9911796707
TMI Blog2019 (12) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... back whereupon, 23, 76,000/- remained due for which, on persistent demand, accused issued a Cheque on 18.06.2014 which he deposited in his account running in the Axis Bank, Danapur which was dishonoured as, the bank had reported that signature is mismatching. From the record, it is evident that nothing has been adduced in defence. On 27.11.2017, while argument was going on, a petition was filed on behalf of defence that the cheque be sent to a hand-writing expert in order to examine the signature over the relevant cheque which the learned lower court vide order dated 10.01.2018 rejected the same and, Respondent No.2/accused had not challenged the same. The appellant is found guilty for an offence punishable under Section 138 of the NI Act and hence is directed to undergo RI for one year as well as fined twice of the amount of cheque, in default thereof, to undergo SI for three months - Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... f instant appeal. 5. It is further evident from the record of the appellate court that before issuance of summon, Respondent No. 2 put his appearance whereupon, the matter has been heard at length on its merit at the stage of admission itself at the request of the parties, and is finally adjudicated upon. 6. There happens to be categorical argument at the end of the learned counsel for the appellant that concept of law, whereupon, the learned lower court had acquitted the Respondent no. 2, is not at all correct proposition of law as well as happens to be in utter violation of the principle laid down by the Hon'ble Apex Court and so, the same happens to be illegal, erroneous, illegal, perfunctory, whereupon, is fit to be set aside. 7. It has also been submitted that learned lower court failed to appreciate that there happens to be no cogent, reasonable explanation at the end of Respondent No. 2/accused that cheque no. 204735 was not issued in his favour by the concerned bank, and in likewise manner, his signature over the same. In the aforesaid background, presumption would be against the Respondent no.2/accused in accordance of Section 189 CrPC, though rebuttable. From the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereupon, one could infer that the complainant/appellant was in possession of such a huge amount, there happens to be no document, suggesting money having been borrowed by the respondent/accused, there happens to be no evidence relating to part payment i.e., ₹ 1,24,000/-, then in that event, even presence of cheque would not justify the prosecution and that happens to be the reason behind presence of inconsistency in the evidence of complainant, PW-3 on every material aspect. 11. It has further been urged that there is no presumption relating to issuance of notice and on account thereof, the complainant is under obligation to satisfy that the notice having been issued against the accused was duly served upon. So far instant case is concerned, as is evident from the record, the complainant/appellant failed to substantiate by cogent, reliable evidence with regard to service of notice upon Respondent No.2/accused. Consequent thereupon, the finding so recorded by the learned lower court does not warrant interference. 12. Also submitted that statement recorded under Section 313 Cr.PC. has not been properly framed. Be that as it may, answered so furnished by the Respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 15. In Vijay Mohan Singh v. State of Karnataka reported in 2019 CrLJ 3246, it has been held as follows:- "11. An identical question came to be considered before this Court in the case of Umedbhai Jadavbhai (supra). In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial Court on re-appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial Court while acquitting the Accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: "10. Once the appeal was rightly entertained against the order of acquittal, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case. 11.2 In the case of K. Ramakrishnan Unnjithan (supra), after observing that though there is some substance in the grievance of the learned Counsel appearing on behalf of the Accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. The State : 1952 Cri LJ 331; Wilayat Khan v. State of Uttar Pradesh : AIR 1953 SC 122. In our opinion, there is no substance in the contention raised on behalf of the Appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions. 11.4 In the case of K. Gopal Reddy (supra), this Court has observed that where the trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule. 12. Considering the aforesaid decisions, it emerges that even in the case where the High Court in an appeal against the order of acquittal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; ... 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong.... 10. It has been contended on behalf of the appellant-accused that the presumption mandated by Section 139 of the Act does not extend to the existence of a legally enforceable debt or liability and that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different. ... 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. 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 he relies. (emphasis supplied) Specifically in relation to the nature of the presumption contemplated by Section 139 of the Act, it was observed; "45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act. 23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man. (emphasis supplied) 12. The respondent-claimant has also referred to the decision reported as Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and Ors. : 2008 (8) SCALE 680, wherein it was observed: "Under Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist. (emphasis supplied) Interestingly, the very same extract has also been approvingly cited in Krishna Janardhan Bhat (supra). 