, pleaders notice was send to the accused by the complainant on 25/04/13

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 4

through registered A/D in demand of the amount of the loan within 15 days from the receipt

of the notice. The said notice was received by the accused on 30/04/13, but inspite of

receiving the notice the payment was not made and also no any reply was forwarded by the

accused.

He exhibited the cheque No. 171104 dated 30/01/13 given to him by the accused as Exhibit

1.

The cheque deposit voucher dated 26/03/13 as Exhibit 2, the cheque returning memo dated

26/03/13 as Exhibit 3, the copy of the lawyer’s notice dated 25/04/13 as Exhibit 4, the

postal receipt as Exhibit 5, the registered A/D card as Exhibit 6.

In his cross examination PW 1 admitted that his monthly income is Rs. 20,000/-

approximately and has Income Tax file. He further admitted that on 23/11/12 the loan of Rs.

3,33,000.00 (Rupees three lakhs thirty three thousand only) which he gave to accused,

during that time he did not made any affidavit regarding giving of the loan amount. He also

admitted that the amount of Rs. 3,33,000.00 (Rupees three lakhs thirty three thousand only)

was given at once to the accused as the said amount was in his hands as savings. He also

admitted that after one month of giving the loan to the accused he had not send any notice

to the accused in demand of the said amount. He stated that at the time of giving the said

loan amount no one was present. He also stated that he do his business transactions in cash.

He further admitted that from the date of giving the loan to the accused till the accused

issued to the cheque on 30/01/13 he daily kept in contact with the accused demanding the

money and till the cheque was issued to him by the accused no case was filed by him. He

stated that due to another person issued a legal notice under NI act to him as he do not have

a cheque book, therefore to make up the time limit he took a cheque from accused Sunil

Das. He admitted that on 30/01/13 when the accused issued the cheque no any agreement

was made by them. He declined the suggestion put by the defence that there was no legally

enforceable liability of the accused, he further declined the suggestion that as no agreement

was made between them at the time of giving the loan and due to absence of witnesses

there is no legally enforceable liability on the accused. He admitted that he has not exhibited

his tax file. He further declined the suggestion of the defence that on 23/11/12 no loan was

given by him to the accused and also as the amount of loan was not given through bank

hence no money was given to the accused. Further he stated that prior to 10 days of giving

the loan, the accused requested him for the loan. He stated that the loan to the accused was

given in his house and in his house his wife and his son was present also along with the

accused a driver was present.

11. PW 2 Dhirendra Kumar Das the Branch Manager of Assam Gramin Vikash Bank, Bokakhat

Branch in his evidence deposed that the complainant have account in his branch. The

cheque (exhibit 1) was deposited in his branch on 26/03/13 and also stated that the deposit

slip as Exhibit 2. Thereafter, on 26/03/13 the cheque was sent for collection to the Indian

Bank, Bokakhat Branch and on that that day itself the cheque was returned back due to

Insufficient funds. And that day i.e., 26/3/13 vide the cheque retunring memo (exhibit 3) the

complainant was informed about the same. He further admitted that the account number

which was in the Exhibit 2 was that of the complainant and on that account number the

cheque was deposited. The complainant took the said cheque and the return memo with

him.

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 5

In his cross examination he admitted that on 15/12/14 he joined a Branch Manager,

in the AGVB, Bokakhat Branch. He further admitted that the copy which he attached as

register, but there was no mention what copy it is. He further admitted that in the exhibit 3

(cheque returning memo) there was no mention about the date of the deposit of the

cheque. He also admitted that in Exhibit 3 clause 15 it was shown as “Exceed Arrangements”

but it was cancelled and wrote as “Insufficient Funds” and there was no initials of the Branch

Manager. He further admitted that he do not know from when the complainant has account

in his bank. He also admitted that after his joining no any transaction was made from the

account of the complainant. He also stated that when a cheque is dishonoured the

procedure that is followed is that the cheque returning memo is given to the person. He

declined the suggestion of the defence that as the complainant is a account holder in his

bank therefore he has deposed false evidence in favour of the complainant.

