IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, TINSUKIA. Judicial Magistrate First Class, Tinsukia. C.R. Case No. 174/2003 U/S. 138 N.I. Act.

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1 Page No.1 IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, TINSUKIA Present : Md. N.A.Laskar, AJS, Judicial Magistrate First Class, Tinsukia. C.R. Case No. 174/2003 U/S. 138 N.I. Act. Sri. Sajjan Kumar Agarwal (Goel). S/O. Sri. Moni Ram Goel, Bordoloi Nagar, Tinsukia, District. Tinsukia, Assam...Complainant. Vs- 1. M/S. R. S. Trading Co., Gandhi Park Road, (Near cold Storage) P.O. and District. Tinsukia. 2. Mr. Pisi Jawlai Singphoo, (Since deceased) (Attorney of the M/S. R. S. Trading Co.). S/O. Sri. Pisi Duja Singphoo, Miao Colony, P.O. Miao. District. Changlang, Arunachal Pradesh. 3. Mrs. Roitong Shingphoo. W/O. Mr. C. C. Singphoo. Goju Village, P.O. Bardumsa, Distrcit. Changlang, Arunachal Pradesh.... Accused. Advocates Appeared : 1. Mr. B. Dutta, Ld. Advocate for the Complainant Side. 2. Mr. B. Prasad, Ld. Advocate for the accused. Date of evidence: 29/09/2008, 23/06/2009, 01/08/2009 and 28/08/2009. Date of argument: 25/04/2013. Date of Judgment: 09/05/2013.

2 Page No.2 JUDGMENT 1. This is an allegation of offence U/S. 138 of N.I. Act. against the accused. A. BRIEF STORY OF THE PROSECUTION CASE 2. The prosecution case has been started from the complaint instituted on 25/06/2003 by Sri. Sajjan Kumar Agarwal (Goel). The complainant stated in the complaint that accused Mrs. Roitong Sighpoo is the sole proprietor of the firm viz, M/S. R. S. trading Company (Hereinafter referred in short as 'THE FIRM') and the accused Sri. Pisi Jawlai Singphoo (Since deceased) was the attorney, who looked after the business of the firm. The complainant further stated that on and from 12/01/2002 to 07/03/2002, the accused Pisi Jawlai Singphoo for and on behalf of the Firm of accused took loan of Rs. 17,42,687/- from him which was utilized for purchasing food articles from Food Corporation of India (Hereinafter referred in short as 'the FCI'). 3. The complainant further stated upon his insistence for the repayment of loan on 07/04/2003, the Pisi Jawlai Singphoo (Since deceased), the attorney of the accused Firm came in his residence and hand over an account payee cheque bearing No. B/49/ , valued Rs. 20,00,000/- towards the settlement of the loan and interest thereto. The complainant tendered twice the said cheque to the United bank of India, Tinsukia Branch for encashment but finally on 25/04/2003, the cheque was returned with report of dishonour as 'not arranged for'. The complainant issued statutory notice to the accused for payment U/S. 138(b) of the N.I. Act. and the accused on receipt of notice also submitted reply through their Ld. Advocate on 28/05/2003 but the accused failed to pay the cheque amount. Hence the complaint instituted this complaint. B. INQUIRY

3 Page No.3 4. On receipt of complaint and after examination of the complainant as well upon the perusal of documents cognizance of the offence U/S. 138 of N.I. Act has been taken and process issued against the accused. After the prolonged process the accused has been allowed to be represented by the Ld. Counsel engaged by them and in the meantime the accused Pisi Jalai Singphoo passed away in the month of January, 2005 and the case against the accused Pisi Jalai Singphoo has been withdrawn as per order dated 15/07/2006. The substance of accusations U/S. 138 N.I. Act, explained to the Ld. Advocate represented the accused to which he pleaded not guilty and claimed to be tried. C. THE TRIAL 5. During trial, the complainant side examined three witnesses including the complainant and bank officials. The statements of accused U/S. 313 Cr.P.C. recorded by way of supply of questions and answers furnished by the accused. Though the accused submitted a list of nine witnesses in this case in the body of the statement recorded U/S. 313 Cr.P.C. but later declined to adduce any evidence and vide order dated 04/10/2010 the evidence of the accused side is closed. D. ARGUMENT 6. It is required to be mentioned here that there is also another case pending before this court vide C.R. Case No. 173/2003, where the accused are common. The present complainant is the father of the complainant of the C.R. Case No. 173/2003. An effort has been made to hear the argument together of both cases and in this way the more time consumed during the process of hearing of the argument in the present case and the C.R. Case No. 173/2003. Both the side submitted also written argument in addition to their oral submission, which is already on record. It is also required to be mentioned here that on 22/02/2013, the case was fixed for judgment but due to my personal inconvenience, the judgment was not possible to deliver on that day. Finally, again the

