In the Court of 5th Judicial Magistrate at Bankura, Dist.-Bankura.

PRESENT: Mr. Sk. Md. Arif Hasan, 5th J.M., Bankura.

Case No. 413c/07
T.R. No. 248(A)T/07

Srikanta Upaddhay V/s Madhusudan Bhattacharya.

JUDGEMENT DELIVERED ON: March 06, 2014 Author: Mr. Sk. Md. Arif Hasan, 5th J.M., Bankura This is an action seeking criminalisation of Mr. Madhusudan Bhattacharya u/s 138 of Negotiable Instrument Act, 1881 (herein after referred to as N.I. Act.).

JUDGEMENT
This above all: to thine own self be true, And it must follow, as the night the day, Thou canst not then be false to any man. ........ William Shakespeare, [Hamlet]

Facts behind this action: 1. This case arises out of a dishonour of a cheque, which, according to Srikanta Upaddhay, was issued by Madhusudan Bhattacharya, the accused, in part discharge of his loan liability. According to him, Mr. Bhattacharya took loan @ 1, 50,000/- jointly from him and Sumanta Upaddhay, his cousin. It was taken on June 22, 2006. They both contributed equally. According to him, Mr. Bhattacharya had a good relationship with both of them. This was the reason for advancing him the loan. Later, Mr. Bhattacharya executed a promissory note dated June 29, 2007 acknowledging the loan. In this promissory note Mr. Bhattacharya undertook to repay the loan within July 15, 2007. On July 15, 2007 the promissory note fell due. It was not paid. 2. Subsequently, Mr. Bhattacharya issued the cheque no. 986581 of 83,000/- to Srikanta drawn on UBI, Krishnanagar Branch. It was issued on August 06, 2007 and, according to Srikanta, it was issued in part discharge of the loan liability. The Cheque was deposited for encashment on August 06, 2007. But it returned unpaid for insufficiency of funds. Srikantas banker intimated him about this dishonour on September 01, 2007. On September 14, 2007, he sent a demand notice to Mr. Bhattacharya demanding payment of the cheque amount within 15 days of receipt of the notice. But Mr. Bhattacharya failed to make the payment in terms of the notice. Hence, Srikanta brought this action against Madhusudan Bhattacharya, the accused. Examination u/s 251 Cr.P.C.: 3. Ld. Predecessor PO having, prima facie, been satisfied that there is sufficient ground for proceeding against Mr. Bhattacharya, had examined him u/s 251 Cr.P.C. The
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substance of accusation was read over and explained to him in his mother tongue. To this he pleaded his innocence and claimed trial. Hence the trial began. The defence: 4. During cross-examination, Mr Bhattacharya took the defence that he did not take any loan as alleged by Srikanta, nor did he execute the alleged promissory note. The promissory note is forged one and is not related to this case in any manner. Srikanta and Sumanta had approached Mr. Bhattacharya for help. They both were unemployed then; but somehow managed to arrange a contract with PWD. For obtaining this contract from PWD, they were required to show a credential of 1,00,000/-. But, the credit standing in their A/C was only 17,000/-. So, on their request Mr. Bhattacharya issued the cheque for showing it to the PWD authority to prove their required credentials and as soon as they convince the PWD authority, they would return it to Mr. Bhattacharya without using it for any other purpose. The cheque was never issued in discharge of any liability. But Srikanta in breach of his promise and dishonestly got the cheque dishonoured and lodged this case falsely. Trial: 5. Srikanta examined the following witnesses during trial: Srikanta Upaddhay (the Complainant) Ashoke Pal (Manager of Srikantas Bank) Samir Bandopaddhay (Manager of accuseds bank) Gour Ch. Dubey (Complainants law clerk) Durga Charan Upaddhay (Complainants uncle) Pranab Kr. Das (Law clerk of Ld. Adv Paritosh Das)

PW-1. PW-2. PW-3. PW-4. PW-5. PW-6.

