K. BHOOPATHY Vs. SUSHANTA SAHA

JUDGEMENT

(1.) Both the criminal appeals are taken up together as common question of law is raised therein. Apart from the same both the appeals have been filed by a common appellant against a common respondent under section 138 of the Negotiable Instrument Act, 1881 on dishonour of several cheques issued in discharge of alleged debt of the liabilities.

(2.) Fundamentally, two legal points have evolved. Firstly, the presumption raised under Section 139 of the Negotiable Instrument Act, 1881 is restricted to the debt or other liability and not on legally enforceable debt or the liability. Secondly, is it obligatory on the part of an accused to lead an evidence of rebuttal which is opposed to the right of innocence provided under the criminal jurisprudence.

(3.) Both the appeals have a common thread of facts and narration of one would suffice to addressing the issues raised in the instant appeals. Two separate complaint cases were filed by the appellant alleging dishonour of cheque issued by the respondent for the debt duly acknowledged upon execution of a promissory note. The complainant is engaged in a business of pharmaceutical goods and carrying on such business in the name and style 'M/s Shri Krishna Pharmacy'. The accused is running a retail pharmaceutical shop in the name and style of 'M/s Priya Medical Store' and the transaction between the parties ensued as far back as in the year 2005. Because of the long business association, the closeness was developed and the friendship grew which led the complainant/appellant to supply goods on credit. Because of such closeness sometimes the complainant also accommodated the accused/respondent with the loan which were repaid on some of the occasions. However, it was subsequently detected that there is a due, to the tune of Rs. 18,00,000/-, both on account of supply of pharmaceutical goods and the accumulated loan and the demand was raised by the complainant/appellant for repayment thereof. Subsequently, the accused/respondent executed a promissory note before a Notary Public on 17.03.2012 which contemplates the liquidation of the outstanding debt in three instalments. Several cheques were issued as security for due payment of the instalments with an understanding that in the event of default, the same can be realised therefrom. Two such cheques covering an amount of Rs. 3,00,000/- issued for the first instalment was presented to the bank where the complainant has its account but return un-cashed with the remark 'exceeds arrangement'. The notice was issued in terms of Section 138 of the said Act and on failure to discharge his liability the proceeding was initiated before the Judicial Magistrate. Subsequently, the accused defaulted in payment of the second and third instalments and the cheques issued in this regard were also presented and re- presented, but on each occasion were dishonoured with the remarks 'exceeds arrangements'. The statutory notice though served upon the accused/respondent, was not replied to and it appears that there was a delay of 16 days in presenting the complaint before the learned Judicial Magistrate. There was prayer for condonation of such delay which was, in fact, condoned and the process was initiated in both the matters.