MD. SAHA ALAM Vs. MD. GULAM MUSTAFA

JUDGEMENT

(1.) This is an appeal under Sec. 378 (4) of the Cr.P.C. against the judgment and order of acquittal dtd. 29/6/2019 delivered in Case No.CR.(NI) 02 of 2016 by the Chief Judicial Magistrate, Sepahijala, Sonamura.

(2.) The appellant filed a complaint under Sec. 138 of the Negotiable Instruments Act, 1881, NI Act in short, when a cheque bearing No.968670 dtd. 15/9/2018 for the amount of Rs.6,50,000.00 [Rupees Six lakhs Fifty thousand] drawn on United Bank of India, Sonamura Branch was dishonoured "due to insufficiency of fund." The said cheque was sought to be encashed through the State Bank of India, Sonamura Branch. On 21/9/2016, the appellant received the memo of return recording dishonour of the said cheque for insufficiency of fund. Apparently, the appellant followed the statutory "requirement" to institute the complaint under Sec. 138 of the NI Act. After the substance of accusation was read out to the respondent No.1 under Sec. 251 of the Cr.P.C. which was denied by the respondent No.1, the appellant led the evidence in support of the accusation. He adduced as many as 4[four] witnesses and introduced 4[four] documents including the original cheque that was dishonoured [Exbt.1], the return memo of the cheque [Exbt.3] and the statutory notice of demand [Exbt.4]. The respondent No.1 did not adduce any evidence. After recording of the evidence, the respondent No.1 was examined under Sec. 313 (1b) of the Cr.P.C. in respect of the incriminating materials as apparently surfaced in the evidence. The respondent No.1 denied those materials. According to him, he has been implicated falsely. The Chief Judicial Magistrate heard the arguments, purportedly appreciated the evidence and held that the complainant through PWs-2,3 and 4 has insisted that the respondent No.1 borrowed a sum of Rs.6,50,000.00 from the complainant [the appellant herein]. The Chief Judicial Magistrate has observed that in their evidence there is not even a whisper as regards the handing over of that huge sum of money in cash. He has further observed that those witnesses did not state directly that the complainant had delivered that cash to the respondent No.1. According to the Chief Judicial Magistrate, this was a serious omission in the complaint itself, since PW-2 ought to have clearly reflected that he delivered and handed over a sum of Rs.6,50,000.00 to the accused. For this, the testimony of PWs-2,3 and 4 was considered to have no foundation and cannot be believed. Thus, by the judgment dtd. 29/6/2019, the Chief Judicial Magistrate has further held that the liability to pay has not been proved and thus, the onus did not shift to the respondent No.1 for rebutting the presumption under Sec. 139 of the NI Act. Even the Chief Judicial Magistrate has observed that there is serious inconsistency between the statements in the complaint and the demand notice [Exbt.4]. In Para-27 of the said judgment dtd. 29/6/2019, the Chief Judicial Magistrate has observed as follows:

(3.) Thereafter, the Chief Judicial Magistrate has further observed that it cannot be held conclusively that Exbt.1 was signed and authored by the respondent No.1 in discharge of his legally enforceable debt and in other words, the cheque bears the genuine signature of the respondent No.1. Having observed thus, it has been finally held that the complainant [the appellant herein] has not been able to prove the accusation of committing offence punishable under Sec. 138 of the NI Act against the respondent No.1 beyond reasonable shadow of doubt and thus, the respondent No.1 is liable to be acquitted from the said accusation. As stated earlier, the said judgment dtd. 26/6/2019 has been called in question in this appeal.