4 Page No.4 argument heard on 25/04/2013 and this court arrived at the findings as follows. E. POINTS FOR DETERMINATION 7. Whether the accused committed an offence U/S. 138 Negotiable Instrument Act, 1881? 8. Whether the accused can be held guilty for the offence U/S. 138 Negotiable Instrument Act, 1881? F. PLEA OF THE ACCUSED 9. The accused denied that the cheque was issued to the discharge of the liability or any debt. The accused further stated that the complainant was working as an agent of the accused Firm and entrusted with the signed cheque book along with the cheque in question. The accused further stated that the complainant for his wrongful gain illegally used one cheque by himself and another through his son Amit Goyal from the signed cheque book, which was with him. G. DETERMINATION OF THE POINTS, DISCUSSIONS, DECISION AND REASONS THEREOF 10. PW-1, in his evidence testified that he is the complainant of this case and the attorney of the accused Firm Mr. Pisi Jawlai Shingpoo (since deceased) requested him to advance loan for purchasing food articles from the F.C.I and being good relation with the accused he agreed to advance the loan. PW-1 in his evidence further stated that during the period from to 07/03/2002 he advanced loan of Rs. 17, 42,687/- to the attorney of the accused Firm and all the payment are made by account payee bank draft and the accused person utilized those bank draft for purchasing food articles from the FCI. PW-1 in his evidence exhibited the statement of bank account vide Ext-5 in this case. The sec-

5 Page No of N. I. Act provides that unless the contrary is proved the presumption of receipt of cheque shall be considered in discharge of any debt or liability either in whole or in part. In cross-examination PW-1 admitted that the Ext-5 is not certified by the bank authority and the all entry of loan transection mentioned in Ext-5. PW-1 further stated in crossexamination that the loan amount paid to the accused is his own money and he has not produced the book of account maintained by him during the course of business. PW-1 further deposed that he had requested and demanded the accused to refund the loan amount and in discharge of said liability the attorney of the accused Firm (since deceased) handed over him an account payee cheque bearing No. B/49/ dated 07/04/2003 of State Bank of India, Tinsukia for some of Rs. 20,00,000/- only as settled between him and the attorney of the Firm (Since deceased) and on the same day he handed over the hand note to the attorney of the accused Firm (since deceased). In cross-examination PW- 1 stated that at the time of delivery the cheque was totally filled up and the said cheque was not signed by the attorney of the accused Firm in his presence. PW-1 in his evidence also admitted that he cannot say about the signature appeared in the over leaf of Ext-1. The defence side marked the signature appeared in the over leaf of Ext-1 as Ext-A. 11. PW-1 in his evidence deposed that the attorney of the accused delivered the cheque No. B/49/50 dated 07/04/2003 for Rs. 20,00,000/-. PW-1 in his evidence exhibited the cheque as Ext-1. PW-1 further deposed that Ext-1(1) is the seal of the accused Firm and the Ext- 1(2) is the signature of the attorney of the accused Firm. The defence plea is that the PW-1 was working as an agent of the accused Firm and the cheque book including the Ext-1 was handed over to the PW-1 during the course of business of the accused Firm and taking the advantage of the provision of N.I. Act, the PW-1 misused the Ext-1 and another leaf of the signed cheque also misused by his son by way of forgery of the date, name of holder and the amount. Ld. Counsel for the complainant submitted that the plea of accused is an admission towards the execution of the cheque by the attorney of the accused Firm. Ld. Counsel for the complainant further submitted that the presumptions laid down in Sec-118 of the N.I. Act as well as Sec-139 lies in favour of the complainant in

6 Page No.6 respect of the issue of cheque, date of execution, holder of a cheque and the issue of cheque in discharge of debt or liability. Ld. Counsel for the complainant further submitted that accused failed to discharge the burden by way of rebuttal evidence against the presumptions of law found in favour of the prosecution of the offence U/S. 138 of N. I. Act. 12. PW-1 further deposed that on 10/04/2003 he tendered the Ext-1 to the State Bank of India, Tinsukia Branch for encashment but the same is dishonoured with a report of Insufficiency of fund. PW-1 in his evidence exhibited the intimation given to him vide Ext-2 from the bank by way of dishonour of the Ext-1. PW-1 in his evidence further exhibited the report given by the bank authority as Ext-3. PW-1 in his evidence further stated on 23/04/2003 upon the information of the attorney of the accused Firm he re-tendered the Ext-1 to the bank for encashment of the amount and that time also the Ext-1 dishonoured with the report as not arranged for. PW-1 in his evidence also exhibited the report furnished by the bank to him on 23/04/2003 as Ext-4. PW-1 in his evidence further stated that on 13/05/2003 he issued notice to the accused as mandated U/S. 138 of N.I. Act, demanding them to pay the amount but the accused failed to pay the amount. From the evidence of the PW-1 it appears that he tendered the Ext-1 within the time limit of six months from the date of issue and also issued notice to the accused for payment within the time limit of thirty days from the date of information of dishonour received by him from the bank and the accused failed to pay the amount within the time of fifteen days. 13. Let us see, how far the accused side succeeded to substantiate their plea by way of rebuttal of the presumptions lies in favour of the complainant case. Ld. Counsel for the accused side submitted that the prosecution failed to prove the issue of notice to the accused before institution of the complaint U/S. 138 of the N. I. Act. Ld. Counsel for the accused further submitted that issue of notice before institution of the complaint and receipt of same by the accused is the mandate of law and in absence of which the proceeding U/S. 138 of the N. I. Act, is not maintainable. Ld. Counsel for the complainant submitted that it is true that the notice issued to the accused before the institution of

