APPENDIX – 12
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS
Present: Adrita Goswami, JMFC, Sonitpur
(Date of Judgment)
29.09.2023
(N.I. Case No. 43 of 2019)
(under Section 138, Negotiable Instruments Act, 1881)
COMPLAINANT: Sri Sourajit Datta Roy
RESPRESENTED BY: Sri Ananta Goswami, Learned Counsel
Sri Abhijit Kar, Learned Counsel
ACCUSED: Smt. Mainu Saikia
W/o Sri Biren Saikia
R/o Da Parbatiya
P.S. Tezpur
District: Sonitpur
REPRESENTED BY: Sri Rose Bharali, Learned Counsel
Smt. Popy Borah, Learned Counsel
N.I. Case No. 43/2019
APPENDIX – 13
Date of Offence 30.05.2019, 26.06.2019
Date of Complaint 28.06.2019
Date of Charge sheet NA
Date of Offence Explanation 23.03.2022
Date of commencement of evidence 09.07.2019
Date on which judgment is reserved 15.09.2023, 27.09.2023
Date of judgment 29.09.2023
Date of the Sentencing Order, if any 29.09.2023
ACCUSED DETAILS
Rank of Name of Date of Date of Offences Whether Sentence Period of
the Accused Arrest Release charged Acquitted Imposed Detention
Accused on Bail with or undergone
Convicted during
Trial for
purpose of
Section
438
Cr.P.C.
A-1 Smt. 14.12.2 14.12.2 Section Convicted Imprison None
Mainu 021 021 138, NI ment for
Saikia Act 3 months
and
compens
ation
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N.I. Case No. 43/2019
APPENDIX – 14
LIST OF PROSECUTION / DEFENCE / COURT WITNESSES
A. Prosecution:
RANK Name NATURE OF EVIDENCE
(EYE WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS, OTHER
WITNESS)
P.W. 1 Sri Sourajit Datta Roy Complainant
B. Defence Witness, if any:
RANK Name NATURE OF EVIDENCE
(EYE WITNESS, POLICE WITNESS,
EXPERT WITNESS, MEDICAL
WITNESS, PANCH WITNESS, OTHER
WITNESS)
D.W. 1 Smt. Mainu Saikia Accused Person
D.W. 2 Sri Biren Saikia Other Witness
C. Court Witnesses, if any:
Nil
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N.I. Case No. 43/2019
LIST OF PROSECUTION / DEFENCE / COURT EXHIBITS
A. Prosecution:
Sr. No Exhibit Number Description
1 Exhibit 1/P.W. 1 Cheque No. 012162
2 Exhibit 2/P.W. 1 Cheque return memo of return dated
18.04.2019
3 Exhibit 3/P.W. 1 Cheque return memo dated 30.05.2019
4 Exhibit 4/P.W. 1 Demand notice dated 04.06.2019
5 Exhibit 5/P.W. 1 Postal receipt dated 04.06.2019
6 Exhibit 6/P.W. 1 Postal delivery report dated
10.06.2019
B. Defence:
Nil
C. Court Exhibits:
Nil
D. Material Objects:
Nil
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N.I. Case No. 43/2019
JUDGMENT
1. The accused person, Smt. Mainu Saikia, stands trial for the charge
of commission of offence under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as the Act).
2. The complainant, Sri Sourajit Datta Roy, lodged the instant
complaint stating that the complainant is in the management of the
BK Memorial Hospital, Tezpur and the husband of the accused
person was a former employee of the said hospital.
3. The complainant stated that the accused person and her husband
approached the complainant, during the course of his employment,
seeking a loan for the medical expenses of their son with an
assurance to return the loaned amount at the earliest. The
complainant stated that when the husband of the accused person
left his job at the BK Memorial Hospital, he asked the accused
person to liquidate the borrowed amount which was unpaid to the
extent of Rs. 53,000/- (Rupees Fifty-three Thousand). Accordingly,
in furtherance of the same, the accused person issued a cheque
bearing number 012162 dated 17.04.2019 for Rs. 53,000/- drawn
on IDBI Bank to the complainant against the loan amount remaining
to be paid.