13. With regard to the facts in the present case, we can also refer to the following observations in M.M.T.C. Ltd. and Anr. v. Medchl Chemicals & Pharma (P) Ltd. : (2002) 1 SCC 234 (Para. 19): " ...The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the 'stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." 18. From the perusal of the same, it is crystal clear that the principle so enunciated in Krishna Janardan Bhat v. Dattatraya G. Hegde: (2008) 4 SCC 54 has not been approved. The same view has again been re-affirmed by the Hon'ble Apex Court in Laxmi Dyechem v. State of Gujarat & Ors reported in (2012)13 SCC 375, in Kishan Rao v. Shankargouda reported in 2018 CrLJ 3613, in Rohitbhai Jivanlal Patel v. State of Gujarat reported in 2019 CrLJ 2400, as well as in Bir Singh v. Mukesh Kumar reported in (2019) 4 SCC 197. 19. The matter has further been considered by the three judges Bench in MSR Leathers vs. S. Palaniappan and Ors. reported in (2013) 1 SCC 177 wherein the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque. 13. Section 142 of the Negotiable Instruments Act governs taking of cognizance of the offence and starts with a non-obstante clause. It provides that no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, by the holder in due course and such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. In terms of Sub-section (c) to Section 142, no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class is competent to try any offence punishable under Section 138. 14. A careful reading of the above provisions makes it manifest that a complaint under Section 138 can be filed only after cause of action to do so has accrued in terms of clause (c) of proviso to Section 138 which, as noticed earlier, happens no sooner than when the drawer of the cheque fails to make the payment of the cheque amount to the payee or the hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence is not a cognizable one. It follows that the complainant may, even when he has the immediate right to institute criminal proceedings against the drawer of the cheque, either at the request of the holder/payee of the cheque or on his own volition, refrain from instituting the proceedings based on the cause of action that has accrued to him. Such a decision to defer prosecution may be impelled by several considerations but more importantly it may be induced by an assurance which the drawer extends to the holder of the cheque that given some time the payment covered by the cheques would be arranged, in the process rendering a time consuming and generally expensive legal recourse unnecessary. It may also be induced by a belief that a fresh presentation of the cheque may result in encashment for a variety of reasons including the vicissitudes of trade and business dealings where financial accommodation given by the parties to each other is not an unknown phenomenon. Suffice it to say that there is nothing in the provisions of the Act that forbids the holder/payee of the cheque to demand by service of a fresh notice under clause (b) of proviso to Section 138 of the Act, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its power invalid." 30. Reference may also be made to the decision of this Court in Deputy Custodian, Evacuee Property v. Official Receiver : AIR 1965 SC 951), where this Court observed: "8...The rules of grammar may suggest that when the section says that the property is evacuee property, it prima facie indicates that the property should bear that character at the time when the opinion is formed. But Mr. Ganapathy Iyer for the appellants has strenuously contended that the construction of s. 7(1) should not be based solely or primarily on the mechanical application of the rules of grammar. He urges that the construction for which Mr. Pathak contents and which, in substance, has been accepted by the High Court, would lead to very anomalous results; and his arguments is that it is open to the Court to take into account the obvious aim and object of the statutory provision when attempting the task of construing its words. If it appears that the obvious aim and object of the statutory provisions would be frustrated by accepting the literal construction suggested by the respondent, then it may be open to the Court to enquire whether an alternative construction which would serve the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for presumption in favour of holder. Section 139 lays down: 139. Presumption in favour of holder.--It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability." 10. The complainant being holder of cheque and the signature on the cheque having not been denied by the Accused, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption Under Section 139 is a rebuttable presumption. Before we refer to judgments of this Court considering Sections 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an Accused especially in a case where some statutory presumption regarding guilt of the Accused has to be drawn. A Three-Judge Bench of this Court in Kali Ram v. State of Himachal Pradesh, : (1973) 2 SCC 808 laid down following: 23. ...One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an Accused is presumed to be innocent unless that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the Plaintiff is entitled under law to rely upon all the evidence led in the case including that of the Plaintiff as well. In case, where the Defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the Plaintiff would invariably be held entitled to the benefit of presumption arising Under Section 118(a) in his favour. The court may not insist upon the Defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the Plaintiff. To disprove the presumption, the Defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. 14. This Court held that what is needed is to raise a probable defence, for which it is not necessary for the Accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon. Dealing with standard of proof, following was observed in paragraph No. 32: 32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. 