HIGH COURT OF TRIPURA AGARTALA CRL.A.No.08 of 2024 Sri Ajit Datta, son of Late Gopal Chandra Datta, resident of Village-Ramkrishna Pally, P.O. & P.S. Bishramganj, District-Sepahijala, Tripura ---- Appellant-Petitioner (s) Versus 1) Sri Mithan Das, son of Haribandhu Das, resident of Joynagar, (Opposite of Ramthakur Ashram) P.O. & P.S. Teliamura, District-Khowai, Tripura 2) The State of Tripura, represented by the Secretary, Home Department, Government of Tripura, Agartala ----Respondent(s) [--- _____________________________________________________ For Appellant (s) : Mr. Kishore Kr. Pal, Adv. Ms. Punam Murasing Adv. For Respondent(s) : Mr. Sankar Lodh, Adv. Mr. Raju Datta, P.P. Mr. Subham Majumder, Adv. Date of Hearing : 07.02.2025 Date of Judgment & Order : 17.02.2025 Whether fit for reporting : YES _________________________________________________________ HON’BLE MR. JUSTICE BISWAJIT PALIT Judgment & Order This appeal is preferred challenging the judgment and order of acquittal dated 22.12.2023 delivered by Learned Sub-Divisional Judicial Magistrate, Bishalgarh, Sepahijala, Tripura in connection with Case No.N.I.15 of 2022 under Section 138 of N.I. Act. [2] Heard Mr. Kishore Kr. Pal, Learned counsel appearing on behalf of the petitioner-complainant/appellant as well as Mr. Sankar Lodh, Learned counsel appearing on behalf of the respondent-accused and Mr. Raju Datta, Learned P.P. appearing on behalf of the State of Tripura. (2) [3] Before admission of the appeal, the petitioner-appellant sought leave of the Court to file an appeal under Section 378(4) of Cr.P.C. and accordingly the leave was granted. [4] Taking part in the hearing, Learned counsel for the appellant, Mr. Kishore Kr. Pal first of all drawn the attention of the Court that before the Learned Trial Court, the complainant proved the demand notice which was marked as Exhibit. But the complainant although submitted the photo copies of relevant documents before the Court but could not produce and prove the original postal receipt for marking of exhibit for which the Learned Trial Court came to the observation that the requirement of Section 138 of N.I. Act was not proved. Learned counsel further submitted that before the Learned Trial Court the complainant appellant adduced evidence how he acquired the money but the Learned Court did not believe his story and rejected the contention of the appellant and more so, in a case under Section 138 of N.I. Act it is not the duty of the complainant to establish as to how he has secured the money and from what source but the Learned Court below failed to appreciate the evidence on record of the complainant and came to the observation that the demand notice was not proved and finally, acquitted the respondent-accused from the charge of the case. Learned counsel also drawn the attention of the Court the prayer submitted by the petitioner appellant for permitting the appellant to adduce additional evidence to substantiate the claim of the petitioner appellant by annexing the report of the postal authority wherein it was specifically stated that the demand notice was duly served upon the respondent accused. [5] Learned counsel for the appellant further submitted that the respondent accused before the Learned Trial Court did not dispute the fact that he did not receive any money from the complainant appellant and also did not dispute the fact that he did not receive any demand notice from the appellant and further more as alleged by the respondent accused that some cheques belonging to the respondent accused are/were found missing and accordingly, (3) he lodged complaint to the police and also gave intimation to the bank and in this regard, no such documentary evidences were adduced and proved by the respondent accused before the Trial Court to believe his defence theory. But the Learned Trial Court below did not consider the same and gave the judgment thereby acquitting the respondent accused from the charge of the case. [6] On the other hand, Mr. Sankar Lodh, Learned counsel appearing on behalf of the respondent accused first of all submitted that in the record of the Learned Court there is no such document like postal receipt was ever submitted by the complainant appellant before the Learned Court and also there was no such prayer from the side of the appellant that he was willing to prove the postal receipt but failed to do so and no such leave was also taken by him. Learned counsel further submitted that from the evidence on record it is clear that the appellant deals in rubber but in support of his contention, he could not submit any income tax statement showing his income to substantiate that he had got sufficient means to lend the money as alleged by the appellant in the claim petition but in this regard, no evidence was led by the appellant. Furthermore, Learned Trial Court below after elaborate discussions of the evidence on record both oral/documentary