IN THE COURT OF KC BORO, SUB-DIVISIONAL JUDICIAL MAGISTRATE AT DIBRUGARH
Case No.104 C/09
U/S 138 NI Act
Chandana Hazarika …………………Complainant
-vs-
Mouchumi Baruah (Gogoi) …………….…Accused.
Appearance:-
Pradip Gogoi, learned advocate for the Complainant &
Biswajit Barooah, learned advocate for the accused.
Evidence recorded on 07-08-2010.
Argument heard on 14-02-2013.
Judgment prepared & delivered on 28-02-2013,
02-04-2013.
FACTS OF THE CASE
1.The facts giving rise to the complainant case is that the complainant came to know on 03-04-2009 from her advocate P.Gogoi, that the accused already received the Advocate’s notice and after her advocate received back the A/D card on 02-04-09 at Dibrugarh Bar Association and despite having received the advocate’s notice, the accused failed to repay the claim amount and also deliberately failed to contact the complainant and as such the complainant was compelled to file this case u/s 138/142 NI Act against the accused claiming the entire mis-appropriated and payable amount of Rs.39,136/- with 18% interest per annum and costs of the suit etc. from the accused.
2.The cause of action of this case arose when the accused willfully and deliberately failed to deposit the LIC premiums after collecting the same from the complainant, again when failed to deposit Rs.10,000/- for opening of LIC policy and thereafter issued a cheque of Rs./39,136/- on 16-02-09 in favor of the complainant and when on 24-02-09, the UBI Bank Authority dishonored and return the cheque without payment being reason for insufficiency of fund in the bank account of the accused and thereafter again on while receiving advocate notice failed to repay the said mis-appropriated and defaulted amount to the complainant and hence the case.
3.It is prayed that this court may be pleased to take cognizance of the petition and thereafter issue process to the accused and after taking necessary hearing pass order in favor of the complainant. To support the facts of the case complainant has been relied upon the 8 documents marked as Doc-1 to 8 out of which document no.4 is the cheque.
4.Upon consideration of the complaint petition and the relied upon documents a prima facie case was made out u/s 138 NI Act against the accused, Smt.Mousami Baruah and accordingly cognizance was taken against the accused, Smt. Mousami Baruah u/s 138 NI Act. Hence the given case.
5.Accused person was summoned to appear before this court. After her appearance, she was allowed to go on bail. Copy was furnished to her. The substance of accusation u/s 138 NI Act was explained to the accused to which she pleaded not guilty but claimed to be tried.
6.To prove the case Complainant examined four witnesses. The statement of the accused person was recorded u/s 313 of Cr.PC. Her plea was of total denial of the allegation made against her by the Complainant. However the accused person declined to adduce her defence. Argument was heard from both sides.
POINT FOR DETERMINATION
7.Whether the accused person by issuing the cheque no.822488 cheated the complainant to avoid her cheque liability to her and thereby committed an offense punishable u/s 138 NI Act?
DISCUSSION, DECISION AND REASON THEREOF
8.It is stated by PW-1 that she came to know on 03-04-2009 from her advocate P.Gogoi, that the accused already received the Advocate’s notice and after her advocate received back the A/D card on 02-04-09 at Dibrugarh Bar Association and despite having received the advocate’s notice, the accused failed to repay the claim amount and also deliberately failed to contact her and as such the complainant was compelled to file this case u/s 138/142 NI Act against the accused claiming the entire mis-appropriated and payable amount of Rs.39,136/- with 18% interest per annum and costs of the suit etc. from the accused.
9.The cause of action of this case arose when the accused willfully and deliberately failed to deposit the LIC premiums after collecting the same from the complainant, again when failed to deposit Rs.10,000/- for opening of LIC policy and thereafter issued a cheque of Rs./39,136/- on 16-02-09 in favor of the complainant and when on 24-02-09, the UBI Bank Authority dishonored and return the cheque without payment being reason for insufficiency of fund in the bank account of the accused and thereafter again on while receiving advocate notice failed to repay the said mis-appropriated and defaulted amount to the complainant. Hence the case was filed seeking relief. She supported Ext-1 to 8.