4. The said cheque was deposited at the bank of the complainant for
clearance on 18.04.2019. However, the aforesaid cheque was
returned unpaid vide a signed and stamped return memo on the
same day due to ‘funds insufficient’. Subsequently, the complainant
informed the accused person that the cheque was returned unpaid
and as requested by the accused person, he again deposited the
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N.I. Case No. 43/2019
cheque on 28.05.2019. The said cheque was again returned unpaid
vide a signed and stamped return memo on 30.05.2019 due to
‘funds insufficient’.
5. Thereafter, the complainant sent a demand notice dated 04.06.2019
under Section 138 of the Act which was received by the accused
person on 10.06.2019. However, she did not repay the amount even
after the period of fifteen days had elapsed and hence the instant
case.
6. The then Learned Trial Magistrate took cognizance of the offence
after going through the statement of the complainant and summons
were accordingly issued to the accused person. The accused person
was produced on arrest after execution of non-bailable warrant of
arrest which had been issued against her and was allowed to go on
bail.
7. After considering the relevant materials on record, the particulars of
the offence under Section 138 of the Act were explained to the
accused person to which she pleaded not guilty and claimed to be
tried.
8. The complainant side examined 1 witness and exhibited 6
documents. The statement of defence was recorded and thereafter
the defence side examined 2 witnesses.
9. Argument was heard from both sides. The complainant side has
relied on the judgment of the Hon’ble Supreme Court in Sripati Singh
(since deceased) through his Son Gaurav Singh v. The State of
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N.I. Case No. 43/2019
Jharkhand and Another1, and submitted that the issuance of a
‘security’ cheque does not ipso facto absolve the accused person of
the offence contemplated under Section 138 of the Act. Learned
Counsel for the complainant further submitted that the case has
clearly been made out against the accused person.
10. On the other hand, the defence admitted to the issuance of
the cheque in question and that there were insufficient funds in the
bank account of the accused person. It has been contended by the
defence that the accused person did not have any legally
enforceable debt and that the cheque in question was issued as a
‘security’ cheque. Learned Counsel for the defence also submitted
that Exhibit 6 was not duly proved by the complainant side as no
one was examined with respect to it and further that the certificate
under Section 65B of the Indian Evidence Act was not given.
POINTS FOR DETERMINATION
11. Upon hearing the learned Counsel for both sides and on
perusal of the record, I have formulated the following points for
determination –
i. Whether the accused person issued a cheque bearing number
012162 dated 17.04.2019 drawn at IDBI Bank for Rs. 53,000/-
in favour of the complainant for the discharge of her legally
enforceable debt or liability?
ii. Whether the cheque so issued was dishonoured due to
‘insufficient funds’?
1
(2021) 10 SCR 116
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N.I. Case No. 43/2019
iii. Whether the accused person received the demand notice
dated 04.06.2019 issued by the complainant regarding the
dishonour of the aforesaid cheque?
iv. Whether the accused person failed to repay the cheque
amount to the complainant within the stipulated period?
v. Whether the accused person committed the offence under
Section 138 of the Act?
DECISION, DISCUSSION AND REASONS THEREOF
Point i. Whether the accused person issued a cheque
bearing number 012162 dated 17.04.2019 drawn at IDBI
Bank for Rs. 53,000/- in favour of the complainant for the
discharge of her legally enforceable debt or liability?
12. The complainant, Sri Sourajit Datta Roy, as PW-1, has, in his
evidence-on-affidavit reiterated the allegations made in the
complaint petition. He deposed that both the accused person and
her husband, who was in the employment of BK Memorial Hospital,
had approached the complainant for a loan for the medical expenses
of their son and assured to return the amount to the complainant.
PW-1 deposed that when the husband of the accused person
resigned from his job, the accused person issued a cheque bearing
No. 012162 from her account No. 1464104000037864 drawn at IDBI
Bank for an amount of Rs. 53,000/- on 17.04.2019 in favour of the
complainant in pursuance of her liability apropos the borrowed
amount. The complainant produced the dishonoured cheque
bearing No. 012162 dated 17.04.2019 drawn at IDBI Bank, Da-
Parbatiya for Rs. 53,000/- as Exhibit 1.