rightly and reasonably delivered the judgment acquitting the respondent accused from the charge of the N.I. Act and there was no infirmity in the judgment delivered by the Learned Trial Court. In regard to the separate application for adducing additional evidence, Learned counsel submitted that at this stage, there is no scope to entertain the application filed by the appellant, so, the same is liable to be dismissed. [7] Both the sides in course of hearing relied upon some citations which would be discussed in due course of time. The appellant complainant filed one complaint petition which was registered as N.I.15 of 2022 to the Learned Court below alleging inter alia that on 30.03.2019 the respondent accused took loan of Rs.20,00,000/- from the appellant complainant and promised to return the same within 30 days. On 22.08.2022, the respondent (4) accused issued a cheque bearing No.335061 dated 22.08.2022 in respect of his account bearing No.0584010343565 maintained in the Punjab National Bank of India, Chakmagdhat SDM Office (Khowai) for payment to the complainant to discharge his liability, and the same was returned back by the State Bank of India, Bishramganj Branch unpaid on account of insufficient funds. This is the gist of the complaint. On receipt of complaint, cognizance of offence was taken under Section 138 of N.I. Act. The respondent accused appeared before the Learned Trial Court and was enlarged on bail and thereafter, evidence were adduced by both the sides. For the sake of convenience, I would like to refer the name of witnesses of the appellant complainant and his exhibited documents along with the name of the witnesses of the respondent accused and his documents herein below: LIST OF PROSECUTION/DEFENCE/COURT WITNESSES A.Prosecution witnesses: Rank Name Name of evidence (Eye witness, medical witness, panch witness, other witness) 1. Sri Ajit Dutta Complainant 2. Sri Ujjwal Kirti Expert witness B. Defence witness, if any : Rank Name Name of evidence (Eye witness, medical witness, panch witness, other witness) 1. Sri Mithan Das Accused 2. Sri Prasenjit Singha Other witness 3. Sri Amal Ch. Das Other witness C. Court witness, if any : Rank Name Name of evidence (Eye witness, medical witness, panch witness, other witness) Nil Nil Does not arise LIST OF PROSECUTION/DEFENCE/COURT WITNESSES A. Prosecution exhibits : Sl. Nos. Exhibit No. Description 1. Exbt.1 Complaint petition 2. Exbt.1(a) Signature of PW1 on the complaint 3. Exbt.2 Original Cheque 4. Exbt.3 Original deposit slip 5. Exbt.4 Original return memo report 6. Exbt.5 Legal notice B. Defence exhibits : Sl. Exhibit No. Description (5) Nos. 1. Exbt.P 1 Examination in chief of DW1 2. Exbt.P 1(a) Signature of DW1 3. Exbt.P 2 Examination in chief of DW2 4. Exbt.P 2(a) Signature of DW2 5. Exbt.P 3 Examination in chief of DW3 6. Exbt.P 3(a) Signature of DW3 C. Court exhibits, if any : Sl. Nos. Exhibit No. Description Nil Nil Does not arise C. Material objects : Sl. Nos. Exhibit No. Description Nil Nil Does not arise Finally, after hearing of both the sides, Learned Trial Court by the judgment dated 22.12.2023 acquitted the respondent accused from the charge of N.I. Act. The operative portion of the judgment runs as follows : “Hence, accused Sri Mithan Das is acquitted of the offence alleged and is set at liberty forthwith. The surety of the bond furnished for the accused persons shall remain in force for a period of six months from today as required under section 437A of Cr.P.C.” [8] I have heard arguments of both the sides and gone through the record of the Learned Court below including the judgment. In deciding the judgment, Learned Trial Court has referred the provisions of Sections 20, 138, 118, 139, 142 of the N.I. Act and relied upon few judgments. Now, before coming to the conclusion of this appeal, let us discuss the evidence on record of the contesting parties. The appellant complainant as already stated has adduced two witnesses including himself. [9] The appellant complainant, Sri Ajit Dutta in his examination-in- chief stated that he filed the case against the respondent accused on 30.03.2019. The respondent accused took loan of Rs.20,00,000/- from him with a promise to repay the same within a month but he failed to do the same. Thereafter, on 22.08.2022 he gave a cheque bearing No.335061 issued on Punjab National Bank of India, Chakmagdhat SDM Office (Khowai) and on the same day, the complainant presented the cheque to State Bank of India, Bishramganj Branch for encashment but on 25.08.2022, the said cheque was (6) returned unpaid due to insufficiency of funds and after that, on 01.09.2022, he had send the legal notice to the respondent accused with request to repay the amount within 15 days but the respondent accused did not pay the same and hence, he filed the case. He identified the complaint petition marked as Exbt.P/1 series and his signature marked as Exbt.P1(a). He