7 Page No.7 the proceeding or the receipt of which by the accused is not submitted in this case but at the same time the accused admitted the issue of notice to them and the reply furnished by them in response of the notice. Ld. Counsel for the complainant side submitted that in the Criminal Revision Petition No. 428/2003 instituted by the accused Mrs. Roitong Singphoo, before the Hon ble Gauhati High Court and in the Judgment and Order dated 20/01/2006, passed by Hon ble Gauhati High Court in Criminal Rev. (P) No. 427/2003 and Criminal Rev. (P) No. 428/2003 The complainant side exhibited the Criminal Revision Petition No. 428/2003 as Ext-9 and Judgment and Order dated 20/01/2006, passed by Hon ble Gauhati High Court in Criminal Rev. (P) No. 427/2003 and Criminal Rev. (P) No. 428/2003 as Ext-10. The Para No. 5 of Page-4 of Ext-9 found to have mentioned by the accused Mrs. Roitong Singphoo that the notice issued to her as well as to the attorney of the accused Firm. The Ext-9 is the certified copy of a document of the court of law. Hence, the plea of nonissuance of notice, non-production of the notice and the non-receipt of notice raised by the Ld. Counsel for the accused is found fall through. 14. Ld. Counsel for the accused submitted that the amount of loan averred by the complainant side is contradictory. It is submitted by the Ld. Counsel for the accused that the complainant and his son jointly instituted the writ petition No. 223/2006 before the Hon ble Gauhati High Court and in the said writ petition Para No.5, it is mentioned that from 12/01/2002 to 07/02/2002 an amount of loan of Rs. 20,00,000/- has been given to the attorney of the accused Firm by way of bank drafts. The certified copy of the said writ petition No. 223/2006 is exhibited as Ext-B. The PW-1 in his evidence deposed that from 12/01/2002 to 07/03/2002, he advanced loan of Rs. 17,42,687/- by way of 18 Nos. Bank drafts to the accused Firm and the attorney of the accused also executed the hand note in acknowledgement of the demand drafts. PW-1 in his evidence also deposed that the all drafts were purchased by him. In cross examination PW-1 stated that out of the total loan amount was of Rs. 20,76,197/- and he had already received an amount of Rs. 3,33,510/- from the attorney of the accused Firm in both cash and cheque. PW-1 in his evidence stated that on 07/04/2003, the attorney of the accused hand over the Ext-1 after settlement of the loan amount at Rs. 20,00,000/- on

8 Page No.8 that day. In cross examination PW-1 admitted that prior to 5/6 months of the bouncing of Ext-1, the loan amount with the accused was settled at Rs. 20,00,000/- at chamber Road, in his shop. In cross examination PW-1 further admitted that in the income tax return he mentioned that Rs. 20,76,197/- is due to the accused Firm. It is found that there is difference in the amount of loan which was alleged as due to the accused Firm and against the amount of loan the cheque in question was issued. 15. PW-1 in his evidence deposed that the all transactions of the loan duly entered in his saving account No lying with the united bank of India, Tinsukia Branch. PW-1 in his evidence also exhibited the statement of his saving account as Ext-5. Ext-5 is the statement of the bank account of the PW-1 for the period of 01/04/2001 to 31/03/2002 and the same was printed or obtained on 12/03/2003. In cross examination PW-1 admitted that Ext-5 is not certified as true copy by the bank authority. PW-1 in cross examination also stated that in Ext-5 his address of Miao is not mentioned. PW-1 in cross examination also admitted that the loan amount paid to the accused is his own money. From the statement of the bank account exhibited as Ext-5 and the period of purchase of draft as deposed by the PW-1, it appears that the transactions made from 12/01/2002 to 07/03/2002. PW-1 in his evidence also exhibited the income tax return of the assessment year as Ext-6. The Ext-6 was for the previous year commenced from 01/04/2001 to 31/03/2002. It appears that in Ext-6, PW-1 shown his cash and bank balance as Rs. 39,125.25, loan receivable from accused Firm as Rs. 20,76, 197/-. The Ext-6 was filled up on 23/03/2003 and submitted on 27/03/2003. In the page No. 10/11 of the Ext-6, it is mentioned that the loan payable by the assesse is amount of Rs.21,56,720/- to Sri. Amit Goyal and 9 others excluding the loan due to M/S. Ashok Leyland Finance, less of Withdrawals, expenses etc. The Ext-7 is found prepared and submitted on 14/03/2005, which is after the institution of this case. PW-1 in his evidence also exhibited the certificate issued by the FCI, Dibrugarh in respect of deposit of demand drafts by him in favour of accused Firm as Ext-8. On a careful perusal of the both Ext-5 and Ext-8 it is found that on 19/01/2002 after withdrawal of an amount of Rs. 1,98,146/- from the bank account No of the complainant, the