12. PW 3 Sri Thandi Bahadur Newar, Branch Manager, Indian Bank, Bokakhat Branch deposed

in his evidence that the accused Sunil Das have an account in his branch. And the cheque

(Exhibit 1) was given to his bank on 26/03/13 from the Assam Gramin Vikash Bank, Bokakhat

Branch for collection, but the same was returned to AGVB due to Insufficient Funds on the

same day itnself.

In his cross examination he admitted that on 26/03/13 who signed “in the reason” of

return in the Cheque return register he do not know. He also admitted that whether his

branch gave returning memo or not he do not know as he was not present at that time. In

normal procedure when a cheque is returned a cheque returning memo is given and it is

registered in the cheque return register and these job is done by the office peon. The name

of the office peon is Mukul Ch. Das and on 26/03/13 whether he was in the office he does

not know as no attendance register was brought by him today in the court. He also admitted

that in the 3rd column of the cheque return register there is no mention of the instrument

number and date, further he admitted that at present the accused is doing his transaction

from his branch. He further stated that whether the cheque was verified in his branch or not

he does not know.

13. PW 4 Swaraj Nath, Post Master, Bokakhat Post Office in his evidence deposed that he was

working as post master in the Bokakhat Post office since 11/12/12. He identified that Exhibit

5 is the registered A/D of a letter given to Sunil Kumar Das and the said Exhibit 5 is issued

from Golaghat and the same is delivered by Bokakhat Post Office. He admitted that as per

his computer record the said letter was delivered to Sunil Kumar Das on 30/04/13. He

further identified Exhibit 7 as the delivery particulars given by the Post office and Exhibit 7

(1) as his signature.

In his cross examination he admitted that in Exhibit 7 at the remarks column there

was no remarks because if it is delivered no remarks are given. He further admitted that

today in the court no delivery slip could be furnished because it is preserved for only 18

months and after 18 months it is destroyed, but when there is court attachment is it

preserved even after 18 months. In this case only computer records were submitted.

14. 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

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 6

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.

15. 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.

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

prosecution, it was held;”

16. 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.”

17. 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.”

18. 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 ----

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 7

“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.”

19. 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

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 8

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.”

20. 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.

21. 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

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 9

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.

22. 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. Accused did not raise any abjection to the condonation petition filed by the complainant

which was filed along with this complaint.

c. There is no denial by the accused about his signature in the cheque in question i.e.,

Exhibit 1

d. Accused accepted blank envelop has been received but not the legal notice.

e. 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.

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

23. 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) That the case has been filed after 8 days of statutory period, no prayer mentioning

condonation of delay.

iii) That the point no. 7 of the complaint petition was not mentioned in the copy which

was furnished to the accused person.

iv) There was no initial signature on the point no. 7 of the complaint petition which was

later on hand written.

v) Demand of money by the accused from the complainant is totally denied.

vi) The original demand notice was exhibited by the complaint side. As the original

demand notice was exhibited hence the notice is not send. No mention in the notice

which was exhibited as “office copy”.

vii) The signature of the accused was not exhibited in the Exhibit 1. Also no bank witness

exhibited the signature of the accused in the cheque in question.

viii) No signature of the accused in the A/D card (Exhibit 6). The A/D card was signed by

one Jyoti Das but who is Jyoti Das not proved by the complainant side.

ix) Source of income of the complainant not shown or proved, Tax file of the

complainant not exhibited. No agreement, or supporting document about taking of

loan.

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

admission of a fact.

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

xii) There is no legally enforceable debt or liability on the part of the accused.

24. 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.