6. The Prosecution proved the following documentary evidences in this case: The promissory note dt 29-06-07(marked with objection by accused) Exbt.-1. Signature of PW-4 on Exbt.-1 Exbt.-1/1. Signature of PW-5 on Exbt-1 Exbt.-1/2. The cheque no 986581 dt 06-08-07 Exbt.-2. Endoresement of BDCC bank on Exbt.-2 Exbt.-2/1 Cheque deposite slip dt 06-08-07 Exbt.-3. Return memo dt 31-08-07 Exbt.-4. Demand notice dt 14-09-07 Exbt.-5. Signature of PW-6 on Exbt-5 Exbt.-5/1. Postal receipt dt 14-09-07 Exbt.-6. A/D Card Exbt.-6/1. Extract of complainants Bank A/C statement Exbt.-7/1. Entry regarding exbt-2 in the Exbt-7/1 Exbt.-7. Extract of accuseds Bank A/C statement Exbt.-8. Extract of cheque return regd of accuseds banker Exbt.-9. 7. Mr. Bhattacharya was examined u/s 313 Cr.P.C. I had asked him to know if he desires to tender any evidence or witness; but he declined from tendering any witness.
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Points for Determination: 8. With reference to the contest of this case, I would frame the following points for deciding this case: a) Did Mr. Bhattacharya issue the Exbt.-1 to Srikanta? If issued, was it in discharge of any debt or other liability? If yes, then was such debt or other liability legally enforceable? b) Was the Exbt.-1 returned unpaid for insufficiency of fund? c) Was the demand notice, valid? d) Is Mr. Bhattacharya guilty of crime u/s 138 N.I. Act? e) Has Srikanta been able to prove Mr. Bhattacharya guilty beyond all reasonable doubts?

DECISION WITH REASONS

**I** Point No. (c): 9. Both Srikanta (PW-1) and Prnab (PW-6) had proved the copy of demand notice. It was marked as Exbt-5. It is true that Mr. Bhattacharya did not dispute the validity of the demand notice. Nevertheless, it is my duty to see if it was in terms of S. 138 N.I. Act or not. Having carefully perused the Demand notice (Exbt-5), the A/D card (Exbt.-6/1) as well as the postal receipt (Exbt.-6), I am sure that the notice was valid and in terms of s.138 NI Act. It was issued on 14-09-07. The return memo i.e. Exbt-4 suggests that the date of dishonour was 31-08-07. Srikanta in his evidence said that he was informed about the dishonour on the next date by his banker. Even if, I ignore this evidence, still the notice was issued on the 14th day of dishonour. The Exbt.-4 was, therefore, issued within the limitation required by S. 138 N.I. Act. The notice also contains averment regarding time period within which the cheque amount is to be paid and the time given for such payment was 15 days as required by S.138 N.I. Act. I would, therefore, hold that the Demand notice was valid and legal and decide this point in favour of Srikanta. **II** Point No. (b): 10. So far as Srikantas claim regarding Exbt.-2s dishonour is concerned, there is a couple of evidence on record. One is the oral evidences of Srikanta (PW-1), and Mr. Bandopaddhay (PW-3). They both said in their evidence that the cheque no 986581 dt 06-08-07 was dishonoured. This Mr. Bandopaddhay was the Manager of Mr. Bhattacharyas Banker. The other is return memo(Exbt.-4) supported by Exbt-9. As far as the Mr. Bhattacharyas stand is concerned, he did not dispute this factum of dishonour. He neither asked either the PW-1 or PW-3 anything regarding this factum; nor took any denial disputing Srikantas claim about Exbt.-2s dishonour. The Exbt.-4 clearly suggests that the cheque was dishonoured. Let me say at once that Section 146 N.I Act attaches a great weight to the Banks slip like Exbt.