In the Court of Judicial Magistrate First Class,Kamrup (M)

IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,KAMRUP (M)

Case No. C.R. 843 of 2008 u/s 138 of NI Act

Sri Jhantu Barman

S/O- Late Rajmohan Barman

R/O- Rupam Rava Path

Jatia, Guwahati- 6

Dist- Kamrup (M), Assam

………………….. Complainant

-Vs-

Sri Pradip Sarnakar

S/O— Late Bolai Sarnakar

C/O- House No 6, Hatigarh Namgarh Path

Santipath ( Near Hatigar Highschool)

Guwahati- 6

Dist- Kamrup(M), Assam

……………………. Accused

Present- Sri Nayanjyoti Choudhury, JMFC, Kamrup(M)

For the Complainant- Mr. B. Dey,….Learned Advocate.

For accused- Mr. N.N. Upadhaya,….Learned Advocate

Evidence recorded on—13-05-15, 13-10-15

Argument heard on- 14-12-15, 28-12-15

Judgment delivered on – 11-01-16

JUDGMENT

1. This is a case instituted under section 138 of the Negotiable 2

Instruments Act, 1881 alleging that the accused, Pradip Sarnakar had issued one cheque in favour of the complainant Jhantu Barman which was dishonored due to insufficient funds in the account of the accused. 2. The brief fact giving rise to the institution of this complaint case is that the complainant had been dealing in the business of supply of raw materials of ornaments with the accused and for the afore said business the accused had to pay an amount of Rs. 54,160/- only to the complainant. In discharge of his aforesaid liability the accused issued one account payee cheque bearing no. 466489 dtd 12-07-07 to the complainant amounting to Rs. 54,160/- only drawn on the Assam Co- Operative Apex Bank Ltd, Dispur Branch Guwahati. The complainant alleged that he deposited the cheque for encashment in State Bank Of India, Kahilipara Branch on 01-01-08 but the same was returned unpaid by cheque return memo dated 03-01-08 by his banker due to insufficient fund in the account of the accused. 3. The complainant then send one demand notice dtd 11-01-08 to the accused through his advocate by registered A/D post by demanding the cheque amount within 15 days from the date of receipt of the said notice. It was further alleged by the complainant that the accused received the demand notice on 14-01-08 and called up the complainant refusing to return back the cheque amount. The accused had not make the payment within the stipulated period of 15 days and as such the complainant lodged the case against the accused u/s 138 of The Negotiable Instruments Act, 1881. 4. The accused was called upon to enter trial and upon his appearance the particulars of offence under section 138 of the Negotiable Instruments Act,1881 was explained to him to which he pleaded not guilty and claimed to be tried. 5. The complainant adduced his evidence as PW 1 in support of his case whereas the accused adduced himself as a witness in his defence. 6. The accused in his statement u/s 313 of Cr.P.C. stated that he had not issued any cheque to the complainant. The accused stated that he used to keep cheque books in the shop of one Sunil Mandal. The accused went to Jorhat and after return he found that the shop of Sunil MAndal was closed for months so he informed the bank authority on 28-02-07 cheque no. 466485 to 466500 were lost. The accused further stated that the signature in the cheque was not his signature. The accused in his examination u/s 313 of Cr.P.C. further stated that he had not received any legal notice from the complainant. But the accused further stated that five months later from the date of missing his cheque book he received the legal notice. I have heard the learned counsels appearing for the complainant and the accused. 7. Upon hearing and on perusal of record I have framed the following points for determination in order to arrive at a definite finding as regards the dispute in this case-

1. Whether the accused issued the cheque for the discharge of any legally enforceable debt or liability towards the complainant? 2. Whether the cheque was dishonored for insufficient funds in the account of the accused? 3. Whether the accused received the demand notice issued by the complainant regarding the dishonor of the cheque? 4. Whether the accused has committed the offence under section 138 of the Negotiable Instruments Act,1881? 3

8. 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 advocate on behalf of the complainant and the learned advocate for the accused person.