25. Regarding the point i and ii:- That whether the complainant gave a loan of Rs. 3,33,000.00

(rupees three lakhs thirty three thousand only) to the accused and whether the accused in

discharge of the said loan issued the cheque in question is needed to be proved. It is found

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 10

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 Shiv Dhyan Yadav in his evidence stated that on 23/11/2012

the accused approached the complainant for a loan of Rs. 3,33,000.00 (rupees three lakhs

thirty three thousand only) showing his financial hardship and promised to pay the said loan

within one month, and due to good relationship the complainant on the same day gave the

loan on good faith.

But complainant in his cross examination deposed that 10 days prior to giving the loan the

accused approached the complainant for loan. This statement of the accused was not

mentioned in his complaint petition or in his evidence in chief.

The complainant in his complaint petition as well as in his examination-in-chief, mentioned

about borrowing of Rs. 3,33,000.00 by the accused as loan. He has not mentioned anything

as to the cause of the said borrowing to consider as to whether the debt alleged to have

been created is a legally enforceable debt or not. Even if we believe the admission of the

complainant regarding a debt, he has not proved any documents or any agreement between

the accused and himself to show that Rs. 3,33,000.00 is due from the accused. The amount

forwarded by the complainant to the accused is a huge sum of money, why no any

agreement or any written promissory note was executed while giving the loan was not

explained by the complainant. Also the complainant failed to prove that the accused

acknowledge the loan given to him by the complainant. Section 138 of Negotiable

Instrument Act provides that the debt must be legally enforceable debt. Complainant

admitted in his cross examination that the loan was given to the accused in the house of the

complainant and at the time of giving the loan complainant’s wife and his son were present

in his house, but then why the complainant did not adduce the evidence of his wife and his

son to substantiate his claim of giving the loan to the accused remains unclear.

The complainant in his cross examination admitted that on 30/01/2013 the accused gave

him the cheque, but the accused declined that he issued any cheque to the complainant.

The defence declined to admit the signature of the accused on the cheque in their

argument, but it is seen from the evidence on record that the complainant failed to prove

the signature of the accused through his evidence. Complainant adduced the evidence of

PW 3 who is the banker of the accused but the complainant failed to exhibit the signature of

the accused by him.

Also it is seen from the cross examination of the PW 1 the complainant, that the

complainant admitted that he is a businessman and he does his business transactions in cash

but he could not prove his income by exhibiting any income tax files to show that he is a

financially sound person to give loan of such a huge amount.

Hence considering all, I hold that the complainant has failed to prove the fact of giving loan

to the accused and also receiving the cheque in discharge of a legally enforceable debt.

26. Regarding the point iii:- whether cheque No. 171104 dated 30-01-2013 was bounced on

26/03/13 due to ‘insufficient funds’ in the bank account of accused? On this point

Complainant as PW.1 exhibited the cheque deposit voucher dated 26/03/13 as Exhibit 2, the

cheque returning memo dated 26/03/13 as Exhibit 3which shows that cheque in question

i.e., Exhibit 1 was dishonored due to “Insufficient funds” in the account of accused and the

said Return memos were signed and sealed by the bank. Apart from this complainant side

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 11

examined P.W.2 Sri Dhirendra Kumar Das and P.W.3 Sri Thandi Bahadur Newar who are the

competent witnesses as both of them are banker of the complainant and the accused

respectively. These prosecution witnesses also proved the fact of dishonor of Exhibit 1 (the

said cheque) due to Insufficient funds in the account of the accused. The Exhibit 3 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 “Insufficient funds” 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.

27. Now let us decide Point No iv, 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 exhibited a copy of the demand notice vide Exhibit 4. On perusal it is seen that

it is a complete and informative notice send by the advocate Ajit Saikia under instruction of

his client Mr. Shiv Dhyan Yadav the complainant in this case. Exhibit.5 is the postal receipt

showing dispatch of the notice at the address of accused by registered post with A/D on

25/04/2013 which was within the stipulated period from the dishonor of the cheques.