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N.I. Case No. 43/2019
13. In his cross-examination, PW-1 deposed that he had given the
money to the husband of the accused person in the month of April,
2019 at the hospital in the presence of the then manager, Late
Suranjit Das.
14. PW-1 denied the suggestion that he had kept Exhibit 1 as a
blank cheque as a ‘security’ when the husband of the accused
person, Sri Biren Saikia, started working at the hospital of the
complainant. He further denied the suggestion that he had deducted
the sum of Rs. 53,000/- from the provident fund dues of the
husband of the accused person after he left his job at the hospital.
PW-1 denied the suggestion that the accused person has no liability
towards him as she had not borrowed any money from him and he
deposed that the accused person had issued the cheque to him. PW-
1 deposed that the husband of the accused person was working at
his hospital since 2013.
15. The accused person entered into the witness box and deposed
in her defence as DW-1. DW-1, Smt. Mainu Saikia, deposed that her
husband got his salary after she gave the cheque to her husband in
order to hand it over to the owner of BK Memorial Hospital. DW-2,
Sri Biren Saikia, also deposed that the complainant had asked for a
cheque in order to deposit his first salary when he started working
at BK Memorial Hospital. He deposed that he had given the cheque
with respect to the bank account of the accused person as he
himself did not have a bank account.
16. In his cross-examination, DW-2 deposed that he started
working at BK Memorial Hospital in the year 2010 and left in the
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N.I. Case No. 43/2019
year 2018. Subsequently, DW-2 again deposed that the cheque was
given to the manager of the Hospital in the year 2018 when he left
his job there. While cross-examining PW-1, the defence had drawn
the attention of PW-1 to the date printed on the left edge of Exhibit
1. PW-1 deposed that the date mentioned is 21.10.2016. Further, in
his cross-examination, DW-2 deposed that his salary was not paid
into the bank account and rather he used to receive it by signing on
a register. In her statement of defence, the accused person stated
that she had given a signed cheque to her husband to deposit it as
a security when he joined the Hospital as the same was required for
his salary.
17. The defence side has not disputed that the accused person
had indeed issued the dishonoured cheque in question. From the
statement of the accused person recorded under Section 313 of the
Cr.P.C., it is clear that the accused person had issued the cheque in
question to the complainant. The accused person has claimed that
she had issued a signed blank cheque to the complainant in order
to enable her husband to receive his salary. She, however, denied
the contention of the complainant that she had issued the cheque
for Rs. 53,000/-.
18. It is clear from the testimony of the complainant as well as of
the accused person and her witness that the accused person had
indeed issued the cheque in question. Now, the accused person has
raised the contention that she had in fact issued a blank cheque as
a security to the complainant. The complainant has relied on the
judgment of the Hon’ble Supreme Court in Sripati Singh (since
deceased) through his Son Gaurav Singh v. The State of Jharkhand
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N.I. Case No. 43/2019
and Another2. The primary question before the Hon’ble Supreme
Court in this case was whether an offence under Section 138 of the
Act is not made out if the alleged dishonour of the cheque which
was issued by way of ‘security’ and not towards the discharge of
any debt. It was held that,
“’Security’ in its true sense is the state of being safe and the
security given for a loan is something given as a pledge of
payment. It is given, deposited or pledged to make certain the
fulfilment of an obligation to which the parties to the transaction
are bound. If in a transaction, a loan is advanced and the
borrower agrees to repay the amount in a specified timeframe
and issues a cheque as security to secure such repayment; if the
loan amount is not repaid in any other form before the due date
or if there is no other understanding or agreement between the
parties to defer the payment of amount, the cheque which is
issued as security would mature for presentation and the drawee
of the cheque would be entitled to present the same. […] the
prior discharge of the loan or there being an altered situation
due to which there would be an understanding between the
parties is a sine qua non to not present the cheque which was
issued as security. These are only the defences that would be
available to the drawer of the cheque in a proceeding initiated
under Section 138 of the N.I. Act.”