DISCUSSION, DECISIONS AND REASONS :-

9. Point for determination no. 1:- Whether the accused issued the cheque for the discharge of any legally enforceable debt or liability towards the complainant:

10. The complainant as PW 1 deposed that he dealt with business of supply of raw materials of ornaments and the accused had been doing the same business with him since long. In the year 2007 the accused Pradip Sarnakar took gold ornaments and gold from the PW 1 and to discharge his debt issued one account payee cheaque bearing no. 466489 dtd. 12- 07-07 amounting to Rs. 54,160/- only drawn on Assam Co- Operative Apex Bank Ltd. Dispur Branch. In support of his deposition the complainant as PW 1 exhibited the cheque as Ext 1 and Ext. 1(1) was the signature of the accused. The accused has cross examined the PW 1 in this regard. The PW 1 in his cross examination deposed that the accused issued him the cheque on 12-07-07 to discharge his liability which arouse when the accused took articles made of gold and silver from the PW 1. In his cross examination the PW 1 denied the suggestions made by the accused to him wherein it were suggested that PW 1 took the cheque from Sunil Mandal and the accused never received any articles of gold and silver from the PW 1. The accused in his statement u/s 313 of Cr.P.C. stated that he had not issued any cheque to the complainant. The accused stated that he used to keep cheque books in the shop of one Sunil Mandal. The accused went to Jorhat and after return he found that the shop of Sunil MAndal was closed for months so he informed the bank authority on 28-02-07 cheque no. 466485 to 466500 were lost. The accused further stated that the signature in the cheque was not his signature. The accused in his evidence as DW 1 deposed that he has not given any cheque to the complainant. In his bank account his signature was in assamese language. The DW 1 further deposed that he has been working in Khan Jewelry Jorhat and near that jewelry there was a bakery shop wherein the DW 1 used to keep his cheque book. The DW 1 further deposed that his cheque book was lost and he informed the matter to the bank. The learned advocate for the accused submitted in his argument that the complainant himself admitted that the cheque amount was filled up by himself, hence the learned advocate for the accused submitted that the accused could not be held liable. Now Hon’ble Gauhati High Court in Indranil Talukdar Vs State of Assam and Another [(2013) 3 GLR 115] mentioned that in a complaint under section 138 of NI Act the initial presumption that the negotiable instrument must have been issued to discharge a legally enforceable debt or liability in favour of holder of the instrument, in view of section 118 (a) and section 139 of the Act, unless the contrary is 4

proved by the accused. Here the accused has not adduced any reliable evidence to show that his cheque book was lost. Though the accused deposed that he had informed the bank regarding the loss of the cheque book no officials from the bank were adduced by him to prove his stand. The accused denied his signature in the cheque but no evidence was adduced from the part of the accused to show that the signature in the cheque was not his signature. Though the complainant admitted that the cheque amount was filled up by him but it remains unclear that whether he filled the amount with or without the consent of the accused. 11. The section 139 of the NI Act provided that it shall be presumed that the cheque was issued for the discharge of a legally enforceable debt or liability unless the contrary is shown. In this instant case at hand I think the accused has not been able to discharge his burden to show that there is no legally enforceable debt from his part towards the complainant and he has not issued the cheques discharging his liability. 12. Hence from the above discussions it is held that the accused issued the cheque for the discharge of any legally enforceable debt or liability towards the complainant.

13. DECISSION:- the accused issued the cheque for the discharge of any legally enforceable debt or liability towards the complainant.

14. Point for determination no. 2:- Whether the cheque was dishonoured for insufficient funds in the account of the accused?

15. The PW 1 deposed that when on 01-01-08 he deposited the cheque in State Bank of India, Kahilipara Branch, Guwahati for collection it was dishonored by the banker of the accused due to insufficient fund in the account of the accused. The PW 1 exhibited the deposit slip and cheque return memos as Ext. 2, 3, 4 and 5. The PW 1 was cross examined by the accused in this regard. The PW 1 was asked by the accused that how many times he deposited the cheque in the bank to which he replied that he deposited the cheque twice before the bank i.e, on 12-07-07 and on 01-01-08. The PW 1 deposed that he deposited the cheque before State Bank of India and Apex Bank. The cheque was bounced for the first time on 01-01-08. The PW 1 deposed that he did not know when the cheque was bounced for the second time. The learned advocate for the accused further put a question to the PW 1 that whether he mentioned the number of the cheque return memos in his complaint petition or not to which PW 1 replied that he forgot whether he mentioned or not. The accused in his statement u/s 313 of Cr.P.C. stated that he did not know anything about the return memos. Now considering the exhibited return memos and in absence of anything from the accused side in his defence it is held that the cheque was dishonored for insufficient funds in the account of the accused.

