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IN TJ-IE COURT OF THE SUB DIVISIONAL JUDICIAL MAGISTRATE,.I

(S), II, KAMRUP (METRO)• ~ I .••

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CR CASE NO: 369c/2011

U/S. 138 N. I ACT'. .~;',

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COMPLAINANT: Sri Bipul Kr. Nath

Vs.

ACCUSED: Smti. Malati Chctri"....! ..• 1\

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w-,,~~..:~'r";-""M;,\oPRESENT: BANKIM SARMA, SDJM, (S), II, KAMRUP (MEETRO)

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This is a case instituted under section 138 of the Negotiilhll'"

Instruments Act, 1881 alleging therein that the accused, Smti Malati Chetri '

had issued a cheque in favour of the complainant which was dishonoured <111('

The brief facts giving rise to the institution of this complaint cas,' is, <

;!ltV·";"_"'I,; ••."~,~,,thataccused was the close friend of the complainant and during her finallcial:O;~~'1";"'l't,'''l'~'''f.:

crisis he gave her a loan of Rs. 600000/- ( Rupees Six Lacks) only. While hl', " .

. demanded the money she issued a cheque on 02-12-2010 towards the paYl1ll'nL' <', •

of lawful dues to the complainant bearing no: 285076 for I~s. 600000/- in.

fa"ouf of the complainant. The complainant accordingly deposited thl> s~lid .

cheque no. 285076 for encashment to S81, West Guwahati Branch, Guwahati

for collection but the same was returned unpaid due to 'Account Closed' vill,'

memo dated 04-12-2010

Th~ complainant thereafter issued demand notice to the accusc&~~~'i~r~,"~~~

thnHlgh registered post AID on 18-12-2010 demanding the amount of clll'qlJ(,' .I

by registered post A/D. The accused received the said notice but did not paid

the said amount. As the accused person failed to pay the cheque amount as'

such the eomplaimint lodged this complaint under section 138 of the

Nt>gotiable Instruments Act, 1881 on 09-02-2011.

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The accused was called upon to trial and upon his appearance

Accused also adduced evidence of one(l) witness, namely:('W'-··'~~'''''':''''-··;''·~'''D.W.ISmti Malati Chetry

313 CrPC is that she has no any legally enforceable debt or liability towanls

the complainant and she has no liability to pay the cheque amount. ACl'US(·d

denied the case on various grounds. She lost the impugned cheque and slw

filed an F.I.R at Dispur P.S. in this regard.

I have heard the learned counsels for both the parties and perused the cntin:

materials on record.

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

dispute in this case-

;'IW,··;..,~·,·,·.t".( I) Whether the accused issued the cheque for the discharge of any leg~HY~~~';·:'''';;''jt<}'''~\·I'';'·.

enforceable debt or liability?

(2) Whether the cheque was dishoilOured for insufficient fund the account of .

(3) Whether the accused received the demand notice issued hy the

complainant regarding the dishonor of the cheque?

(4) Whether the accused has committed the offence under section 138 of till'

Negotiable Instruments Act, 1881?

.w'··;..·: ..···': ..~'·nlSClJSSION, DECISION AND I~EASONS FOR THE DECISION:

The complainant had contended that the accused issued the chequl' IfI

question towards the payment of his liability.

The complainant Sri Bipul Kumar Nath as P.W.I has depos('d that

accused was the close friend of the complainant and during her financiall'risis

he gave her a loan of Rs. 600000/- ( Rupees Six Lacks) only. While he:w ~~V".·-.:~._~.-~ \. " '. ~'lf1~ofJII~Jtl.£;~\"/'ttt~~,

demanded the money she issued a cheque on 02-12-2010 towards the paynwnt .

of lawful dues to the complainant bearing no: 285076 for RS. 600000/- ill~

favour of the complainant. The complainant accordingly deposited the said·

cheque no. 285076 for encashment to SBI, West Guwahati Branch, Guwahati

rOt· collection but the same was returned unpaid due to 'Acco'unt Closed' vide

memo dated 04-12-2010. Ext.l is the said cheque, Ext.I(I) is her signature.

During cross examination P.W.I deposed that he knows the

accused very well and he had business relation with her husband. Ih~visitNI·

their house and office many times. He did some work with the husband of thl'

accused Sri Gautam Choudhury and "fhey developed a financial dispute.