19. In the instant case, there does not appear to be any
understanding between the parties as to the exact date within which
the loan amount was to be repaid although the accused person had
assured that the amount would be repaid at the earliest. However,
the cheque in question was issued on 17.04.2019 in pursuance of
repaying the loan amount. Moreover, although the accused person
has raised the defence that the cheque in question was given as a
security in order to enable the husband of the accused person to
2
(2021) 10 SCR 116
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N.I. Case No. 43/2019
receive his salary, DW-2 has himself stated that the salary was not
deposited in the bank account. DW-2 also deposed that he did not
know if other employees were also asked to hand over blank
cheques for their salaries. The defence did not examine any other
employee of the Hospital to support their claim that a blank cheque
was required to be handed over to the management of the Hospital
for payment of salary.
20. In I.C.D.S. Ltd. v. Beena Shabeer & Anr.3, the Hon’ble
Supreme Court had observed that,
“The commencement of the Section stands with the words
“Where any cheque”. The abovenoted three words are of
extreme significance, in particular, by reason of the user of the
word “any” – the first three words suggest that in fact for
whatever reason if a cheque is drawn on an account maintained
by him with a banker in favour of another person for the
discharge of any debt or other liability, the highlighted words if
read with the first three words at the commencement of Section
138, leave no manner of doubt that for whatever reason it may
be, the liability under this provision cannot be avoided in the
event the same stands returned by the banker unpaid. The
legislature has been careful enough to record not only discharge
in whole or in part of any debt but the same includes other
liability as well.”
21. Thus, in light of the aforesaid observation, it appears that
even if the cheque in question had been issued by the accused
person to the complainant as a security cheque, it will still fall within
the scope of Section 138 of the Act if the same was issued in the
discharge of a legally enforceable debt or liability.
3
AIR 2002 SC 3014
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N.I. Case No. 43/2019
22. Further, the accused person has insisted that the cheque in
question was issued as a blank cheque. Section 20 of the Act does
not disregard a situation where the maker of the cheque issues a
blank cheque signed by him to the payee and either impliedly or
expressly consents to the said cheque being filled up subsequently
and presented for payment by the payee. In doing so, if the payee
of the cheque in question, which has already been signed by the
drawer, fills in the name or the amount or the date on the cheque,
it would not constitute a material alteration of the cheque so as to
render it void under Section 87 of the Act.
23. Herein it is pertinent to refer to Section 139 of the Act which
raises a presumption in favour of the holder of the cheque that he
received the same for the discharge of any debt or liability. It raises
the presumption of the existence of a legally enforceable debt or
liability. Accordingly, there is a presumption that the cheque in
question was issued by the accused person towards discharging her
liability of Rs. 53,000/-.
24. Further, this presumption under Section 139 of the Act is a
rebuttable one. The accused has to rebut the presumption under
Section 139 of the Act by proving that the cheque in question was
not issued in the discharge of a legally enforceable debt or liability.
It is settled law that the standard of proof required to rebut the said
presumption is that of preponderance of probabilities. This means
that the accused person has to raise a probable defence that she
had not, in fact, issued the cheque in question for discharge of any
legally enforceable debt or liability. The accused person may do so
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N.I. Case No. 43/2019
by adducing evidence and even by simply relying on the materials
relied on by the complainant side.
25. In the instant case at hand, the accused person could not
shake the testimony of the prosecution witness. Mere suggestions
would not suffice to discharge the reverse burden imposed on the
accused person by the Act. Further, she has also not been able to
prove her side of the story by adducing any evidence to prove that
she had not issued the cheque in question in furtherance of the
discharge of her legally enforceable debt or liability of Rs. 53,000/-
towards the complainant.
26. Considering the observations made above, in light of the
evidence on record as well as the law laid down, it appears that the
accused person had a legally enforceable debt or liability of Rs.
53,000/- towards the complainant and to that effect she had issued
the cheque bearing number 012162 dated 17.04.2019 drawn on
IDBI Bank, Da-Parbatiya for an amount of Rs. 53,000/-.
Accordingly, this point is decided in the affirmative in favour of the
complainant.