-4. The court, until contrary proved, shall draw a mandatory presumption of dishonour, the section says, if the slip contains an official mark or endorsement on it to this effect. Mr. Bhattacharya did not
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bother to rebut the presumption of Exbt.-4. He neither challenged the endorsement on Exbt.-4; nor claimed that the Exbt.-2 was not dishonoured. The other corroborative evidence with regard to this fact of dishonour is Exbt.-9. It is the extract of cheque return register maintained by Mr. Bhattacharyas banker, which had been admitted in evidence as per the Bankers book Evidence Act. So far as the reason of such dishonour is concerned, both the Exbt.-4 as well as Exbt-9 suggest that the reason was insufficiency of fund in Mr. Bhattacharyas A/C. This fact of insufficiency of fund in Mr. Bhattacharyas A/C would be clear beyond all doubts, if I take a glance of Exbt -8, the extract of Mr. Bhattacharyas bank A/C. Having seen this, I have no doubt that the cheque (Exbt.-2) was dishonoured for insufficiency of fund in Mr. Bhattacharyas A/C. In the end, I would, therefore, decide this point (b) in favour of Srikanta. **III** Point Nos.(a), (d) & (e): 11. These are the points, where the core of the contest of this case lies. The claim of Srikanta regarding issuance of the impugned cheque i.e. Exbt.-2 in discharge of debt liability has seriously been disputed by Mr. Bhattacharya. Though he took the defence that he has not issued the Exbt.-2 in discharge of any debt or liability, yet he admits that he issued the cheque, but it was not in discharge of any liability. The cheque, according to Mr. Bhattacharya, was given to Srikanta and Sumanta gratuitously, without intending any advancement for them, but for enabling them to show the PWD authority that they have the credential of 1,00,000/-, so that they could get the contract from PWD. According to him, both Srikanta and Sumanta were unemployed at that time and though they got an opportunity to work, but were suffering from a deficit credential of 83, 000/-, which they were required to show before the PWD authority. So, out of pity, he issued the Exbt.-2 to Srikanta for showing it to PWD authority only and not for encasing it. According to him, the cheque was not issued in discharge of any liability, but Srikanta dishonestly presented it for encasing the same so as to gain wrongfully and brought this action in furtherance of such dishonesty. 12. The crucial question is not whether Mr Bhattacharya issued the cheque to Srikanta. It is, rather, was the check issued in discharge of any liability or part of it? The gist of Srikantas evidence on this issue is that Mr. Bhattacharya took a loan of 1,50,000/- from him and his cousin Sumanta on June 22, 2006. Both he and his cousin, equally contributed for this 1,50,000/-. Later, when Mr. Bhattacharya could not repay the same within one year, he executed a written undertaking on June 29, 2007 promising to pay 1,50,000/- within July 15, 2007. But, even after this due date Mr. Bhattacharya did not pay this 1,50,000/-. When Srikanta and Sumanta started pursuing him repeatedly for this 1,50,000/-, he issued the cheque(exbt.-2) to Srikanta. So, this evidence suggests that as if the cheque was issued in discharge of pecuniary liability. But, to my mind, a question is still peeping - was it really as such? 13. The alleged undertaking dated June 29, 2007 (exbt-1), though, was admitted in evidence, but it was marked exbt. with objection. The objection was, I am sure, on two Typed & printed by me: 5th J.M., Bankura Page 4 of 10