also submitted that he submitted the original cheque, deposit slip, return memo, report of the Bank Manager and legal notice and identified those documents marked as Exbts.P/2, P/3, P/4 and P/5. During cross-examination, he stated that he is a small rubber businessman and he files income tax return every year. Also admitted that in the income tax return he did not mention about his transaction of Rs.20,00,000/- with the accused. Further stated that he know the accused as he works in Charilam Forest Office. Also stated that he could not say exact date and year from which he is acquainted with the accused. Further stated that at the time of paying money of Rs.20,00,000/- he did not enter into any written agreement with Mitan Das and volunteered that he paid him money amounting to Rs.20,00,000/- and the accused issued a cheque in his favour. Being asked by the Court he stated that he lend amounting to Rs.20,00,000/- in cash and gave him a cheque after putting his signature. Also stated that he procured the money to be given to the accused from various sources viz. earning from his business, taking loan and by selling of land. Also admitted that he did not mention in his petition as to how he procured the money. [10] PW-2, Ujjwal Kirti deposed that he is the Bank Manager of SBI, BRG branch and whenever any cheque is deposited to the bank it is generally honoured however, there are many reasons to dishonor the cheque i.e. illegal signature or other details of the cheque and insufficiency of fund and whenever, the cheque is returned, dishonoured, the reason is mentioned in the return memo report. During cross-examination, nothing came out relevant. (7) [11] The respondent accused as DW-1 in his examination-in-chief in affidavit stated that he is the alleged accused of the case and he is conversant about the subject matter of the case. He further stated that he never acquainted with the complainant of the case who was a stranger to him and never seen him except the first day when the complainant came to the Court for deposition and as such he had no verbal or telephonic conversation with him. Also stated that on 20.08.2022 out of 20 numbers of cheque 5 numbers of cheque were fall down bearing No.335061 to 335065 at any place of Bishalgarh from his diary and tried to find out but failed. But from 20.08.2022 till receipt of the notice of the Court he could not understand how the 5 number cheques have gone and according to him, the complainant has misused the same. Accordingly, he gave a specific complain to Bishalgarh P/S in respect of five missing cheques which refers to Bishalgarh P/S G.D. Entry No.39 dated 07.09.2022 and denied the other allegations and identified the affidavit marked as Exbt.P 1 and his signature marked as Exbt.P 1(a). During cross-examination, he stated that he was unable to say the account number which was lost. Further admitted that he have not mentioned the account number, cheque leaves which was lost in his examination-in-chief in affidavit. Also he has not mentioned the date when he informed the matter to PNB, SDM Office Branch Chakmaghat Khowai and also admitted that in his examination-in-chief in affidavit he did not mention as to the fact of lodging any FIR in connection with lost cheques against Ajit Dutta. Further volunteered that he made complaint against the accused Ajit Dutta in Bishalgarh P.S. but the same was not mentioned in his examination-in-chief. [12] DW-2, Prasenjit Sinha deposed that he is a Forest Guard presently posted at Gandhigram (TNTR), Forest Training Centre. He further stated that the matter of missing of 5 unwritten signed cheque leaves of the forester Mithan Das came to him on 20.08.2022 afternoon, when Mithan Das informed him about missing of 5 signed but unwritten cheques which was kept inside the diary and the same was found to be lost. Later on, Mithan Das has informed (8) the matter at Bishalgarh P.S. and a G.D. Entry was made. He also stated that later on he could know that Ajit Datta filed a case against Mithan Das. During cross-examination, he admitted that the details of the lost cheques along with account number and branch were not mentioned in his examination-in-chief in affidavit. He also admitted that in his examination-in- chief in affidavit that it was also not mentioned when Mithan Das informed the Branch Manager PNB, SDM Office Branch, Chakmaghat, Khowai about missing cheques. Also admitted that the date of lodging FIR or GD number in connection with missing cheques were not mentioned in his examination-in- chief in affidavit. [13] DW-3, Amal Ch. Das is also a Forest Guard posted at Jampuijala at Charilam Office. He stated that he know forester Mithan Das who informed him that he had lost five signed cheques but unwritten on 20.08.2022 in any place from Rastharmatha, Bishalgarh and in this regard, GD Entry was made. During cross-examination, he stated that the details of the lost cheques of