15. In Krishna Janardhan Bhat v. DattatrayaG. Hegde, : (2008) 4 SCC 54, this Court held that an Accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. Following was laid down in Paragraph No. 32: 32. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 20. ........................The Accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the Accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the Accused. Something which is probable has to be brought on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the Accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. 20. Elaborating further, this Court held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the Defendant-Accused and the Defendant-Accused cannot be expected to discharge an unduly high standard of proof. In paragraph Nos. 27 and 28, following was laid down: 27. Section 139 of the Act is an example of a reverse onus Clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the evidence on record with regard to which no contrary view has also been expressed by the High Court. 22. Another judgment which needs to be looked into is Rangappa v. Sri Mohan : (2010) 11 SCC 441. A three-Judge Bench of this Court had occasion to examine the presumption Under Section 139 of the 1881 Act. This Court in the aforesaid case has held that in the event the Accused is able to raise a probable defence which creates doubt with regard to the existence of a debt or liability, the presumption may fail. Following was laid down in paras 26 and 27: (SCC pp. 453-54) 26. In light of these extracts, we are in agreement with the Respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat, may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the Accused to raise a defence wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, 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 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. 21. In M/s. Shree Daneshwari Traders v. Sanjay Jain & Anr. reported in AIR 2019 SC 4003, It has been held as follows:- "16. Under Section 138 of the Negotiable Instruments Act, once the cheque is issued by the drawer, a presumption Under Section 139 of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as the complainant discharges the burden to prove that the instrument, say a note, was executed by the Accused, the Rules of presumptions Under Sections 118 and 139 of the Act help him shift the burden on the Accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the Accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the discharge of any debt or other liability in whole or in part. The courts below disbelieved the evidence of the complainant on the ground that there are no averment in the complaint that the commodities were sold for cash and that the rice bags were sold on credit and the cheques were issued for the goods sold on credit. Though the complaint contains no specific averments that the cheques were issued for the purchase made on credit, in his evidence, PW-1 clearly stated that the cheques were issued for the commodities purchased on credit. The courts below erred in brushing aside the evidence of PW-1 on the ground that there were no averment in the complaint as to the purchases made by cash and purchase. The courts below also erred in not raising the statutory presumption Under Section 139 of the Act that the complainant received the cheques to discharge the debt or other liability in whole or in part. 19. It is for the Respondent-Accused to adduce evidence to prove that the cheques were not supported by consideration and that there was no debt or liability to be discharged by him. The receipts-Ex.-22/C (colly) relied upon by the Respondent-Accused do not create doubt about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of Section 138 stands complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption." 23. In the background of, the settled principle of law as enunciated by the Apex Court referred hereinabove, now the facts of the case is to be recapitulated in order to properly appreciate the same in consonance with the finding so recorded by the learned lower court. From the record, it is evident that altogether three PWs have been examined who are PW-1, Dilip Kumar, PW-2, Binod Kumar and PW-3, Deepak Kumar. Side by side, prosecution has also exhibited Cheque, Ext-1, copy of Advocate notice, Ext-2, Registered Postal receipt, Ext-3, complaint petition, Ext-4. Nothing has been adduced on behalf of defence/Respondent No.2 24. The evidence of PWs-1 and 2 are not at all relevant because of the fact that they are not the persons anyway concerned with the affairs, although, came to the side of the complainant, PW-3. PW-3, during course of examination-in-chief has stated that he gave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide order dated 10.01.2018 rejected the same and, Respondent No.2/accused had not challenged the same. 26. It is also to be taken into consideration that during course of cross-examination, the Respondent No. 2/accused had not challenged the cheque leaf bearing no. 204735 was not issued by the Bank in his favour nor there happens to be any disclosure at the end of the Respondent No.2/Accused as to how the appellant/complainant succeeded in procuring the same and further, steps having taken at the end of Respondent No. 2/Accused with regard thereto. That means to say, when the conduct of the Respondent No. 2/Accused is taken together with the suggestion having given to the PW-3/appellant/complainant, it is apparent that Respondent No. 2/accused had not denied issuance of cheque. That means to say, there happens to be admission by way of suggestion and the same, has been accepted by the Apex Court in Tarun Bora @ Alok Hazarika v. State of Assam reported in 2002 CrLJ 4076 , It has been held as follows:- "16. In cross-examination the witness stated as under: "Accused-Tarun Bora did not blind my eyes nor he assaulted me." 17. This part of cross-examination is suggestive of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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