fold ground. The 1st is the challenge of its admissibility u/s 35 of Stamp Act, 1899. The other count of challenge is certainly the denial of its execution. So far as the 1st ground of challenge is concerned, I am quite sure that it was rightly challenged. Having read the recital of the alleged document dt. June 29, 2007, I am sure that it is a promissory note in essence. Its recital suggests an unconditional promise to pay 1,50,000/- jointly to Srikanta and Sumanta on or before July 15, 2007. It also contains an alleged acknowledgement of the story of loan as made out by Srikanta. I can, therefore, not held it to be any other thing than a promissory note payable otherwise than on demand. The Stamp duty of such promissory note would have been 90/-. [see, Art 49 read with Art13 of Stamp Act]. But the stamp duty paid was only 10/-. The document is, therefore, insufficiently stamped making it inadmissible u/s 35 of Stamp Act. But, I cannot subscribe to the view that Ld. Predecessor PO was wrong in admitting it in evidence. I think she had sufficient jurisdiction to mark it exbt under proviso (d) of S.35 of Stamp Act. When the document has already been admitted in evidence, I do not think it would be proper to call such admission into question. [see, S.36 of Stamp Act]. But, this would not mean that the document shall be blindly relied on without inquiring about its validity or without ascertaining if it was really executed by Mr. Bhattacharya or not. So far as the question of reliance on such document is concerned, the S. 35 Stamp Act would still continue with its operation yet after the document admitted in evidence. Let me say at once that S.35 Stamp Act has two parts. One part is prohibiting its admission in evidence and the other part prohibits its reliance. This is why it contains the phrase or shall be acted upon. 14. So far as the 2nd ground of challenge is concerned, it is true that the document had been marked exbt even before the attesting witnesses stepped into the witness box. This, I think, prejudiced Mr. Bhattacharya to some extent. Though both the attesting witnesses (PW-4 &5) said in there evidence that Mr. Bhattacharya executed the document dt 2906-07 in their presence, but both of them admitted in their cross examination that they are not sure if it was caused to be executed under threat and pressure or not. They also admit that they have never seen any cash or cheque transaction between Srikanta and Mr. Bhattacharya. It is important to notice another cross examination of both these witnesses. Durga Charan (PW-5) admitted in his cross examination that Sumanta and Srikanta are his bhaipo (brothers son). Gour Ch. Dubey (PW-4) admits in his cross examination that he is the Tadbirkarak of this case. In fact, he is the appointed law clerk of Srikanta. He wrote the petition of complaint of this case also. [see, his signature upon p.4 of the petition of complaint]. This petition of complaint was filed within three months of coming into existence of the alleged promissory note or undertaking. I cannot, therefore, ignore the interest which these two witnesses have in result of this case or in success of Srikanta in this case. 15. Having perused and seen the Exbt.-1, it seems to me to be quite suspicious. It contains two pages. One is a stamp paper and the other is a dummy paper. The dummy paper is full of scratches caused due to its age. The ink of writing, i.e. the writing on
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dummy paper seems to be very old. But this is not uniform. The signature of the alleged attesting witnesses (PW-4 &5) and the ink used for their signature seems to be different as well as quite new. But, stamp paper looks like absolutely new and without any scratch on it. The writings on the stamp paper as well as the ink used for this also seems to be quite new and different from that of the dummy paper. Another thing made this suspicion stronger. An attempt was taken by Srikanta for making the stamp paper to look like old. He attempted to do this by rubbing some dusts over the writing on stamp paper. When I looked at the back side of this stamp paper, I got sure about this. The back side as well as the stamp portion is absolutely nit and clean and without having any stretch. The stamp paper allegedly contains signature of Mr. Bhattacharya. It is at the bottom of the paper. Another signature is on the right side of stamp portion. There was something more wrong in the document. I find an overwriting on the alleged date of loan also. Some other thing was written there originally, which has later been made to show as 22-06-2006 by overwriting and this over writing was made with some others hand writing than who wrote the document. This overwriting also does not contain any attestation by any initial signature. Having perused both the pages of this exbt-1, I cannot rule out the possibility that the 2nd page of the document i.e the dummy paper belongs to some other document which has been tagged with this stamp paper after trimming the same from that other document; or in other words I cannot rule out the possibility that the exbt.-1 might be a manufactured document created for the purpose of this case. But that is a mere suspicion, no doubt a very strong one, but still a suspicion which cannot take the place of proof. Nevertheless, it is equally true that nothing would be more unjust than punishing a man relying solely on this document (exbt.-1), if it really is not genuine or in other words, if it really is a tempered document. 