Mithan Das viz. Account number and Branch of the Bank have not been mentioned in is examination-in-chief in affidavit. It was also not mentioned in the affidavit as to when Mithan Das informed the matter to Branch Manager PNB, SDM Office Branch Chakmaghat Khowai and in his examination-in-chief in affidavit it was also not mentioned the date of lodging of the FIR or GD number. These are the sum and substance of the evidence on record. [14] The complainant before the Learned Trial Court proved the disputed cheque marked as Exbt.P 2, banking slip marked as Exbt.P 3, memorandum of the bank dated 25.08.2022 marked as Exbt.P 4 and the advocates notice dated 01.09.2022 marked as Exbt.P 5. To decide the case, Learned Court below determined the following points : “i) Whether the accused drew the cheque bearing No.335061 dated 22.08.2022 of Rs.twenty lakhs only from his account No.0584010343565 maintained in the Punjab National Bank, Chakmaghat SDM Office, Khowai Branch, for payment of the amount to complainant Sri Ajit Dutta from out of that account? (9) ii) Whether such cheque was drawn for the discharge, in whole or in part, of any debt or other liability? iii) Whether the cheque was returned by the State Bank of India, Bishramganj Branch unpaid because of the amount of money standing to the credit of that account to be insufficient to honour the cheque? iv) Whether the complaint has been lodged to the Court after fulfilling the legal requirements provided under section 138 proviso and section 142 of the Negotiable Instruments Act, 1881 ?” In determining the Point No.i Learned Court below came to the observation that Exbt.2 i.e. the cheque was issued on 22.08.2022 and the same was submitted the Bank on the same day and deposit slip was marked as Exbt.P.3. So, Learned Court below came to the observation that the cheque was deposited within time as required under sub clause (a) of Section 138 of N.I. Act. In respect of legal notice the complainant appellant stated that on 01.09.2022 he send a legal notice to the accused with request to pay the amount within 15 days. But as he failed to make the payment, so he filed the case. During examination before the Court the appellant complainant also reiterated the same fact and also stated that he submitted an acknowledgement receipt of the legal notice along with a petition but the same was not placed before the Court and no documentary evidence was placed on record that the notice was duly served. The respondent accused also in his examination-in-chief in affidavit not denied the said fact. But as the complainant failed to prove the postal receipt showing service of notice upon the respondent accused, so, the Learned Trial Court below came to the observation that the complainant has failed to prove the requirements of sub clause (b) of section 138 of N.I. Act i.e. the statutory period. Finally, came to the conclusion that since the complainant has failed to prove the demand notice upon the respondent accused, so Learned Court below did not rely upon the appellant complainant. Learned Court further came to the conclusion that as the complainant has failed to serve the demand notice, so, the case was not maintainable as the appellant complainant has failed to fulfill the requirements of Section 138 of N.I. Act. Now, for the sake of convenience, I would like to (10) refer herein below the relevant provision of Sections 138 of N.I. Act which provides as under : 138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque,[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.—For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.” From the above it appears that the disputed cheque should be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier the payee or the holder after receipt of information from the Bank regarding dishonor of cheque shall intimate to the issuer of the cheque within 30 days regarding the return of the cheque as unpaid and after that, the drawer of the said cheque should be informed by sending notice to make payment within 15 days. These are the basic three ingredients for initiation of proceeding under Section 138 of N.I. Act. [15] Here, in the given case, the cheque was deposited to the bank within the stipulated period and the same was returned unpaid on the ground of insufficiency of fund and the notice was also issued upon the respondent accused but the respondent accused failed to make payment within 15 days. (11) Legal notice was marked as Exbt.5 without any objection. Although, the Learned Court below on the ground that the postal receipt was not proved came to the observation that the requirement of sub clause (c) of Section 138 of the N.I. Act could not be proved by the complainant. But the respondent accused in his examination-in-chief in affidavit specifically did not deny that no cheque was issued by him, even, the said fact of issuing notice as asserted by the complainant appellant has not been rebutted or denied by the respondent- accused during his examination before the Court. So, the observation of Learned Court in this regard is not convincing and the Learned Court below has failed to appreciate the evidence on record in this regard. [16] Now, I would also mention the relevant provision of Section 142 of N.I. Act which provides as under : 142. Cognizance of offences.