Finally account was settled and complainant was supposed to get Rs. 6 lal's

from Sri Gautam Choudhury. Mr. Choudhury told him in presence of the

accused that he has less amount in his bank account. He gave the cheque from

his wife as he was liable to pay an amount of Rs.600000/- to the complainant..· ..'i'W" ".;~'.•.".:-'~~':.•' ...•. -",:,;,,·'!J.'!.:1\").}tl~"l'o!'~~.I'-M''''':~

Accused did not owe him anything but she gave the cheques for thl' dill'S of

her husband. The settlement was orally done. He has not produced any diary

·or book of accounts.

D.W.I Smti malati Chetry deposed that she has not issued an)'

cheque to the complainant. She does not know him at all. On 25-11-20tO she

filed an F.LR. before O/C. Dispur PS regarding the loss of the impu~ned

cheque. Ext. A is the copy of ejahar. She had signed over the cheque and kl'(lt

w" v. ·I--~ • .-•.it and it was lost. Her cheque book was kept at" the office of her husband, .at7~~1"J':~"/I"1'~'~"I";',",:~

Six mile, VI P road.

During cross examination she deposed that Ext.B is the copy of till'

summons. The address mentioned in the complaint petition, summons and

n()ti(.~e~tre correct address. The bank account was closed somewhere in thl'

year 20tO. She did not go to thl~ police station to inform that the complainant

had misused her lost cheque after she came to know about the C~lse.slw is

repaying the car loan for a car used by her husband.

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After carefully going through the entire evidence on reconl it

appears that the impugned cheque was given by the accused to the

complainant. The husband of the accused had a business relationship with thl'·

complainant. The signature in Ext.A was admitted by her. But as D.W.I

accused denied the fact that she issued the cheque, according to her she lost it.

Accordingly FIR was lodged by the accused in Dispur P.S. She closed Ill'r

bank account in the year 2010. Eventually the cheque was dishonoured while·

it was presented to the bank.

The perusal of the statement of the accused recorded under

section 313 CrPC show that the accused had completely denied that he Iwd

any legally enforceable debt or liability towards the complainant. But she

failed to substantiate her defense in my humble opinion.

The above evidence on record shows that the accused has hel·selfacknowledged the signature of the cheque in question. However, she has notput forward any evidence to support her contention that she has not issued thl'same in pursuance of payment of liability of her. husband to the tunc Rs.6 lacs .

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Sl'ction 139 of NI Act provides for a legal presumption that a cheque is issued" .for the discharge of a legally enforceable debt or liability. The evidence ll'd hythe complainant side is cogent, clear and convincing. There is nothing unrecord to disbelieve the P.W.1 evidence. So in my opinion he has proved th~l"the cheque was issued by the accused as such it is presumed th~lt the saml' W.IS

issued for discharge in whole or in part a legally enforceable debt or liabilit)J.Mere filing an F:I.R. in •• P.S. is not sufficient in such a situation. The accusNIhas failed to raise a probable defense and rebut the above presumption hy

bringing any material on record. Hence first issue is decided in favour of thecomplainant.

POINT FOR DETERMINATION NO.2: Whether the cheque was dishol1ouf'et!for insufficient funds in the account of the accused?

The complainant as P.W.l in his cvidcnce on affidavit depowdthat the aforesaid cheque was dishonourcd by the banker of thc accused videMemorandum dated 04-12-2010 due to account closed of the accused. P.\V.Icxhibited the said memorandum as Ext.3 and its reason for dishonfw isexhibited as Ext.2. The PWI was not cross examined in course of trial in thispoint, hence this portion of his testimony remained unrebutted. Morcon' •.•during D.W.l accused could not demolish the evidence of P.W.1. During hisrecording of statement of the accused Vis 313 of Cr.P.C. he simply e1l'Hied

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In addition to the above section 146 of the Negotiable Instntnu'ntsAct.1881 provides that the court shall presume the factum of dishonor ofcheque on the presentation of the cheque return memo. This presumptionhas ~llsoremained unrebutted.

DECISION: The cheque bearing no. 285076 of lls. 600000/.., onlyissued by the accused was dishonoured for 'account closed'.

POINT FOR DETERMINATION NO.3: Whether the accused receit'ed ,"e."1"i.' , ">',. {Iemand notice issued bv the complainant regarding the dishonor of lhe·''i~··i';~'''·'·'''''i·'''''·

cheque?

The PW 1 has deposed that he had issued the demand noticc ill

respect of the dishonor of the said cheque through his advocate on 18-12-2010

by registered post AID. The complainant has produced the said notice and I hl'

submitted that she has not received any demand notice from the complainant.

