Tripura High Court
Smt. Soma Dhar (Deb) vs Shri Pradip Shil on 20 December, 2021 THE HIGH COURT OF TRIPURA
AGARTALA
CRL A 03 OF 2019
Smt. Soma Dhar (Deb),
W/o Shri Sujit Deb, resident of Khayerpur, Dhalura,
P.O. Khayerpur, P.S. Bodhjungnagar,
District-West Tripura.
…. Appellant
– Vs –
1. Shri Pradip Shil,
Proprietor of “Pradip Saloon”
Masjit Patty, Agartala,
P.S. East Agartala, District-West Tripura,
PIN-799001.
2. The State of Tripura.
….Respondents
BEFORE
HON’BLE MR. JUSTICE ARINDAM LODH
For the appellant : Mr. H.K. Bhowmik, Advocate.
For the State-respondent : Mr. S. Lodh, Advocate.
Date of hearing and : 20.12.2021
date of delivery of
Judgment & Order
Whether fit for reporting : No
Judgment & Order (Oral)
The present appeal is directed against the judgment of acquittal
dated 11-12-2018, passed by learned Addl. Chief Judicial Magistrate, West
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Tripura, Agartala, in connection with Case No.NI 93/2015, whereby the
learned Court has acquitted the accused-respondent [here-in after referred to
as the accused].
2. Briefly stated, the complainant-appellant [here-in-after referred to
as the complainant] filed a complaint under Section 138 of the N.I. Act, 1881
[here-in-after referred to as the NI Act] for dishonour of cheque No.246648,
dated 10-11-2014, drawn on Corporation Bank, Agartala Branch for
Rs.50,000/- against Account No.130001601000035. It is the case of the
complainant that out of a business transaction of Vadilal Ice-cream, the
accused had a debt of Rs.1,50,000/- and out of the said debt, the accused had
issued the above noted cheque in favour of the complainant. The complainant
had deposited the said cheque twice, but, on both the occasions, it was
informed to the complainant that the cheque was returned with the remark
‘insufficient fund’ in the account of the accused. On negotiation with the
accused, the complainant had lastly deposited the said cheque dated 10-11-
2014 to her banker i.e. the State Bank of India, MBB College Branch on
12.01.2015. On the same day, her banker (SBI) had received written
communication from the banker (Corporation Bank) of the accused by way of
return Memo dated 12-01-2015 that the said cheque was dishonoured due to
‘insufficient fund’. It is the case of the complainant that since she was out of
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station and returned back on 31-01-2015 she had gathered knowledge of such
dishonour of cheque from her banker on her query with the bank.
Consequently, the complainant had served legal notice upon the accused on
02-03-2015 by registered post demanding the payment of Rs.50,000/-, the
amount of the dishonoured cheque. Despite the receipt of the said demand
notice, the accused had failed to repay the said amount to the complainant.
Thereafter, the complainant was compelled to file the complaint petition under
the N.I. Act.
3. Notice was served upon the accused and he appeared and
contested the case.
4. Accused was examined under Section 251 of CrPC for
committing offence punishable under Section 138 of N.I. Act by the learned
trial court to which he pleaded to not guilty and claimed trial.
5. At the commencement of trial, the complainant had examined
himself and cross-examined. The complainant had submitted the copy of the
legal notice [Exbt.5/1 to 5/4] and the copy of the relevant cheque [Exbt.1]; the
returned Memo. [Exbt.4] issued by Corporation Bank to the banker of the
complainant i.e. SBI, MBB College Branch and the copy of intimation
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[Exbt.7] regarding serving of the notice from which it transpires that the
respondent had received the demand notice dated 02-03-2015 on 04-03-2015.
6. On conclusion of recording of evidence, the accused was
examined under Section 313 CrPC to which he denied the allegations levelled
against him by the complainant and declined to adduce evidence.
7. Having heard the arguments advanced by learned counsels of the
parties, learned court below held that the complainant had failed to
substantiate that the demand notice was served upon the accused within
statutory period of 30 days. Learned court further held that the complainant
also had failed to establish that she had any enforceable debt to the accused
and ultimately acquitted the accused.
8. Being aggrieved by and dissatisfied with the judgment and order
of acquittal, the complainant has filed the instant appeal before this court.
9. I have heard Mr. H. K.Bhowmik, learned counsel appearing for
the complainant. Also heard Mr. S. Lodh and Mr. B. Paul, learned counsels
appearing on behalf of the accused.
10. Mr. Bhowmik, learned counsel has submitted that the learned
court below has miserably failed to appreciate the evidence and materials on
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record. Furthermore, according to learned counsel for the complainant, learned
court below decided the case on the basis of conjectures and surmises. Mr.
Bhowmik, learned counsel has submitted that the learned court below ought to
have accepted the evidence of the complainant that when the information of
dishonour of the cheque in question was received by her banker, at that time
she was out of station. Learned counsel for the complainant also criticized the
findings of the learned court below in respect of the fact that the demand
notice was not issued within statutory period of 30 days from the date of
information of such dishonour of cheque. According to learned counsel for the
complainant, the cheque was issued well within statutory period of time as
prescribed under Section 138 of N.I. Act.
11. On the other hand, Mr. Lodh, learned counsel appearing for the
accused has submitted that the findings as arrived at by learned Additional
Chief Judicial Magistrate are based on the evidence and material records as
stated and introduced by the complainant herself. Mr. Lodh, learned counsel
has also tried to persuade this court that since the present appeal is against the
order of acquittal, there is double presumption of innocence of the accused.