16. It is important to notice the cross examination of Srikanta. I would have given some probative force to this promissory note dated June 29, 2007 (exbt-1), if Srikanta himself had not destroyed his story about the coming into existence of this document and if he himself had not made its genuineness highly improbable. Srikanta, on 2nd day of his cross examination, said: On 22-06-2006 the accused executed one document acknowledging of taking of loan amount. Then a little later he said: The accused executed only one document on 22-06-2006 acknowledging of taking of loan amount. Thereafter the accused did not execute any other document. So, after June 22, 2006 Mr. Bhattacharya had never executed any document in favour of either Srikanta or Sumanta. Srikanta himself said this, though he claimed about the existence of a document of acknowledgement dated 22-06-2006. But, this document has not been produced before me. At least I did not find any with the record or in exbt list. Nor, Srikanta disclosed about any such document dated 22-06-2006 in his petition of complaint. At any rate, one thing is clear from Srikantas cross examination that Mr. Bhattacharya did not execute any document touching the alleged loan after 22-06-2006.
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Then, how could Srikanta claim that Mr. Bhattacharya executed the promissory note (Exbt-1) on June 29, 2007? To my mind, the doubt regarding exbt.-1, which had been peeping in my mind was not a mere suspicion. I had been referred to s. 91 & 92 of Evidence Act. Let me say at once that the parties are not prohibited to show that a written document or terms of it to be fraudulent or fake or forged or a result of deceit or mistake. S. 92 does not prohibit them from proving such things, rather the proviso of S. 92 Evidence Act permits them to prove such things. The standard of proof necessary for an accused in a criminal case for showing or proving such fraudulence or forgery or invalidity is only preponderance of probability. If he succeeds to raise a doubt or probability to the effect that it may not be genuine, it would be sufficient for having a decision in his favour on this issue. There could be no exception to this rule. To my mind, it would not be safe to place any reliance on exbt.-1 for the purpose of criminalising Mr. Bhattacharya. In fact, I do find a very high probability that the exbt-1 might not be a genuine document. 17. I have been referred to S.139 NI Act. It ran thus way: Section 139. Presumption in favour of holder:- it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or to her liability. By referring this Mr. Paritosh Das, the Ld. Counsel for Srikanta, tried to advance an argument that even if exbt.-1 is held to be a forged one, still the accused deserves conviction and the court is bound to draw presumption that the cheque was issued in discharge of loan liability. Let me say at once that this section, no doubt, draws a presumption about the existence of debt as soon as the cheque is produced by the holder of it, and after the Judgement of Rangappa v. Sri Mohan (CRIMINAL APPEAL NO. 1020 OF 2010) [ref: http://judis.nic.in/supremecourt/imgs1.aspx?filename=36322] the courts in India are bound to draw such presumption. In this case Supreme Court had disapproved its earlier view, which it had previously taken in Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54, that the complainant is bound to prove existence of legally enforceable debt,. But, I do not think that this would in any way mean that the accused is not at liberty to refute this presumption of S.139 NI Act or that the presumption of S.139 NI Act would take the place of conclusive proof without affording any opportunity of being heard to the accused. 18. Then what is the true effect of this presumption u/s 139 NI Act? It is, I think, best expressed in the section itself. The section itself speaks about its effect, I think, in a better way than any other authority. It qualifies the words shall presume with the expression unless the contrary is proved. Thus, the court shall draw a mandatory presumption of debt until the presumption is disproved or refuted in accordance with the rule of preponderance of probability. As soon as this presumption is rebutted, the onus would again be shifted on the complainant and he has to establish beyond reasonable doubt that the accused is under the liability of a legally enforceable debt or other
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liability and the cheque was issued in discharge of it. That has been shown by Supreme Court in Krishna Janardhan Bhats case [(2008) 4 SCC 54] with approval in Rangappa v. Sri Mohan (supra). 19. The law on this point is, therefore, clear. No one would dream to throw any doubt on it. This shifted onus for the prosecution, which I said above, would not be discharged according to the same standard of proof like the standard required for refuting the presumption u/s 139 NI Act. Or, in other words, it would not be the preponderance of probability; but it would be the standard of proof beyond reasonable doubt. This is because of Art.21 Constitution. This observance of the proof beyond reasonable doubt standard as a pre-condition of criminalisation is so deeply rooted in criminal jurisprudence of all the civilised countries all around the world, that the judiciary had yet not required to expressly declare it to be a part of due process of law or just process of law. [see, Re Winship 397 US 358 (1970), US Supreme Court]. 20. Now returning back to this case, Mr. Bhattacharya had rebutted this presumption of S.139 NI Act quite well. He has not only been able to refute, as I already found, the persuasive or probative force of Exbt-1, but has also been successful in rebutting the presumption u/s 139 NI Act. I would, of course, show how he rebutted this presumption. Let me say at once that for rebutting this presumption or disproving it, the accused is not always required to step into witness box or to rebut or disprove it by tendering evidence. He may do this very well through cross examination or from the documents available in the record or may even from the evidence tendered by the complainant. All that is necessary is to establish a high probability about the non-existence of any debt or other liability which the complainant claims to be existing. 