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: 2 [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.]. (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,— (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.—For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.] From the aforesaid provision also it appears that the complaint was filed by the complainant appellant within the stipulated period required by law. (12) [17] Now, in respect of source it is the admitted position that the complainant is an income tax payee and filing return to the department. In his examination-in-chief he specifically stated that how he procured the amount which he had lent to the respondent accused. On bare perusal of Section 138 of N.I. Act nowhere I find that the complainant should disclose his source from where he had procured the money. So, in my considered view it appears that Learned Court below wrongly came to the conclusion that the complainant has failed to disclose the source from which he procured the amount. [18] In course of hearing of argument, Learned counsel for the appellant complainant has relied upon one citation of the Hon’ble Supreme Court of India in Kalamani Tex and Another versus P. Balasubramanian reported in (2021) 5 SCC 283 wherein in para No.17 the said Apex Court has observed as under : “17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar : (2019) 4 SCC 197 where this Court held that : “36.Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was issued in discharge of a debt.” Referring the same, Learned counsel for the appellant complainant submitted that since the complainant has been able to prove the cheque issued by the respondent accused, so, there is no scope to presume that the cheque was not issued by the respondent accused. Learned counsel for the appellant complainant referred another citation in Rangappa versus Mohan reported in AIR 2010 SCC 1898 wherein in para No.15 the Hon’ble Apex Court observed as under : “15. Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the `stop payment' instructions to his bank. Furthermore, the instructions to `stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the (13) accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant-accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction-related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction- expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant.” Referring the same, Learned counsel for the complainant appellant submitted that since the accused has failed to draw the attention of the Court by raising any presumption that his alleged cheques were lost and although he took the plea that he intimated the police station and the bank authority regarding missing of cheques but in this regard, no documents could be produced and proved by him to substantiate his assertions and even his independent witnesses could not give any specific account about that. There was no evidence from his side to stop payment to the Bank. So, the story projected by the respondent accused that he had lost his cheque cannot be accepted. [19] On the other hand, Mr. Sankar Lodh, Learned counsel appearing on behalf of the respondent accused at the time of hearing referred few citations regarding additional evidence. In Rajaram Sriramulu Naidu (since deceased) through L.Rs. v. Maruthachalam (since deceased) through L.Rs reported in AIR 2023 SC 471 wherein in para No.12 Hon’ble the Apex Court observed as under : 12. This Court in the case of Baslingappa v. Mudibasappa : AIR 2019 SC 1983 has summarized the principles on Sections 118(a) and 139 of the N.I. Act. It will be relevant to reproduce the same. “25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (14) 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence.” Learned counsel for the respondent accused also referred another citation of the Hon’ble Supreme Court of India in Basalingappa versus Mudibasappa reported in AIR 2019 SC 1983 wherein in para Nos.23 and 24 the said Hon’ble Apex Court observed as under : “23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:- (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come in the witness box to support his defence. 24. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of the PW1, when the specific question was put that cheque was issued in relation to loan of Rs.25,000/- taken by the accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs.4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs.4,50,000/- being admitted in the year 2010 and further payment of loan of Rs.50,000/- with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. During his cross-examination, when financial capacity to pay Rs.6 lakhs to the accused was questioned, there was no (15) satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.” Referring the same, Learned counsel for the respondent accused submitted that before the Learned Trial Court the accused complainant has failed to prove the cheque in accordance with law and the signature of the accused that he has issued the same. In respect of adducing additional evidence, Learned counsel for the respondent accused relied upon another citation of the Hon’ble Supreme Court of India in Rajvinder Singh versus State of Haryana reported in (2016) 14 SCC 671 wherein in para No.12 the Hon’ble Apex Court observed as under : “12. At the outset, we must deal with submissions as regards application for leading additional evidence at the appellate stage. It has been the consistent defence of the appellant that the dead body found in agricultural fields in District Muzaffar Nagar was that of Pushpa Verma and he went to the extent of producing photograph of the dead body in the present trial. He also examined Brahm Pal Singh, Sub- Inspector and other witnesses. It was certainly possible to examine Forensic Expert at the trial court stage itself and the High Court was right and justified in rejecting the prayer to lead additional evidence at the appellate stage. Nonetheless, we have gone through the report of said Forensic Expert engaged by the appellant. The exercise undertaken by that expert is to start with the admitted photograph of Pushpa Verma on a computer, then remove the “bindi” by some process on the computer, then by same process remove her spectacles and by computer imaging change the image as it would have looked if the lady was lying down in an injured condition. The computer image so changed was then compared with the photograph of the dead body. We have seen both the images and we are not convinced at all about any element of similarity. We do not therefore see any reason to differ from the view taken by the High Court.” Learned counsel for the respondent accused relied upon another citation of the Hon’ble Supreme Court of India in AjitSinh Chehuji Rathod versus State of Gujarat and Another reported in (2024) 4 SCC 453 wherein in para No.9 the Hon’ble Apex Court observed as under : “9. It is apposite to mention that the learned first appellate court i.e. the Principal Sessions Judge, Gandhinagar had taken note of the fact that during the trial, the appellant examined the witness of Bank of Baroda in support of his defence but not a single question was put to the said witness regarding genuineness or otherwise of the signatures as appearing on the cheque in question.” (16) Referring the same, Learned counsel for the respondent accused submitted that the complainant has failed to prove the case against the respondent accused. So, the Learned Court below rightly and reasonably delivered the judgment acquitting the respondent accused from the charge of this case. [20] Now, for the sake of convenience, I would like to refer herein below the relevant provision of Sections 20, 118 and 139 of the N.I. Act which provides as under : “20. Inchoate stamped instruments.—Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount: Provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.” “118. Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made:— (a) of consideration:—that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date:—that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance:—that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer:—that every transfer of a negotiable instrument was made before its naturity; (e) as to order of indorsements:—that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on; (f) as to stamp:— that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course:—that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrutment has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of providing that the holder is a holder in due course lies upon him.” “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 section138 for the discharge, in whole or in part, of any debt or other liability.” (17) On perusal of the aforesaid provisions, it appears that if the issue of cheque is proved and also if it is found that the cheque was issued by discharge of debt, in that case the presumption will go against the accused in a case, if it is signed. [21] Here in the case at hand, since there is no rebuttable evidence on record from the side of the respondent accused that the signature was not given by him and since the respondent accused has failed to disprove the said fact by showing any documentary evidence on record that regarding missing of cheques he had intimated to the police station and to the bank, so the defence theory as projected