Exhibit. 6 is the A/D card regarding delivery of the notice to the accused on 30/04/13. The

complainant examined PW 4 Swaraj Nath post Master, Bokakhat Post Office, who exhibited

the post office particulars regarding delivery of the notice and identified his signature on it

as Exhibit 7 (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

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 12

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.

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

respect of filing of the case within the period of limitation. The cheque in question was

bounced on 26/03/13 as found from the A/D card, the legal notice issued on 25-04-2013 and

the same was received by the accused on 30/04/13 then the accused shall get a time for

fifteen days for payment and thus case of action for the case arose on 16/05/13 and the

present case was filed on 21-06-2013. As such the case was filed after 8 days from the

period of limitation. It is seen that a condonation petition was also filed along with the

complaint petition but found that there is no any mention of petition number in the said

petition. The period of limitation starts from 16/05/13 and ends on 14/06/15 i.e., 30 days.

The said condonation petition was supported by medical certificate as well as relevant

prescription issued by a doctor that the complainant was suffering from illness (type II

diabetic mellatius with hypertension) from 10/06/12 till 20/06/13.

The defence in their argument raised the plea that the case is barred by limitation and the

condonation petition was allowed without giving opportunity of hearing the accused side.

Moreover, there is no prayer in the complaint petition about condonation of delay and the

copy which was given to the accused did not contain paragraph 7 which is about the

condonation of delay.

From the perusal of the court orders passed by my learned successor in this case it is seen

that vide order dated 05/02/14, both sides were heard regarding the condonation petition

and the accused did not raised any objection to it and accordingly the condonation petition

was allowed and the complainant was allowed to submit initial deposition on affidavit. I do

not deem it fit and proper to disbelieve the order passed by my learned successor, and I hold

that complainant succeeded to explain the delay. As such the point is decided in favour of

the complainant.

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

able to prove that the cheque in question issued by the accused was dishonoured due to

insufficient funds, and that the legal notice was properly served upon the accused. But as

decided in point No. I and ii, the complainant failed to prove that he gave a loan of Rs.

3,33,000.00 (Rupees three lakhs thirty three thousand 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 cheque in question was issued by the accused in discharge of a legally enforceable

debt.

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 13

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

Instruments Act, 1881, against the accused Sunil Kumar Das beyond all reasonable doubt

and as such accused Sri Sunil Kumar Das 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.

31. 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 10 th day of August, 2015 at

Bokakhat, District Golaghat.

Saptarshi Garg

Judicial Magistrate First Class,

Bokakhat, Golaghat.

C R ( N I ) C A S E N O . 2 1 / 2 0 1 3 P a g e | 14

APPENDIX

PROSECUTION WITNESSES:-

1. PW 1 Sri Shiv Dhyan Yadav,

2. PW 2 Sri Dhirendra Kumar Das, Branch Manager Assam Gramin Vikash Bank, Bokakhat

Branch,

3. PW 3 Sri Thandi Bahadur Newar, Branch Manager, Indian Bank, Bokakhat Branch and

4. PW 4 Sri Swaraj Nath, Post Master, Bokakhat Post Office.

PROSECUTION DOCUMENTS:-

1. Exhibit 1 Cheque bearing No. 171104 dated 30/01/13 for Rs. 3,33,000.00 (rupees three lakhs

thirty three thousand only),

2. Exhibit 2 Cheque deposit voucher dated 26/03/2013,

3. Exhibit 3 the cheque returning memo dated 26/03/2013,

4. Exhibit 4 Copy of Lawyers notice dated 25/04/2013,

5. Exhibit 5, postal receipt,

6. Exhibit 6, A/D card,

7. Exhibit 7, delivery particulars of post office,

i. Exhibit 7 (1), Signature of PW 4 the post master on it.

DEFENCE WITNESSES:-

1. Nil.

DEFENCE DOCUMENTS:-

1. Nil.

Saptarshi Garg

Judicial Magistrate First Class,

Bokakhat, Golaghat.