9 Page No.9 balance Rs. 32, was available only in the said account. Ext-8 shows that on that day i.e. 19/01/2002, the draft No has been purchased and deposited as mentioned in serial No.2. Ext-5 reflects that the PW-1 further deposited an amount of Rs.1,00,000/- on 22/01/2002 and the total balance stands at Rs. 1,32, It also appears that on 20/01/2002 and 21/01/2002 no money was withdrawn from the said account. In serial No. 3 of the Ext-8, it is found that the both draft No and of Rs. 89,000/- has been purchased from SBI, Tinsukia on 21/01/2002. PW-1 in his evidence claimed that all the transactions of the loan shown in Ext-5 but the transaction of money relating to the drafts mentioned Sl. No.3 of Ext-8 was not found. It further appears from the Ext-5 that on 04/03/2002, an amount of Rs. 1,69,840/- has been withdrawn from the account, on the following day payment of Rs. 24,400/- paid to the Ashok Leyland F. Co. Ltd. and thereafter the balance remained in the account as Rs. 3,692/- Only. Ext-8 reflects that on 04/03/2002 draft No dated 04/03/2002 of Rs. 1,69,500/- submitted to F.C.I. Dibrugarh. Ext-5 further speaks that from 05/03/2002 to 21/03/2002, no transaction took place in the account No In serial No.8 of Ext-8 it is found that on 07/03/2002 three drafts purchased from the United Bank of India, Tinsukia Branch. The purchase of three drafts dated 07/03/2002 for Rs. 1,49,650/- is neither mentioned in Ext-5 nor there was sufficient cash to arrange for payment of purchase of those three drafts. In Ext-6, it is mentioned that the same amount of loan taken by the complainant by way of draft from Sri. Bijay Kumar Agarwal on 07/03/2002 and on the contrary PW-1 admitted that in cross examination that the draft purchased with his own money. On this score accused side relied the judgment of Hon ble Apex Court, reported in AIR 2010 SC 1162, in Moloy Kumar Ganguly Vs. Dr. Sukhma Mukerjee and others, wherein the admissibility and reliability of documents has been discussed. The para No. 49 and 50 of the said decision is reproduced hereunder: 49. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later

10 Page No.10 stage. It is, however, trite that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to crossexamination in a court of law. 50. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken. In a criminal case, subject of course, to the shifting of burden depending upon the statutes and/or the decisions of the superiors courts, the right of an accused is protected in terms of Article 21 of the Constitution of India. The procedure laid in that behalf, therefore, must be strictly complied with. Exhibits 4, 5 and 6, in our opinion, are not admissible in evidence in the criminal trial. 16. The author of the Ext-5 and Ext-8 are not examined as a witness. The evidence of PW-1 found contradictory with the loan transactions for the three drafts dated 07/03/2002 as referred in Ext-8. From the all transaction of the bank account available in Ext-5, it appears that on the same or on the ahead of a single or twice day the amount has been deposited in the account and withdrawn. PW-1 claimed for the loan amount for the period started from 12/01/2002 to 07/03/2002. Before 12/01/2002 and after 07/03/2002, there are also transactions of similar nature found in Ext-5 but PW-1 is silent about those transactions. As per Ext-5, on 01/04/2001 the balance in the account is of Rs. 15,733/- and again on 28/03/2002 the balance is 6,883/-. The Ext-5 just bear seal of