Point ii. Whether the cheque so issued was dishonoured due
to ‘insufficient funds’?
27. PW-1 deposed that the cheque in question was returned due
to “funds insufficient” on 18.04.2019 and again on 30.05.2019. PW-
1 also produced the return memo issued by ICICI Bank, Tezpur
Branch to him regarding the return of Exhibit 1 on 18.04.2019 and
28.05.2019.
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N.I. Case No. 43/2019
28. In her statement of defence, the accused person stated that
she does not know about the dishonour of the cheque in question
on either date. In his cross-examination, DW-2 admitted that at the
time of handing over the cheque to the complainant, there was no
balance in the bank account of his wife, the accused person.
29. On perusal of Exhibit 2 and Exhibit 3, it appears that the ICICI
Bank had notified the complainant about the return of the cheque
due to insufficient funds.
30. Section 146 of the Act provides that the Court is bound to
presume the fact of dishonour of a cheque where the Bank’s slip or
memo having the official mark that the cheque was dishonoured has
been produced. However, this presumption is rebuttable. In the
instant case, the defence has not raised any rebuttable evidence in
order to dislodge the case of the prosecution. Rather, the defence
admitted that the bank account of the accused person did not have
any money at the time when the cheque was handed over to the
complainant.
31. It is apparent from the evidence of both sides coupled with
the return memos with respect to return of the cheque on
18.04.2019 and 28.05.2019 which were exhibited by PW-1 as
Exhibit 2 and Exhibit 3 that there was insufficient funds in the
account maintained by the accused person.
As such, this point is answered in the affirmative in favour of the
complainant.
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N.I. Case No. 43/2019
Point iii. Whether the accused person received the demand
notice dated 04.06.2019 issued by the complainant
regarding the dishonour of the aforesaid cheque?
32. PW-1 deposed that after the dishonour of the cheque for a
second time on 28.05.2019, a demand notice was sent to the
accused person through the advocate of the complainant informing
her about the dishonour of the said cheque and requesting her to
clear the cheque amount within the stipulated time. PW-1 produced
a copy of the demand notice as Exhibit 4. He also produced the
postal receipt of the said demand notice as Exhibit 5. Perusal of the
receipt reveals that it was duly prepaid and addressed to the
accused person and it was sent on 04.06.2019 which is within the
prescribed period. PW-1 also produced the postal delivery report as
Exhibit 6. On perusal of the same, it appears that the notice was
delivered on 10.06.2019. As such, it appears that the complainant
has managed to discharge his burden to show that the demand
notice was duly sent to and received by the accused person.
33. In her statement of defence, the accused person stated that
she did not receive any demand notice. In her deposition as DW-1
also, she denied receiving the demand notice. DW-2 also denied
receiving the demand notice.
34. The defence did not bring anything on record to cement their
claim that they had, in fact, not received the notice. They also did
not examine any official or exhibit any document to prove their claim
that the demand notice was not delivered to the accused person.
The defence neither cross-examined the prosecution witness to this
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N.I. Case No. 43/2019
effect nor relied on the materials brought by the prosecution. Even
while cross-examining the prosecution witness, PW-1 was asked
about the dates on which the notice was sent and thereafter
received by the accused person. However, the defence did not ask
anything with respect to Exhibit 5 or Exhibit 6.
35. The defence side submitted that Exhibit 6 was not duly
proved by the complainant side as no one was examined with
respect to it and further that the certificate under Section 65B of the
Indian Evidence Act was not given. PW-1 deposed that he had sent
the demand notice through post. The defence side has also not
disputed this claim. Now, Section 27 of the General Clauses Act
states that,
“where any Central Act or Regulation made after the
commencement of this Act authorizes or requires any document
to be served by post, whether the expression "serve" or either
of the expressions "give" or send or any other expression is used,
then, unless a different intention appears, the service shall be
deemed to be effected by properly addressing, pre-paying and
posting by registered post, a letter containing the document,
and, unless the contrary is proved, to have been effected at the
time at which the letter would be delivered in the ordinary course
of post.”