16. DECISION:- It is held that the cheque was dishonored for insufficient funds in the account of the accused. 5

17. Point for determination no.3:- Whether the accused received the demand notice issued by the complainant regarding the dishonor of the cheques?

18. The PW 1 Paragjyoti Saikia in his evidence deposed that he send one demand notice dtd 11-01-08 to the accused through his advocate by registered A/D post by demanding the cheque amount within 15 days from the date of receipt of the said notice. It was further alleged by the complainant that the accused received the demand notice on 14-01-08 and called up the complainant refusing to return back the cheque amount and the accused had not made the payment within the stipulated period of 15 days. The PW 1 exhibited the legal notice which was marked as Ext 6 and the postal receipt was exhibited as Ext. 7. In the cross examination of the PW1 by the defence he was asked on which date he sent the legal notice to the accused to which the PW 1 replied that he had forgotten when the notice was send. 19. In his examination u/s 313 of Cr.P.C. the accused stated that he had received the legal notice. So considering all the aspects and the material available with the case record it is held that the accused has duly received the legal notice.

20. DECISION :- The accused received the demand notice issued by the complainant regarding the dishonor of the cheque.

21. Point for determination No.4:- Whether the accused has committed the offence under section 138 of the Negotiable Instruments Act,1881?

22. The offence under section 138 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 six months of its issuance or within its validity and that the notice regarding the dishonor of the cheque for insufficient funds ought to be given within 30 days of the receipt of information regarding the dishonor. 23. In the instant case at hand it is already held that the cheque was issued by the accused in the account maintained by him and that the said cheque was dishonored due to insufficient fund in the account of the accused. The cheques was issued in the instant case on 12-07-07 and was presented for encashment on 29-12-07 which was within six months from the date of issuance of the cheques. The cheque was dishonoured on 01-01-08 and 03-01-08 which were revealed from the cheque return memos; and the demand notice was issued by the complainant on 11- 01-08 which is within 30 days from the receipt of information of dishonor. The accused admitted that he received the demand notice. Since the accused is a resident of Gauhati it is presumed that he received the demand notice within seven days i.e, on 18-01-08. The complainant had thereafter instituted this complaint on 13-02-08 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. 6

24. In view of the above discussion it is held that all the ingredients of the offence 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 complaint; hence it is held that the accused, Pradip Sarnakar has committed the offence under section 138 of the Negotiable Instruments Act, 1881.

25. DECISION : The accused has committed the offence under section 138 of the Negotiable Instruments Act, 1881.

26. In view of the discussions made above and the decisions reached in the foregoing points for determinations it is held that the accused has committed offence under section 138 of the Negotiable Instruments Act,1881 and as such the accused is convicted under section 138 of the Negotiable Instruments Act,1881. 27. 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 offence is to provide quick remedy to the payee or the holder of the cheque, and also to install a sense of confidence and assurance to the business community. 28. 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 138 of the Negotiable Instruments Act, 1881 and he is sentenced to undergo simple imprisonment for 6 ( six) months and further to pay compensation of Rs.1,08,320/- ( Rupees One Lakh Eight Thousand Three Hundred Twenty) only to the complainant as the total cheque amount is Rs.54,160/- only and more than nine years have elapsed from the date of issuance of cheque. The amount of compensation is awarded double the cheque amount because even if the complainant would have kept the said amount in bank for this period then also this amount would have been double at the prevailing rate of interest. It is further directed that the convict shall undergo simple imprisonment for another two (2) months in default of the payment of compensation. 29. Furnish a free copy of the judgment to the convict immediately. 30. The case is disposed of on contest.

Given under my hand and seal on this 11th day of January 2016 at Guwahati.

Dictated and typed by me,

Nayanjyoti Choudhury Nayanjyoti Choudhury

Juducial Magistrate 1st Class Judicial Magistrate 1st Class

Kamrup(M) Kamrup (M) 7

APPENDIX

(A) Complainant Exhibits :

Ext.1- Cheque

Ext.2- deposit slip

Ext. 3, 4, 5- return memos

Ext. 6- legal notice

Ext.7- postal receipt

(B) Defence Exhibits :

Nil

(D) Complainant Witness :

PW 1- Jhantu Barman

(E) Defence Witness :

DW 1- Pradip Sarnakar

(F) Court Witness :

Nil