11 Page No.11 the bank without any signature of the bank authority. Ext-8 also found a certificate without any head and tail. No evidence adduced in respect of the execution of the Ext-8 and even the signature appeared as executant of the Ext-8 is not proved. An office of the Govt. or institution not supposed to issue such a nature of documents like Ext-5 and Ext-8 without any office memo or purpose of furnishing the document to anybody. PW-2 in cross examination admitted that they generally do not issue the certified copy of statement of the account to the party as it is a system generated document. From the aforesaid discussion, it is found that the Ext-5 and Ext-8 are not proved within the ambit of law. 17. Ld. Counsel for the accused submitted that the father's name of the complainant is not same and different. Ld. Counsel for the accused further submitted that the father's name appeared in the complaint is Moniram Goel and in the Ext-6 and Ext-7 the name of father of the complainant is Lt. Harpath Rai Goel. Ext-6 and 7 are the income Tax return of the complainant for the assessment year and Ld. Counsel for the accused also submitted that at the time of argument the complainant submitted the driving license, pan card and Bank A/C. Book, where the date of birth and fathers name of the complainant is different. On the contrary, Ld. Counsel for the complainant side submitted that due to mention of different name in the column of father s name cannot itself be presumed that the complainant is a different person. Ld. Counsel for the complainant further side submitted that there is no evidence found in the record that the son of Lt. Harpatrai Goel and the son of Moniram Goel are different person and the hence Ext-6 and Ext-7 are documents of none but the complainant. Ld. Counsel for the complainant side further submitted that the purview of the offence of Sec-138 of N. I. Act is limited to the purpose that whether the cheque was issued towards the discharge of any debt or liability. Ld. Counsel for the complainant side further submitted that the matter is to be considered in this case is that whether the cheque is issued and whether the notice issued before the institution of the complaint. According to Ld. Counsel of the complainant, the different name of the fathers of the complainant in the income tax return or driving licence or pan card is not a disqualification of the complainant in a prosecution U/S. 138 of N.I. Act.

12 Page No Ld. Counsel for the accused also submitted that as per the complaint, the father of the complainant was alive at the time of institution of the complaint i. e. on 25/06/2003 but as per the document Ext-6, the father of the complainant was no more on 23/03/2003, which apparent that the complainant mentioned his father as 'late' in the income tax return though his father was alive, which is beyond the conduct of a human being. The Ext-6 and Ext-7 has been produced in evidence by the Complainant. In cross examination the PW-1 admitted that he unable to say who filled up the Ext-6. PW-1 also admitted in cross examination that he cannot say the name of the tax consultant of him for the period Ld. Counsel for the accused further submitted that title page of Ext- 6 and Ext-7 reveals that it enclosed with 21 documents and Ext-7 enclosed with 5 documents. The prosecution side failed to state about the signatures appeared in the First page of Ext-6 and Ext-7. Amongst the total 21 enclosures of the Ext-6, only eleven pages have been submitted in this case. Similarly, amongst the 5 enclosures only 2 pages submitted in this case. No evidence put forward by the prosecution side to explain the fact about the non-furnishing or non-submitting of the all enclosures of the Ext-6 and Ext-7. It is clear that the complainant side produced the Ext- 6 and Ext-7 in part. The rest part of the both Ext-6 and Ext-7 neither produced nor any reason or explanation made for not production. The role of evidence constrained me to hold that the complainant side failed to produce those parts of Ext-6 and Ext-7 knowing well that it will be unfavourable to them. The document is to be considered as a whole. Where the documents produced in part and withheld partly, it will be amounts to an action behind the back of a party against whom it will be considered. Except the Title page of the Ext-6 and Ext-7, there is no signature or seal of any authority or person. It is also found from the copy of driving licence of the PW-1 submitted during the course of argument that the date of birth of the PW-1 is different as mentioned in Ext-6 and Ext-7. The difference in the name of father of complainant, non-production of the all enclosures of the Ext-6 and Ext-7 cast doubt about its genuineness.

13 Page No Ld. Counsel for the accused further submitted that Sec-138 of N. I. Act is a criminal liability and complainant failed to establish the relation among the attorney of the accused and the proprietor of the accused Firm and no documents also brought on record. PW-1 in cross examination admitted that he cannot say as to how the attorney of the accused Firm conducted the business of the accused Firm. PW-1 in cross examination further admitted that he cannot say whether any power of attorney given to the accused No.2 (Since deceased). It appears that the accused side throughout their defence pleaded that the accused No.2 (Since deceased) was the power of attorney of the accused Firm and the admission is the best piece of evidence against the person who made it. Hence the submission of the Ld. Counsel for the accused side that the prosecution failed to establish the relation of accused No.2 (Since deceased) found fall through. 20. Ld. Counsel for the accused further submitted that the so called cheque in question was never issued towards the discharge of any legal debt or any other liability. PW-1 in his cross examination admitted that the money by way of loan paid to the accused belongs to him but he failed to produce the books of accounts maintained by him during the course of his ordinary business. PW-1 in his cross-examination admitted that he has no registration of money lending business and the interest of Rs. 2,57,330/-received by him is not shown in the Income Tax return. Ld. Counsel further relied the decision of Hon'ble Supreme Court in John K. John Vs. Tom Vargshee and another, reported in (2007) 12 SCC 714. The accused side also relied the decision of the Hon'ble Gauhati High Court, in Ramdeo Ranglal (M/S) Vs. Jain Hardware store and others, reported in 2004 (2) GLT 298, wherein it was held that the suit of the money lender not to be proceeded before a civil court without a valid registration. The accused side also relied with the decision of Hon'ble Andra Pradesh High Court reported in 2004 Cri. L. J (A.P.). in Krishnam Raju Finances Vs. Abida Sultana and others, where the liability was not taken into account as legal liability in absence of Money Lending license. The complaint filed in this case reflects that PW-1 advanced loan of Rs. 17,42,687/- to the accused Firm and about one year after the delivery of loan he agreed to receive an amount of Rs.