10.Ext-1 is the L.I.C. policy in the name of Miss.Archana Hazarika.
Ext-1(1) is the name of Smti.Archana Hazarika in the said L.I.C. policy.
Ext-2 is the written document.
Ext-2(1) are the signatures of the accused. Ext-3 is the agreement.
Ext-3(1) & 3(2) are her signatures.
Ext-3(3) & 3(4) are the signatures of the accused.
Ext-4 & 5 are the dishonored cheque, letter informing the dishonor of the bounce cheque of UBI, Dibrugarh Branch.
Ext-4(1) is the signature of the accused. Ext-6 is the advocate notice.
Ext-7 is the postal receipt. Ext-8 is the A/D postal card.
Ext-8(1) is the signature of the accused.
11.According to PW-2, Indrajit Dutta, the accused failed to return the borrowed amount of Rs.6,000/- after three days and then the complainant asked the accused to return the borrowed amount along with demanded amount to deliver the L.I.C. quarterly premium paying receipts and L.I.C. policy amounted to Rs.10,000/- immediately. Then the accused first said that all the premium receipts are with one Development Officer of L.I.C. Dibrugarh Main Branch Office and when the complainant enquired at the said L.I.C. office, then only the complainant came to know that no any premiums were deposited except 1st premium and all the L.I.C. premiums of Rs.23,136/- and Rs.10,000/- policy amount and Rs.6,000/- borrowed amount total Rs.39,136/- were mis-appropriated by the accused and accordingly the same putting her signature on the said document on 11-02-09 at Dibrugarh.
12.The accused again executed an Agreement in N.J. stamp paper in presence of witnesses on 11-02-09 to repay the entire mis-appropriated amount of Rs.39,136/- on 16-02-09 with fail. Ext-3 is the said agreement and Ext-3(5) is her signature and Ext-3(6) signature of witness Nariur Rahman of Seujpur, Dibrugarh.
13.Thereafter the accused on the due date of 16-02-09 issued a cheque in the name of the complainant at the L.I.C. Office, Dibrugarh being cheque no.822488 sum of Rs.39,136/- dated 16-02-09 of S.B. A/c no.358258 of U.B.I., Dibrugarh Branch and accordingly, the complainant on the said date deposited the cheque at her account at U.B.I, Dibrugarh but on 24-02-09 bank authority returned the cheque without payment and dishonored it due to reason insufficiency of fund in the account of accused and in that way, the accused have intentionally and deliberately issued the said dishonored cheque to the complainant with having full knowledge of insufficiency of fund at the bank account and just to cheat and defraud the complainant.
14.According to PW-3, Gayatri Dutta when the accused failed to return the said borrowed amount of Rs.6,000/- after 3 days and then the complainant demanded the accused to return the lended amount immediately and also demanded to deliver the L.I.C. policy and L.I.C. premium receipts etc. Then the accused first said that all the premium receipts and L.I.C. policy are with the Development Officer and on suspicion, when the complainant enquired at the L.I.C. Office, Main Branch, Dibrugarh, then only the complainant came to know that no premiums were deposited and policy amount and premiums were mis-appropriated by the accused.
15.Thereafter the accused promised to pay the mis-appropriated amount of Rs.39,136/- on 16-02-09 but instead of paying in cash the accused issued a cheque on 16-02-09 of U.B.I, Dibrugarh, Main Branch in the name of Smt.Chandana Hazarika amounted of Rs.39,136/-.
16.When the complainant deposited the said cheque at the U.B.I.Dibrugarh Main Branch but the Bank Authority dishonored the cheque due to reason insufficiency of fund in the account of the accused and thus cheated the complainant.