36. The defence side has not, however, suggested that the notice
was either not properly addressed or pre-paid and has also not
disputed that the same was sent by registered post. Moreover, such
contention must not only be raised but the same has to be proved.
In the instant case, the same was not done.
37. The defence further raised the claim that Section 65B of the
Indian Evidence Act was not complied with respect to Exhibit 6.
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N.I. Case No. 43/2019
However, nothing has been brought on record to suggest that the
postal delivery report is a purely electronically generated record
devoid of manual inputs. As such, there appears to be no
requirement for furnishing certificate under Section 65B of the
Indian Evidence Act with respect to Exhibit 6.
38. Thus, from the preceding discussion, it is apparent that the
defence has not been able to rebut the claim of the prosecution that
the demand notice was delivered to the accused person.
Hence, this point is decided in the affirmative in favour of the
complainant.
Point iv. Whether the accused person failed to repay the
cheque amount to the complainant within the stipulated
period?
39. PW-1 reiterated in his evidence-on-affidavit that demand
notice was sent to the accused person – after receipt of the return
memo dated 30.05.2019 – which was duly received by the accused
person. PW-1 has further stated that although the notice was
received by the accused person, she failed to make the payment of
the sum within the stipulated time period.
40. Moreover, the defence has nowhere asserted that the accused
person repaid the cheque amount within the stipulated period of
time. DW-1 and DW-2, in their respective depositions, maintained
that the accused person has no liability towards the complainant. In
her statement recorded under Section 313, Cr.P.C. also, the accused
person stated that she had no liability towards the complainant.
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N.I. Case No. 43/2019
41. As such, there is nothing on record to show that, after receipt
of the demand notice, the accused person had made any payment
to the complainant at all.
In light of the aforementioned observations, this point is also
decided in the affirmative in favour of the complainant.
Point v. Whether the accused person committed the offence
under Section 138 of the Act?
42. A recapitulation of the instant case reveals that the accused
person had issued Exhibit 1 in favour of the complainant for the
discharge of her legally enforceable debt or liability to the tune of
Rs. 53,000/-. The complainant had presented Exhibit 1 for
encashment on 18.04.2019 and 28.05.2019 and the same was
returned unpaid due to “insufficient funds”. Thereafter, the
complainant had sent a demand notice to the accused person
requesting her to clear the cheque amount which was duly received
by her. However, despite receiving the demand notice, the accused
person failed to clear the cheque amount within the stipulated
period.
43. In view of the above, it is evident that all the ingredients of
the offence contemplated under Section 138 of the Act are satisfied
in the instant case.
Therefore, this point is decided in the affirmative in favour of the
complainant.
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N.I. Case No. 43/2019
ORDER
44. In the facts of the present case, the prosecution has been
successful in bringing home the case against the accused person.
Situated thus, the accused person is found guilty of the offence
under Section 138 of the Act and is thereby convicted for the same.
45. I have considered the applicability of the benefit of the
Probation of Offenders Act to the convict. Considering the socio-
economic nature of the offence which has a bearing on the fiduciary
relationships, I am of the opinion that the benefit of the Probation
of Offenders Act may not be extended to the convict in the present
case.
46. I have heard the convict on the question of sentence. I have
also taken into account that five years have passed since the
issuance of the dishonoured cheque to the complainant. I have also
considered that the convict is a woman who has to look after her
family.
47. Considering all the facts and circumstances of the instant
case, the convict, Smt. Mainu Saikia is sentenced to undergo simple
imprisonment for a period of 3 months and to pay an amount of Rs.
53,000/- as compensation to the complainant. The compensation
shall be recoverable as fine and in case of default in the payment of
the same, the convict shall undergo simple imprisonment for
another period of 3 months.
48. Let a copy of the judgment be given free of cost to the convict
immediately as per Section 363, Cr.P.C.
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N.I. Case No. 43/2019
49. The convict is informed of her right of appeal against the
judgment and order of conviction and sentence.
Given under my hand and seal of this Court and delivered in
the open Court on this the 29th day of June, 2023 at Tezpur,
Sonitpur.
Typed by me:
Adrita Goswami
Judicial Magistrate First Class, Tezpur, Sonitpur
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