14 Page No.14 20,00,000/- including interest of Rs. 2,57,313/-. PW-1 in cross examination admitted that he have money Lending Licence though he received interest of Rs. 2,57,330/-. Sec-7.D of the Assam Money Lenders Act, 1934 prohibited the money lending business unless the lander holds a valid registration. There is also nothing found in the material available on record that the PW-1 was exempted from holding the licence under the said Act. The Sec-7.D of the Assam Money Lenders Act, 1934 is a bar to the proceeding of Civil Suit without money lending certificate. In other words, it can be said that except registration of money lending the recovery of loan is not legally enforceable. There is no doubt about it that the complainant praying for recovery of the loan amount from the accused, which he advanced and the cheque in question given by the accused has been dishonoured. On this score, it is found that the debt or liability against which the cheque in question has been issued is hit by the S-7.D of the Money Lenders Act, As discussed earlier, PW-1 in his evidence in chief stated that on 07/04/2003 the transaction with the attorney of the accused Firm was settled but in cross-examination he stated that before 5/6 months of the bouncing of Ext-1 the amount of loan transaction was settled at Chamber road, Tinsukia in his shop at Rs. 20,00,000/-. Hence the evidence of PW- 1 is found contradictory to the settlement of amount. PW-1 in his crossexamination admitted that the counter foil of cheque No. B/49/ , i.e. Ext-C is his own handwriting, which is dated 10/01/2002 for Rs. 1,00,000/-. The Ext-1 is the cheque No. B/49/ is dated 07/04/2003. Ld. Counsel for the accused submitted that it is clear in this case that the cheque book in question was in the possession of the PW-1, PW-1 used the cheque leaves of cheque book and thereafter return the cheque book to the accused keeping the both the cheque No. B/49/ and B/49/ in his hand and one of which he misused in this case. Ld. Counsel for the accused further submitted that the deceased Pisi Jawlai Singphoo trusted the complainant by way of handing over the signed cheque books and the PW-1 for his illegal gain committed breach of trust. Ld. Counsel for the accused further submitted that the complainant failed to mention the details of bank A/C No as well as the SB A/C of Miao in the Income Tax return and it is also clear

15 Page No.15 that the Ext-6 and Ext-7 were manufactured for just the purpose of this case. Ld. Counsel for the accused further submitted that in the FIR of Miao P.S. Case No. 28/2006, it is categorically stated that cheque book in question was in custody of the PW-1 and the PW-1 and his son committed the offences of forgery, criminal breach of trust etc. Ld. Counsel for the accused further submitted that accused side discharged the initial burden in respect of the custody of the cheque and the complainant side failed to discharge their burden to dislodge the fact by way of examination of Ajay Modi and the son of the complainant, who are present at the time of delivery of the cheque. The non-production of a material witness or the documents relating to the transactions by the complainant side will invite an adverse presumption U/S. 114 (g) of the Indian Evidence Act, The accused side relied the decisions of Hon'ble Supreme Court in Pradip Buragohain Vs. Pranati Phukan, reported in (2010) 11 SCC 108 and Sri. Rabindra Kumar Dey Vs. State of Assam, reported in (1976) 4 SCC Ld. Counsel for the accused further submitted that the issuance of the Ext-1 is also not reliable in normal course of conduct. The cheque No. B/49/ is issued on 23/04/2003, the cheque No. B/49/ is issued on 10/01/2002 and the cheque No. B/49/ is issued on 07/04/2003, which is not possible in normal course of event. Ld. Counsel for the accused further submitted that the both cheque B/49/ and B/49/ bearing the signature of the drawer in the both side of the leaves and both the cheque were account payee cheque and in normal course of business it is only made in case drawer by self. Ld. Counsel for the accused further submitted that the document Ext-C/D/E/F and G shows that the complainant is none but the agent of the accused Firm. PW-1 in his cross examination admitted that Ext- C/D/E/F and G are written by him and Ext-D(1), E(1), F(1) and G(1) are his signature. PW-1 in cross examination admitted that prior to the institution of this case he received payment of Rs. 2,26,341/- from the attorney of the accused Firm and he deposited the said amount to his bank account of SBI, Miao Branch. The production of the statement of bank account of SBI, Miao Branch was material to support the case of complainant side but it was withheld by them. The Ext-16 reflects that on

