Sudip Ahluwalia, J. - (1.) THIS revisional application is directed against the Judgment and Order dated 05.03.2013, passed by the Ld. Additional Sessions Judge, Fast Track, 5th Court, City Sessions Court, Calcutta in Criminal Appeal No. 142 of 2011, arising from the Judgment and order dated 03.09.2011 passed by learned Additional Chief Metropolitan Magistrate, Calcutta in case No. C -366/2007 under Section 138 of the Negotiable Instrument Act, 1881. The petitioner was Convicted and Sentenced to pay a fine of Rs. 10,000/ - in default, to suffer simple imprisonment for one month. He was also directed to pay an amount of Rs. 5,50,000/ - to the complainant as compensation.
(2.) THE background of the matter is that the Respondent No. 1 herein as complainant had filed the complaint U/s 138 of the N.I. Act against the appellant/accused contending inter alia that the accused in discharge of his existing legal debt/liability arising out of the loan granted to him had issued five Account Payees cheques being cheque Nos. 475469 dated 20.03.07, 475470 dated 31.03.07, 478471 dated 21.03.07, 475472 dated 22.03.07 and 475473 dated 22.03.07 each amounting to Rs. 1,00,000/ -, drawn on Indian Bank, Strand Road Branch, Kolkata -1 in favour of the respondent. Those five cheques on being presented within the validity period were dishonoured with the remarks "funds insufficient" and were returned with the returning memos dated 21.03.07 and 28.03.07. Following this the legal demand notice was issued to the accused on 03.04.07, which was purportedly served upon him on 05.04.07. Despite receipt of the same, no payment of the cheque amounts was made, on account of which the complaint was filed. The Ld. Addl. Chief Metropolitan Magistrate, Calcutta was pleased to take cognizance of the same and after examining the complainant, issued process U/s 138 of the N.I. Act. Thereafter, he examined the accused U/s 251 Cr.P.C. In the trial the complainant had deposed as the sole witness in support of his case. The accused/appellant was then examined U/s 313 Cr.P.C wherein he stated that he was 'falsely implicated' as actually he had no liability or debt at all. He then examined himself as DW and exhibited certain documents, and represented that his case is one of "complete innocence and false implication". The Ld. Addl. Chief Metropolitan Magistrate, Calcutta finally disposed off the complaint by passing his Judgment and order dated 03.09.2011, in which the accused was found guilty of the offence punishable U/s 138 of the N.I. Act, and sentenced to pay a fine of Rs. 10,000/ -, in default, to suffer simple imprisonment for one month. He was also directed to pay an amount of Rs. 5,50,000/ - to the respondent No. 1 as compensation.
(3.) THE Ld. Appellate Court however dismissed the appeal preferred by the Petitioner/Accused with the following observations - "I find from the L.C.R. that all the five cheques of Rs. 1 Lakh each bears the signature of Sri Tapan Kumar Srimani being the accused/appellant of this case and those were issued in favour of Sambhu Nath Kundu being the complainant/respondent No. 1. The banker's memo goes to show that those cheques on being presented within the validity period were dishonoured due to insufficient fund. Although, it is the claim of the accused that all those cheques were blank and given as security of the repayment, although no payment was actually made. This Court fails to understand, even if, this is taken to be granted for the sake of argument that no loan was actually given to the accused/appellant then what prevented the accused/appellant from giving instruction to his banker regarding 'stop payment' or to show on the either that despite having sufficient fund to honour the cheques he was compelled for the aforesaid reason to give instruction of stop -payment to his banker to those cheques. It is further curious to note that even after issuing the notice (Ext. A) by the Ld. Advocate for the accused/appellant where from it appears that in pursuance of the loan amount the accused had issued few undated, unfilled cheques in favour of the complainant/respondent No. 1 then what prompted him to keep mum having received no reply to the said legal notice within the desired time. He even could have taken resort to the appropriate forum for taking measures against such activity of the complainant/respondent No. 1, if any. So these queries do not have any satisfactory explanation. It further appears that the accused/appellant has taken different stand at different stage of the proceedings before the Ld. Court below. The lower Court record reveals that the accused in his oral evidence stated that he had got Rs. 2 lakhs from the complainant which has already been re -paid by way of installments. But there remains doubt as to the dates of such re -payment of Rs. 2 lakhs. He also failed to bring before the Court any scrap of paper to substantiate the said re -payment of Rs. 2 Lakhs. I am not unmindful to the settled principle, in view of the decision of the Hon'ble Apex Court that the comparing to the case of the complainant U/S 138 of the N.I Act rebuttal of the prosecution case by the accused is a mere preponderance of probabilities. Still I hold that what he has stated before the Court during the evidence should have been proved by the accused to shift the burden upon the complainant to prove his case. Needless to mention that the accused/appellant has miserably been failed to do the same. In an answer to a question put to him by the Court U/s 313 Cr.P.C with regard to issuance of five cheques he only kept mum by adopting the plea of innocence whereas he had the ample scope to answer the said question properly to deny the existence of his liability. It is well settled legal principle that the presumption U/s 118 and 139 of the N.I. Act is a rebuttable presumption and the burden lies on the accused to prove that he had no liability/debt on the date of issue of the cheque. It is also a settled principle of law that to bring home an offence under any of the penal provision, it is essential to prove the case beyond the reasonable doubt and the ingredients of the offence should be satisfied. Therefore, the accused has failed to rebut the prosecution case that he had no liability or debt recoverable on the date of issue of the cheque. Therefore, presumption U/s 118 of the Indian Evidence Act should go in favour of the complainant. Therefore, the complainant/respondent No. 1 has established that the said impugned five cheques were issued by the accused in favour of the complainant in discharge of existing liability or debt.";