21. It is important to notice the cross examination of Srikanta on this score. At the very beginning of his 2nd days cross examination dated March 23, 2010 he said this: Presently I am working at certain public firm since one month. Prior to that I was engaged with my study. Then he continued: Sumanta is my khurtuto brother [cousin] and he is presently studying. So, Sumanta was still a student even on the 4th year of this case and Srikanta was a student till one month next before the date he was cross examined. This suggests that they both were students till January, 2010. Then, how could they manage such a huge amount of 1,50,000/- right in June, 2006 and that even for giving a loan to some other? There are quite a good number of students who does part time jobs. So, one might say that this evidence is not sufficient for concluding that Srikanta and Sumanta did not have the capacity to give a loan of 1,50,000/- and it would, therefore, not be enough to rebut the presumption of debt. Had Srikanta himself not acknowledged about his financial incapacity to give such a huge loan on June 22, 2006, I would, probably, have accepted that argument. But he acknowledged it. He admitted about this incapacity in his answer
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to the very 4th question of his cross examination dated 23-03-10. He said: On 22-062006 both myself and Sumanta were unemployed. 22. Then a little later he said: We somehow collected the money from here and there. I cannot recollect as to how we collected the huge amount of 1,50,000/- from here and there. Then, he was asked about the source of this money. He answered: I cannot also say whether such amount was gifted to us by anybody or whether we took loan of the aforesaid amount from anybody. I cannot say the source of the aforesaid amount. Then, after a little while he said: The accused sought for loan to us few days before 2206-2006. 23. Having read all these evidences, I cannot believe Srikanta. I cannot accept, even with much pain, that any student could manage 1,50,000/- within a few days from hither and thither. If he really did arrange such a huge amount and gave the same in loan to Mr. Bhattacharya, then, why he is avoiding to disclose its source? How could a man forget if such a huge amount has been gifted to him or if he had taken any loan of such a huge amount? To my mind, these are nothing but white lies. If I were to punish a man believing these utopian stories of Srikanta, nothing would have been more unjust than such punishment. But, I cannot do this injustice. Another interesting statement of Srikanta to which I particularly desire to refer, as a supplement to my above findings, is this: The accused took loan from Sumanta [of] a sum of 75,000/- and he also took loan from myself of a sum of 75,000/- under the same transaction. There is no whisper either in petition of complaint or in evidence about any interest on this alleged loan. The case of Srikanta from the very beginning is that the principal was outstanding and Mr. Bhattacharya was under liability to pay this [75,000/- + 75,000/-] = 1,50,000/- only and he issued the cheque in part discharge of his liability to pay this 1,50,000/-. If, for the sake of argument, I assume for a moment that Srikantas story is true, there still remains few unanswered questions- why would Mr. Bhattacharya issue a cheque of 83,000/- to Srikanta, though he owes only 75,000/- to him? Why did he not issue a separate cheque for the excess 8,000/- in favour of Sumanta? Or, why did he not issue two cheques of equal amount in favour of both Srikanta and Sumanta instead of issuing a single cheque in favour of Srikanta only and of an excess amount than what he owes to him? Why Sumanta had been kept away from this case all along? Why Sumanta had not been produced as a witness even to prove that Srikanta had been acting under an implied agency on behalf of Sumanta also? To my mind, all these questions, if answered would suggest only one thing that the story made out by Srikanta is highly improbable in light of the evidences already on record. 24. Having considered all that I said above, I would, as a final decision, hold that Mr. Bhattacharya had successfully rebutted the presumption of S.139 NI Act and has successfully refuted Srikantas claim that the cheque (exbt-2) was issued in discharge of
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debt liability. In the end, I would hold that the Prosecution that is to say Srikanta failed to prove Mr. Bhattacharya guilty of crime u/s 138 NI Act beyond reasonable doubts. I would, accordingly dismiss this case and would acquit Mr. Bhattacharya. 25. Hence, I do hereby ORDER
that, Madhusudan Bhattacharya, the accused, was not proved guilty of committing crime u/s 138 of N.I. Act. I do hereby acquit him from the accusation u/s 138 of N.I. Act as well as from this action. He is released from his bail bond and is set forthwith at liberty. Let his surety be discharged. Let the documents admitted in evidence be returned to the person entitled thereto after expiry of the appeal period as per Cr.R.O. The case is thus disposed of on contest. Note in concern registers.

(Sk. Md. Arif Hasan) Judicial Magistrate of 1st Class, 5th Court, Bankura.

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5th J.M., Bankura

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