Now P.W.I stated that the AID card was not returned to him but thc pos!al.•.'fJr ~j,\:~""\\t>'..-r">,,""" ',y, ,~:

n~ceipt is available with the record( Ext.4). During D.W.I accused admitted

th~lt the address mentioned in Ext.4 is correct. So as per presumption lJ/S. 27

of General Clauses Act the notice is presumed to be served. It is c.tllcd·

wc have the postal receipt in the case record .. There is nothing on record lo

disbelieve the complai.nant evidence.

DECISION: The accused received demand notice dated 18-12-2010 isslll'dby the complainant.

POINT FOR DETERMINATION NO.4: Whether the accused has committedthe offence under section 138 of the Negotiable Instruments Act, /881?

The offence under section 138 is complete on the satisfaction of certain-';~";"·'·r:..""'<Y!'

conditions which are that the cheque has to be issued on the accountmaintained by the accused and that the cheque has to be issued for thedischarge of a debt or liability. It is further provided that the said cheque has tobe deposited within six months of its issuance or within its validity and that thenotice regarding the dishonor of the cheque for insufficient funds ought to begiven within 30 days of the receipt of information regarding the dishonor.

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In the instant case at hand it is already held that the impugnedcheque was issued by the accused and that the said cheque was dishonoureddue to account closed. The cheque was issued in the instant case on 02-12-2010

.··and it was presented within six months for encashment. The cheque was-'''':'·,<·,,.,'·,'·:e''I''';'~

dishonoured on 04-12-2010 and the demand notice was issued by thecomplainant on 18-12-2010, which is within 30 days from the receipt ofinformation of dishonor. The said notice was received by the accused by regd'post AID as per mandate of section 27 General ClausesAct. The accused failed'to pay the amount within 15 days of such receipt. The complainant hadthereafter instituted this complaint on 09-02-2011 within the stipulated time.

However the accused as D.W.l in his evidence failed to raise anyprobable defense in her favour. All the ingredients of the offence under.section 138 of the Negotiable 'Instruments Act,1881 are satisfied in the instant . .

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case and further the complainant has satisfied all the requisites for theinstitution of the complaint; hence it is held that the accused has committedthe offence ~nder section 138 of the Negotiable Instruments Act, 1881.

DECISION: In view of the discussions made above and the dccisionsreached in the foregoing points for determination it is held th~lt the ac~usl'dhas committed the offence under section 138 of the Negotiable Instrllml'ntsAct, 1881 and as such the accused is convicted under section 138 of thl'Ne~otiable Instruments Act, 1881.

I have heard the parties on the point of probation and I am notinclined to extend the benefit of the provisions of the Probation of Offenders.

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Act, 1958, because the offence committed is in the ~ature of an eeonomil'offl'nce and the backbone of the nation depends on a healthy economy.Moreover the real intention behind the enactment of the said offence is toprovide quick remedy to the payee or the holder of the cheque, and also to'

inspire a sense of confidence and assurance to the business community.

Considering the nature of the offence and the other attendin~facts and circumstances of this case, the accused is convicted of the offence

under section 138 of the Negotiable Instruments Act, 1881. I have heard fh~

accused on the point of sentence and she is sentenced to undergo simplcimprisonment for six (6) months. I have also heard the accused on thc pointof awarding compensation.SHe is to pay compensation of Rs.7,OOOOO(l~uPCCS-r'':'-'.'" ",,'V'N'.

scven lacs) only to the complainant as the cheque amount is for Rs.60()O()(t/-and about 3 years have elapsed from the date of issuance of chequc. It isfurther directed that the accused shall undergo simple imprisonmcnt foranotht'r three (3) months in default of the payment of compensation.

Given under my hand and the seal of this court on this the 23rd day of .June,.2014 at Guwahati.

J~!be>.",J<illnJ 1>JA')- II ....r;~"2-r; r- b-I YSDJM (5) No.-l,'"'

Kamrup (Metro) ~\$tnct.Guwanatl

PROSECUTION EXHIBITS:

Ext. I -- Chequer ~xt. :2 - Memo issued by bankExt. J .- Legal noticeJ·:xt.4- postal receipt.

()EFFI\ICE EXHIBITS:

Ext. A Reminder to Dispur P.S.

WITNESSES FOR THE PROSECUTION:

P. W.I- Sri Bipul Kr. Nath(Complainant),

DEFE~CE WITNESSES:

,P.W.l- Smti Malati Chetry(Accused)./1J~~~1~1

SRI BANKIM SARMA, A.'S

S.D.J .Mf;IJJ, f\ Rl-.j~MKamrup (Metro) District.GUW~