16 Page No.16 11/04/2002 the Cheque No has been drawn and from 19/04/2002 to 23/05/2002, the cheque Nos to has been transacted in the account of the accused Firm. Ext-16 further reflects that on 19/06/2002, the cheque No transacted in the account of the accused Firm. PW-1 in cross examination admitted the execution of Ext- C, wherein it appears that on 10/01/2002 he wrote the counterfoil of cheque No Ld. Counsel for the complainant side submitted that the missing theory of the cheque book raised by the accused side is not tenable. Ld. Counsel for the complainant highlighted the plea of the accused and the documents submitted by the accused. It is further mentioned by the Ld. Counsel for the complainant in the written argument that in the later dated 23/04/2002, the attorney of the accused Firm informed to the Branch Manager, SBI, Tinsukia that some pages from the cheque book from Serial Nos to might be missing but in the said letter there was an endorsement by the attorney of the accused Firm about the encashment of the Cheque No In the written argument the complainant side further submitted that vide petition dated 24/04/2002, the attorney of the accused Firm stated to the O/C, Miao P.S. that the cheque leaves from to , which was kept in hand of the complainant were found missing. In the written argument the complainant side further stated that on 16/07/2003, the letter addressed to Manager, SBI, Tinsukia that some page of signed blank cheques from No to and from to were missing last year and the said fact was also intimated on 23/04/2002. Ld. Counsel for the complainant side further submitted that in different occasions the accused made different version, the missing theory of the cheque in question lost its existence and the execution of the Cheque is well proved in accordance with the presumptions available in Sec-118 and 139 of N.I. Act. Ld. Counsel for the complainant side placed reliance of the following decisions in support of his submissions: reported in (2002) 6 SCC 426; (a) ICDS Ltd. Vs. Beena Shabeer & another

17 Page No.17 (2002) 2 SCC 642; (b) A.V. Murthy Vs. B.S. Nagabasavanna reported in (c) Anil Sachar and another Vs. Shree Nath Spinners Private Limited & other reported in (2011) 13 SCC 148. (d) K. Bhaskaran Vs. Sankaran Vaidhyan Balan & another reported in (1999) 7 SCC 510. reported in (2001) 8 SCC 548. (e) K.N. Beena Vs. Muniyappan and another SCC 441. (f) Rangappa Vs. Sri. Mohan reported in (2010) 11 (g) M.M.T.C. Ltd. & another Vs. Medchl Chemical and Pharma (P) Ltd. and another reported in (2002) 1 SCC On the contrary, Ld. Counsel for the accused side submitted that the standard of proof of the accused is not as like as of the prosecution and it is under the scale of preponderance of the probabilities. Ld. Counsel for the accused side placed reliance of the following decisions: SCC 441, (a) Rangappa Vs. Sri. Mohan, reported in (2010) 11 (b) Shri. Jose Joseph P. Vs. Smti. Uma Jasrasaria, reported in 2012 (1) DCR 410, (c) Krishna Janardhan Bhat Vs. Dattaraya G. Hegde, reported in (2008) 4 SCC 54, (d) M.S. Narayana Menon alias Mani Vs. State of Kerala and another, reported in (2006) 6 SCC 39,

18 Page No.18 in (2009) 2 SCC 513. (e) Kumar Exports Vs. Sharma Carpets, reported (2008) 1 SCC 258. (f) K. Prakashan Vs. P. K. Surendaran, reported (2007) 5 SCC 264. (g) Kamala S. Vs. Vidhyadharan, reported in 25. I have carefully gone through the decisions and found that the standard of proof by the accused in a proceeding U/S. 138 of N. I. Act is preponderance of probability and not as like of the prosecution. The recent decision of the Hon ble Gauhati High Court, in Indranil Talukder Vs. State of Assam, reported in (2013) 3 Gauhati Law Reports 115, also speaks about the fact. The Para No. 18 of the said decision is hereby reproduced as under: 18. What crystallizes from the aforesaid authorities is that in a complaint under section 138 of the N.I Act the initial presumption that the negotiable instrument must have been issued to discharge a legally enforceable debt or liability in favour of holder of the instrument, in view of section 118(a) and section 139 of the Act, unless the contrary is proved by the accused. It is equally true that the averments made in the complaint petition about the debt or liability of the accused cannot be taken as a gospel truth just because it is accompanied by a cheque, bearing the signature of the accused. In other words, a cheque may be