17.PW-4 is the Bank’s Chief Manager of U.B.I. He deposed that PW-1 has Bank account in his bank. Ext-4 is the cheque leaf issued from his bank to the PW-1‘s saving account number. The cheque amount was Rs.39,136/- dated 16-02-09. Ext-5 is the cheque memo regarding the bounce cheque. Ext-4 is the cheque no.822488. The cheque was dishonored on 24-02-09 as there was no sufficient fund in the account of the accused person. It was dishonored due to insufficiency of fund in the account of the accused who has a savings bank account in his Bank. Ext-5(1) is the signature of S.K.Das which he identified.
18.In his cross-examination he stated that while the cheque was bounced he was not in the bank as such he did not know the transaction between the accused and the complainant as because he came to depose before the court without bank’s ledger book or book of account’s. PW-3 also supported of mis-appropriating 39,136/- by the accused to the PW-1 in making L.I.C. policy. According to PW-2 also stated that in view of making L.I.C.policy the accused mis-appropriated Rs.39,136/- from the PW-1. In the cross-examination of PW-1, the accused was known to her University days in the year, 1996. They were known to each other since then, but in course of time the accused approached PW-1 from making L.I.C.policy for her sister. Accordingly she advanced the cheque amount in a phase manner totaling Rs.39,136/-. Ext-2 + 18% interests accrued thereon.
19.In defense of the contention asserted against her by the PWs, the DW-1 (accused) denied of receiving the cheque amount from the PW-1. It is a fact that PW-1 took her signature in a two blank N.J. stamp papers which were completely blank. She had also taken leaf of her cheque book with her signature thereon. As per her verbal agreement was that whenever she would return the money taken by her of Rs.5,000/-. In return of pre-signed cheque leaf and blank papers but the complainant did not comply it. She also denied the Ext-6 claimed interest of 12% upon the cheque amount as there is no provision u/s 138 NI Act. In her cross-she had relationship with PW-1 since 2001 and the transaction as regards to L.I.C. policy between them is a fact but the crux of the case was the cheque amount either it was 5 thousand or 39,136/-. In this regard:
S.C. on legally enforceable debt.
Scope of presumption u/s 139, NI Act.
20.In a recent judgment, Rangappa v Sri.Mohan, a three-Judge Bench of the Supreme Court has clarified the scope of presumption u/s 139 of the NI act; and appears to have overruled the decision of two Judges in Krishna Janardhan Bhat v. Dattatraya Hedge. Section 139 of the Act reads, “Presumptiion in favor 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, or any debt or other liability.” The relevant portions of the judgment of the Bench (Justice S.B.Sinha and Justice H.S.Bedi) in Krishna Janardhan Bhat’s case are as follows: “Indisputably, a mandatory presumption is required to be raised in terms of section 118 (b) and section 139 of the Act. Section 13(1) of the Act defines negotiable instrument to mean a promissory note, bill of exchange or cheque payable either to order or to bearer. Section 138 of the Act has three ingredients, viz.: (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption u/s 139 of the Act. It merely raises a presumption in favor of a holder of the cheque that the same has been issued for discharge of any debt or other liability…” These observations could perhaps be taken to imply that in prosecutions for violation of section 138 of the Act, the complainant would have to prove the existence of a legally enforceable debt, only after which the presumption u/s 139 would operate to the extent that the Court shall presume that the cheque was issued in relation to that debt. The larger Bench in Rangappa has clarified that this would not be the correct-position, “In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observation in Krishna Janardhan Bhat (supra) may not be correct.
21.The crux of the case is that both the complainant and the accused are familiar to each other since the time they completed B.Ed from the Dibrugarh University and thereafter the accused met with the complainant at “Hakhi Girl’s Hostel, Bishnu Nagar, Dibrugarh Town in December, 2001 and then the accused introduced herself as L.I.C.I. agent of L.I.C.I. office, Dibrugarh Main Branch and thereafter asked to open L.I.C.I. policy and accused assured the complainant to deposit the quarterly LICI premiums by herself at the LICI office in the name of the complainant and on being assured, the complainant opened a LICI policy being policy no.441506033 dated 28-12-01 of sum assured Rs.50,000/- with quarterly premium amount of Rs.822/- in the name of the complainant’s sister Smt.Archana Hazarika and accordingly accused delivered the LICI policy to the complainant.