1 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.