The mere factum of issue and dishonoration of the cheque by the plaintiff to the accused is not sufficient for the accused under Section 138 of the N.I Act to be criminally implied, unless the court has demonstrated to the satisfaction of the plaintiff the check issued by the accused, in order to release its legally enforced debt to the plaintiff. The judgement was passed by the High Court of Tripura in the case of Shri Pradip Roy v. Shri Bidyut Pal [CRL.A. NO.9 OF 2018] by Single Bench consisting of Hon’ble Justice Mr Arindam lodh.
The instant appeal arises out of judgment passed in connection with case No. NI 205 of 2015 wherein the respondent had been acquitted from the charges levelled against him under Section 138 of the Negotiable Page 2 of 19 Instrument Act 1881 and dismissed the application filed by the complainant-appellant.
The facts of the case are that the appellant and the respondent are professional contractors. It was also found that the complainant was entitled to get back 50 per cent of the total security deposit of Rs.10,00,000/ i.e., Rs.5,00,000/. According to the appellant, the respondent had a legal debt of Rs.9,79,294/ towards the complainant and out of the said amount he paid Rs.1,75,000/- by cheque to the complainant which was duly encashed. The appellant requested the respondent to pay the remaining amount of the deposit he failed to pay.
Learned counsel for the appellant contended that the judgment of the learned Trial Court was found to be cryptic in nature as the learned Judge had contradicted himself to arrive at his finding whether the complainant had a legally enforceable debt to the accused-respondent. Citing various decisions at the Bar learned counsel contended that the learned Court below had failed to consider the natural presumption that enforceable debt always lies in favour of the holder of the cheque, as envisaged under Section 138 of Negotiable Instrument Act.
Learned counsel for the respondent mainly focused on the fact that the accused succeeded in discharging his initial burden that he did not issue the said cheques and that the alleged cheques were not issued in discharge of any debt or liability in whole or in part. The burden of proof lies on the complainant. No witnesses came forward to support the contention of the complainant. No documentary evidence was produced to prove that such a transaction had taken place. The complainant failed to discharge his burden to show that in the discharge of any debt or liability, the dishonoured cheques were allegedly issued by the respondent. The complainant did not submit any income tax return to substantiate his ability to make a capital investment.
While dismissing the petition the court held that “the mere factum of the issue and dishonouring of cheque by the accused to the complainant is not sufficient to criminally implicate the accused under Section 138 of the N.I. Act unless it is proved to the satisfaction of the Court that the cheque was issued by the accused to the complainant in the discharge of his legally enforceable debt towards the complainant.” Further, the court held that “failure of the complainant to produce any proof either oral or documentary relating to the joint work executed by him with the accused not only create a shadow of doubt regarding his case but also leads to an adverse inference against him under Section 114(g) of the Indian Evidence Act.”