19 Page No.19 issued by a person under various circumstances and there may be certain developments in between the date of issuance of the cheque and presentation of the same in the bank. In certain cases signed cheques may also land in the possession of some persons, who may misuse the same by way of projecting a case of payment against a debt. This is the reason that the accused persons have been given the scope the rebut the presumption by way of projecting a plausible defence case during the crossexamination of complainant and its witnesses or on the basis of materials on record. It is not mandatory for an accused to stand in the dock to prove its alibi since the standard of proof of the case of the accused is only that of preponderance of probabilities and not that of proof beyond all reasonable doubts. At the same time putting up a fancy story, without any substance, as a defence is not sufficient to discharge the burden that the cheque was not issued against any debt or liability. 26. Ld. Counsel for the accused further submitted that the standard of proof of accused to rebut the presumption is of preponderance of probabilities and the accused side succeeded to rebut the same. Relying with the submission the decision of Ld. Counsel for the accused further submitted that the FIR of Miao P.S. Case No. 28/2006 and the basis of the FIR i.e. G. D. Entry No. 442 of 2002 dated 24/04/2002 may be considered as an evidence of relevant circumstances. The decision of Hon'ble Apex Court reported in 2012 AIAR (Criminal)

20 Page No is relied by the accused side. It is an admitted position in this case that on the basis of information of missing of the cheques the Miao P.S case No. 28/2006 has been registered. There are differences of statement in respect of cheque numbers but it cannot be denied that the cheques were missed. The admission made by PW-1 in his cross-examination reveals that for a considerable time he was working for and behalf of accused Firm. The execution of document by PW-1 does not signifies his status as an agent of the accused Firm but the contents of the Ext-C to G reflects that his position was more than that of an agent who worked for accused Firm. The Ext-1 appeared as issued after issue of cheque leaves of more than 10/11 numbers from the same cheque book also bear with the smell of doubt. The non-production of statement of the bank account lying with SBI, Miao branch and non-mention of the same in the income tax return by the prosecution side reveals that if the same has been produced it will certainly go unfavourable to them. The non-production of same is also appears a hide and sick role played by prosecution towards the issue of cheque and the existence of debt or liability behind its issue. 27. Considering the entire matter discussed above and in reliance to the principles of law laid down in various judgment of different authority, it is found that the accused side successfully hit the presumption laid down in favour of the holder of the cheque in question by preponderance of probability and hence the point No. 1 is decided in favour of the accused. 28. As the point No.1 decided in favour of the accused the guilt of the accused are yet to be proved and hence the point No.2 is left undecided. H. CONCLUSION AND FINDING 29. From the decisions and discussion made above, it can be safely concluded that the prosecution side has failed to prove the allegation of the offence U/S. 138 of N.I. Act against the accused (M/S. R.S. Trading & Co. and Mrs. Roitong Singphoo) and accordingly both the accused are hereby acquitted and set at liberty.

21 Page No The judgment is typed, corrected, signed, sealed, tagged with Case record, pronounced and delivered in the open court on 9 th day of May, Judicial Magistrate First Class. Tinsukia. APPENDIX A. LIST OF WITNESSES OF THE PROSECUTION:- PW-1. Sri. Sajjan Kumar Agarwal. PW-2. Sri. Sudarshan Prasad. PW-3. Sri. Raj Kumar Das. B. LIST OF DOCUMENTS EXHIBITED BY THE PROSECUTION SIDE:- Exhibit-1. The cheque No- B/ , dated Exhibit-2. The Memo dated of the SBI, Tinsukia Branch. Exhibit-3. The letter of intimation. Exhibit-4. The Memo dated of SBI, Tinsukia Branch. Exhibit-5. The statement of Bank account of UBI, Tinsukia Branch. Exhibit-6 & 7. The Income Tax return for the year & Exhibit-8. The certificate, issued by the FCI, Dibrugarh, dated

22 Page No.22 Exhibit-9. The certified copy of the application filed by the accused No.3 before the Hon ble Guwahati High Court. Exhibit-10. The certified copy of Judgment and order dated , passed in Crl. Rev. (P) No- 428/2003. Exhibit-11. The certified copy of order dated , passed in Crl. Petition No. 223/2006. Exhibit-12. The challan of renewal license for the year 2001,2002 and Exhibit-13. The deposit slip dated Exhibit-14. The deposit slip dated Exhibit-15. The letter of authority. Exhibit-16. The certified copy of the statements of Account No C. LIST OF WITNESSES OF THE DEFENCE SIDE:- None. D. LIST OF DOCUMENTS EXHIBITED BY THE DEFENCE SIDE:- Exhibit-A. The signature appeared in over leaf of Ext-1. Exhibit-B. The certified copy of criminal petition No. 223/06. Exhibit-C. The counter foil of cheque No.B/49/ Exhibit-D. The receipt of money with signature of PW-1. Exhibit-E. The receipt of money with signature of PW-1. Exhibit-F. The letter dated signed by PW-1. Exhibit-G. The letter dated signed by PW-1. Exhibit-H. The copy/page of cheque return register of UBI, Tinsukia. Exhibit-I. The summons issued to the Chief Manager, SBI, Tinsukia. E. LIST OF WITNESS EXAMINED BY THE COURT:- None. F. LIST OF DOCUMENT EXHIBITED BY COURT:- None.

23 Page No.23 Judicial Magistrate First Class, Tinsukia. *****