by the respondent accused cannot be accepted in the given circumstances. Furthermore, as per Section 139 of N.I. Act creates a rebuttable presumption in favour of the complainant appellant that the cheque in question had been received by the complainant for the discharge in whole or in any part of any debt or other liability. Since, the complainant has been able to prove that the cheque was issued by the respondent accused in his favour, against his debt (loan), so the burden automatically shifts upon the accused to rebut the same on preponderance of probabilities that there was no liability for the amount of cheque in question. Learned Trial Court below came to the observation that the source of Rs.20,00,000/- could not be properly explained by the complainant and there was no documentary transaction in this regard. But on bare perusal of the relevant provision of N.I. Act nowhere it is found that at the time of filing the complaint to a Court the complainant shall be under obligation to disclose the source of money which he had lend to the accused and furthermore, since the complainant disclosed his source by adducing oral evidence without any objection from the defence side, so the observation of the Learned Trial Court in my considered view was also not correct. [22] Admittedly in this case, the Manager of the Bank, PW-2 could not explain anything regarding the memo issued by the Bank i.e. Exbt.P/4 from which it is crystal clear that the cheque bearing No.335061 was dishonoured (18) due to insufficient fund and the respondent accused before the Learned Trial Court failed to make any circumstance to disbelieve the said document. Although, Learned Trial Court without considering Exbt.P/4 based upon his decision on the evidence of PW-2 which in my considered view Learned Trial Court below has failed to appreciate the same in accordance with law. Moreover, since the respondent has failed to prove his defence case both by oral/documentary evidence on record, so there is no scope to disbelieve the story of the appellant. [23] Thus, after hearing both the sides, it appears to this Court that Learned Court below at the time of delivery of judgment has failed to consider the requirements of law to prove a charge under N.I. Act at the time of disposal of this case for which this case requires to be remanded back to the Learned Trial Court with a direction to rehear the case afresh right from the time of taking evidence i.e. after affording opportunity to both the sides to adduce fresh evidence and thereafter to deliver a fresh judgment in accordance with law. [24] It is observed that in the body of the judgment some typographical errors were found in the first page of the judgment as well as in the last page of judgment in respect of date of judgment and also in respect of amount of money involved in the cheque for which it is required that in future the Learned Court below before signing the judgment repeatedly should go through line by line the body of judgment so that no clerical/typographical error is detected to avoid any confusion. Furthermore, it is also observed that at the time of recording evidence of the witnesses the documents were not marked in accordance with the criminal rules and order because every document should contain a separate exhibit mark and once the affidavit is submitted by either of the parties then the question of separate marking of exhibit for the affidavit and signature of the witness is not required to be further marked by the concerned Trial Court. (19) [25] Situated thus, it appears to this Court that the Director Judicial Academy be asked to take step for conducting fresh training program of the newly appointed Judicial Officers for proper dealing with the cases under N.I. Act for their future guidance so that the evidence is properly appreciated and the documents are properly marked and exhibited during trial. [26] In view of the above, the judgment and order of acquittal dated 22.12.2023 delivered by Learned Sub-Divisional Judicial Magistrate, Bishalgarh, Sepahijala, Tripura in connection with Case No.N.I.15 of 2022 is hereby set aside. The case is remanded back to the Learned Trial Court with a direction to rehear the case afresh right from the time of taking their evidence both oral/documentary evidence by affording reasonable opportunities to both the parties and to deliver a fresh judgment in accordance with law. The entire exercise shall be completed within a period of 6(six) months from the date of receipt of a copy of this judgment. With this observation and direction, this appeal stands disposed of. Send down the LCR along with a copy of this judgment/order. Copy of this judgment also be communicated to Director, Tripura Judicial Academy. Pending application/s, if any, also stands disposed of. JUDGE Sabyasachi B SABYASACHI BHATTACHARJE E Digitally signed by SABYASACHI BHATTACHARJEE Date: 2025.02.20 05:02:32 +05'30'