RAJ KUMAR SEN Vs. ARUN KUMAR HALDER

JUDGEMENT

(1.) This revisional application assails the judgement passed by the learned Additional District and Sessions Judge, 7th F.T.C, Calcutta in Criminal Appeal No. 66 of 2005 thereby affirming the judgement and order dtd. 31/10/2005 passed by the learned Metropolitan Magistrate, 16th Court, Calcutta in Case No. C-1310 of 2002 initiated under Sec. 138 of the N.I. Act. Learned Trial Court was pleased to record an order of conviction against the accused person and sentenced him to suffer simple imprisonment for fifteen days and to pay compensation of Rs.50,000.00 to the complainant.

(2.) Briefly stated the petitioner and the opposite party entered into an agreement to sell of a particular property. The opposite party and his six brothers paid a sum of Rs.1,00,000.00 by issuing seven different cheques towards the earnest money. Ultimately, the transaction did not take place, a civil suit was filed for specific performance of contract. The petitioner gave seven cheques to refund the earnest money to seven intended purchasers. Those cheques were not received. During pendency of the civil suit the opposite party and his brothers approached the petitioner for a settlement and the petitioner agreed to pay Rs.25,000.00 to each of the intending purchasers and thus he issued seven cheques of Rs.25,000.00 each. Those cheques were presented but not honoured for insufficient fund. Consequently proceeding under Sec. 138 of the N.I. Act was initiated. Thereafter, the complainant received another cheque of Rs.40,000.00 from the petitioner purportedly issued in discharge of his liability to repay the loan. The said cheque was dishonoured and the drawee of the cheque Sri Arun Kumar Halder (since deceased) initiated another proceeding under Sec. 138 of the N.I. Act registered as case number C-1310/2002. Learned Trial Court recorded an order of conviction after conclusion of trial.

(3.) Assailing the impugned judgement Mr. Chatterjee, learned counsel representing the petitioner submits that the petitioner had no legal obligation to discharge and, therefore, had no reason to issue any cheque of Rs.40,000.00. He paid a sum of Rs.25,000.00 for which one cheque was issued by him. But learned Trial Court did not consider the said fact which was disclosed by the petitioner while adducing evidence as D.W. According to Mr. Chatterjee though Sec. 139 of the N.I. Act carries with it a presumption of law that the cheque was issued in discharge of liability incurred by the drawer of the cheque, this is a rebuttable presumption and the drawer of cheque can rebut such presumption by adducing evidence. Theory of preponderance of probability is the guiding factor and the drawer of the cheque has no obligation to prove any fact beyond reasonable doubt.