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TMI Blog2019 (9) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... that he is working as a Carpenter in MES at Jutogh and drawing salary of ₹ 33,000/- per month, remained totally un-shattered, because at no point of time, suggestion, if any, qua aforesaid aspect of the matter came to be put to the complainant. Hon'ble Apex Court in Rohitbhai Jivanlal Patel vs. State of Gujarat Anr , [ 2019 (3) TMI 769 - SUPREME COURT ], has held that in view of statutory presumptions as contemplated under Ss.118 and 139 of the Act, onus is shifted upon the accused and unless accused discharges said onus by leading evidence on record as to show preponderance of probabilities tilting in his favour, complainant s case cannot be disbelieved for want of evidence regarding source of funds for advancing as loan to the accused. In the case at hand, accused has not been able to rebut the statutory presumption under Ss.118 and 139 of the Act in favour of holder of cheque i.e. complainant and as such, there appears to be no illegality or infirmity in the judgments/order of conviction and sentence passed by learned Courts below - All the ingredients of S.138 of the Act stand duly proved in the case at hand, as such, this Court finds no occasion to inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque on its presentation was dishonoured on account of insufficient funds in the account of the accused, vide memo dated 26.7.2014 (Ext. CW-1/B) After having received aforesaid memo, complainant served accused with legal notice (Ext. CW-1/C) calling upon her to make payment of ₹ 1,50,000/- within the stipulated period but since the accused failed to make good the payment within the period prescribed in the legal notice, complainant was compelled to initiate proceedings under S.138 of the Act. 3. Learned Judicial Magistrate 1st Class, vide its judgment dated 8.5.2017, dismissed the complaint and acquitted the accused. Complainant, being aggrieved and dissatisfied with the aforesaid judgment of acquittal recorded by learned Court below, approached this Court by way of Criminal Appeal No. 295/2017, on the following grounds: (i) Section 139 of the NI Act does not lay down any presumption with respect to existence of the legally enforceable debt and presumption is merely in favour o the holder of the cheque and the complainant has to establish the existence of legally enforceable debt against the accused. (ii) The friends from w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. This Court, while setting aside order of acquittal also clarified that it has not gone into the relative merits of the case and Court below would try to decide the case afresh strictly as per its facts and in accordance with law. Close scrutiny of the material available on record vis- -vis reasoning assigned in the judgment of conviction recorded by learned Court below, clearly suggests that learned trial Magistrate proceeded to decide the matter afresh on the basis of material available on record as well as law on the point. As per learned counsel for the accused, since learned trial Magistrate had already applied its mind and had passed judgment of acquittal, while deciding the matter afresh, it ought not have re-appreciated the evidence, especially on the aspect of source of money allegedly paid by the complainant to the accused. However, this Court is not impressed with the aforesaid argument advanced by learned counsel for the accused, for the reason that after remanding of the case back, learned trial Magistrate was well within its jurisdiction to decide the matter afresh, taking note of the evidence, be it ocular or documentary, adduced by the respective p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely Stephen Deen. This witness also admitted that signature over cheque is in different ink and date is in different ink. He categorically denied the suggestion put to him that a blank cheque was given to him. 10. Accused, Geeta Devi, while deposing as DW-1, stated that the complainant, who is related to her, stood her surety in another case and obtained cheque as security in that case. She stated that the case Harbhajan Vs. Geeta was compromised by her and till date she is paying ₹ 5,000/- from her salary. She tendered copy of statement of Bank, Ext. DW-1/A and copy of letter dated 4.6.2016, Ext. DW-1/B. 11. Accused deposed that the complainant had a quarrel with her husband and on account of that, he filled in the cheque and presented the same for encashment. Most importantly, this witness admitted that she had received the demand notice Ext. CW-1/C. In her cross-examination, she admitted that she is drawing salary of ₹ 48,000/- and her carry home salary is ₹ 27,000-28,000/-. Accused also admitted that she is facing 2-3 similar cases in other courts. 12. Though, in the case at hand, accused ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convincing evidence but, in the case at hand, accused even during her statement under S.313 CrPC, has not denied the factum with regard to issuance of cheque but has taken a plea that the cheque was given to the complainant as security. Mere statement of the accused is not sufficient to prove that the cheque in question was issued as a security, rather the accused, with a view to rebut the presumption available in favour of the holder, is/was under obligation to prove by leading positive evidence that the cheque in question was issued as a security. Interestingly, in the case at hand, legal notice issued by complainant was never replied by the accused. 15. Accused, with a view to substantiate her aforesaid plea, stated that since there was a dispute between the complainant and her husband, complainant, after filling in cheque given to him as a security, presented the same to the Bank concerned but, interestingly, the accused failed to examine her husband qua aforesaid aspect of the matter. Since there is no dispute, if any, with regard to issuance of cheque and accused failed to prove that the cheque was not issued in discharge of lawful liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant. 25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 28 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come in the witness box to support his defence. 24. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. 19. Hon'ble Apex Court, in the case before their lordships, while applying principle of law as discussed herein above, observed that when signatures on cheque stand a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 and 139 of the Act, onus is shifted upon the accused and unless accused discharges said onus by leading evidence on record as to show preponderance of probabilities tilting in his favour, complainant s case cannot be disbelieved for want of evidence regarding source of funds for advancing as loan to the accused. Hon'ble Apex Court in the judgment (supra) has held as under: 17. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the determination of real questions involved in the matter. May be, if the total amount of cheques exceeded the alleged amount of loan, a slender doubt might have arisen, but, in the present matter, the total amount of 7 cheques is lesser than the amount of loan. Significantly, the specific amount of loan (to the tune of ₹ 22,50,000/-) was distinctly stated by the accused-appellant in the aforesaid acknowledgment dated 21.03.2017. 22. In the case at hand, accused has not been able to rebut the statutory presumption under Ss.118 and 139 of the Act in favour of holder of cheque i.e. complainant and as such, there appears to be no illegality or infirmity in the judgments/order of conviction and sentence passed by learned Courts below. All the ingredients of S.138 of the Act stand duly proved in the case at hand, as such, this Court finds no occasion to interfere with the judgments/order of conviction and sentence recorded by learned Courts below, as such, same deserve to be upheld. 23. In view of above, the petition at hand is dismissed being devoid of merit. Judgments passed by learned Courts below are upheld. Accused is directed to surre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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