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TMI Blog2011 (3) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... not applicable - petition allowed and criminal complaint under section 138/142 of the Act titled Central Excise v. Ms. Veena Ahuja, quashed - CRL. M.C. NO. 1430/2010 - - - Dated:- 23-3-2011 - Coram: HON BLE MR. JUSTICE A.K. PATHAK Mr. S.K. Sharma, Adv. For the Petitioner Mr. Satish Aggarwala, Adv. For the Respondent JUDGMENT A.K. Pathak, J. (Oral) 1. By way of present petition under section 482 of the Code of Criminal Procedure petitioner seeks quashing of complaint case under section 138/142 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as the Act ) filed by the respondent, before the Additional Chief Metropolitan Magistrate, New Delhi (ACMM). 2. Respondent has alleged in the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khs and 135658 dated 13th May, 2005 for Rs. 20 lakhs both drawn on State Bank of India, Mansarover Garden Branch, New Delhi. These cheques were taken by the officials of the respondent without passing any assessment order or quantifying the amount towards the excise duty. As late as on 2nd November, 2005, a show cause -cum-demand notice was issued to the firm to the effect that as to why Central Excise duty amounting to Rs. 46,12,318/- be not demanded under section 11 A(i) of the Central Excise Act, 1944. It was further stated that in case no cause was shown against the action proposed to be taken, within 30 days, the case will be decided on merits without any further reference to them. Excise duty was quantified only on 2nd November, 2005. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course, of the cheque as the case may be, makes a demand for the payment of the said amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not necessary for the accused to rebut this presumption only by leading positive evidence, that is, by stepping into the witness box or producing any other witness in his defence. This presumption can be rebutted even from the material already brought on record. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. In other words, complainant has to prove its case beyond the shadow of reasonable doubt; whereas accused can prove his defence on the basis of "preponderance of probability". Inference can be drawn from the material brought on record even if the accused fails to lead any positive evidence. Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde AIR 2008 SC 1325, has h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18/- towards the excise duty. The liability of the firm to pay this amount had not attainted finality even on 2nd November, 2005 as 30 days time was granted to the firm to produce all the evidence on which it intended to rely upon in their defence at the time of showing cause. It would be relevant to refer to paragraphs 23, 26 and 27 of the show-cause notice at this stage which read as under:- "23. Now, therefore, M/s. ABC are called upon to show cause to the Addl. Commissioner, Central Excise, Delhi-II, C.R. Bldg., New Delhi within 30 days of the receipt of this notice as to why:- (1) Central Excise duty of Rs. 45,42,326/- @ 16% and education cess of Rs. 70,072/- @ 2% of the duty (total duty Rs. 46,12,318/-) involved on the excisable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the adjudicating authority at the time of hearing, the case will be decided on merits, on the basis of facts already available on record, without any further reference to them." 9. A perusal of show-cause notice clearly indicates that even on 2nd November, 2005 the liability of the petitioner to pay Rs. 46,12,318/- towards the excise duty had not attainted finality. 10. Para 8 of the reply filed by the respondent on this count also supports this fact. For the sake of ready reference para 8 of the reply is reproduced hereunder: - "With reference to para No.4 (n), it is submitted that the case was on remand back, adjudicated by the Additional Commissioner, Delhi-II vide Order-in Original No. 56/2008-09 dated 30.1.2009, confirming t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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