Mr. Lodh, learned counsel has submitted that the complainant has failed to
substantiate the fact that she was out of station at the relevant point of time.
Furthermore, Mr. Lodh, learned counsel has invited my attention to the
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statement made in her cross-examination where she categorically stated that
she had no business relation with the accused.
12. I have given my thoughtful consideration to the submissions as
rendered by learned counsels appearing for the parties. At the outset, I have
perused the findings of the learned court below while returning the judgment
of acquittal in favour of the accused. Learned trial court held thus:
“However, in her cross-examination the complainant inter-alia
stated that she had business relationship with the accused and thus, this
admission of the complainant in her cross-examination is suicidal in
nature and it completely destroys her case in the sense that it creates
doubt regarding existence of any debt or liability of the accused in
favour of the complainant.”
Again, learned trial court had reproduced a part of the statements,
which the complainant stated in her examination-in-chief which are as under:
“When depositing the said cheque for encashment on 12.1.15
I came to know that the cheque was dishonoured.”
After quoting the said statements, learned court below held that–
“Thus, from the admission of the complainant herself extracted
above it is clear that she received information about the dishonor of the
cheque on 12.1.15 itself and therefore she ought to have issued the
statutory demand notice within thirty days of 12.1.15, but she failed to
do so and issued it on 2.3.15 i.e., after the period of thirty days of
receipt of information about the dishonor of the cheque. This is a vital
and fatal flaw in the case of the complainant and the case of the
complainant is not maintainable on this court alone. Moreover, it is
also significant to note that the complainant has also failed to produce
even a scrap of paper to support her assertion that she was out of
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station w.e.f. 12.1.15 to 30.1.15 and in the absence of any documentary
proof such assertion of the complainant is difficult to believe.”
13. I have meticulously considered the above findings returned by
learned Additional Chief Judicial Magistrate. I have scrutinized the evidence
and documents introduced by the complainant. Firstly, after going through the
demand notice dated 02.03.2015, it transpires that learned Advocate on
instruction of the complainant had written that she submitted the cheque on
12.01.2015 for encashment, but, on the same date, the banker of the accused
had issued a returned Memo stating inter alia that as the fund was insufficient,
the cheque was returned back. In the said demand notice, the complainant did
not state that she was out of station at the relevant point of time.
14. I am not unmindful of the fact that in the legal notice all facts
need not be stated, but, I have taken note of this for the purpose of reference in
the context of the present case. It is further noticed by this court that being
confronted with cross-examination, the complainant has stated that when
depositing the said cheque for encashment on 12.01.2015, she came to know
that the cheque was dishonoured and she had served the Advocate’s Notice
upon the respondent on 02.03.2015. So, the complainant is found to be very
categorical in her statement that on the same date i.e. on 12.01.2015 when she
deposited the cheque to her banker, on the same day, she came to learn about
the dishonour of the said cheque. In such circumstance, in my opinion, the
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complainant ought to have established the fact that she was out of station at
the relevant point of time and she returned back on 31.01.2015. But, it is
noticed that she has not adduced any such evidence in order to prove her
absence during that period and staying her at a place other than that of her
permanent residence at Agartala and she received the information about the
dishonour of cheque only on 31.01.2015. One more striking point is that,
usually, after receipt of the returned Memo intimating the dishonour of
cheque, the banker would intimate the person who deposits the cheque for
encashment, but, the complainant has not brought on record the said
intimation given by her banker i.e. SBI, the reason best known to her. It is also
surfaced in her cross-examination that she has categorically stated that “it is a
fact that I have no business relation with the accused.”
15. In my opinion, in view of such statements made by the
complainant at the time of her cross-examination, there was obvious reason
for the trial court to come to a finding that the complainant has failed to
establish her case that she had any business relation with the accused.
16. On appreciation of the entire evidence, it may also be a possible
view that the complainant had business relation with the accused, but, in view
of the settled position of law as enunciated by the Apex Court in Chandrappa
& Ors. Vrs. State of Karnataka, reported in (2007) 4 SCC 415 etc., the court
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should not embark upon to disturb the finding of acquittal recorded by the trial
court only because that another view is possible. In Chandrappa (supra), the
apex court has laid down the principle as under:
“Hence, even though we are of the opinion that in an appeal
against acquittal, powers of appellate Court are as wide as that of the
trial Court and it can review, reappreciate and reconsider the entire
evidence brought on record by the parties and can come to its own
conclusion on fact as well as on law, in the present case, the view taken
by the trial court for acquitting the accused was possible and plausible.
On the basis of evidence, therefore, at the most, it can be said that the
other view was equally possible. But it is well-established that if two
views are possible on the basis of evidence on record and one
favourable to the accused has been taken by the trial Court, it ought not
to be disturbed by the appellate Court. In this case, a possible view on
the evidence of prosecution had been taken by the trial Court which
ought not to have been disturbed by the appellate Court.”
17. Furthermore, it is settled proposition of law that for rebutting
the fact that might lead to the presumption under Section 139 of the N.I.
Act, the standard of proof is of preponderance of probabilities, which the
accused in the present case has been able to rebut.
18. In the light of above discussions, the instant appeal stands
dismissed.
JUDGE
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