9911796707
TMI Blog2019 (7) TMI 1821X X X X Extracts X X X X X X X X Extracts X X X X ..... the same has been issued for discharge of any debt or liability. Thus, even if presumption is not rebutted, Act, in order to attract section 138 of the debt has to be a legally enforceable debt as said is clear from the explanation to section 138 which provides that for the purposes of the said section the debt or other liability means a legally enforceable debt or other liability. Though it is observed in para 15 that the same rule with the same rigor cannot be applied in a matter relating to the offences under Sec. 138 of the Negotiable Instruments Act, particularly where a presumption is drawn that the holder has received a cheque for the discharge, wholly or in part, of any debt or liability. However, it is further observed that the accused is entitled to bring on record the relevant material to rebut the presumption and to show that preponderance of probabilities are in favour of his defence then the Appellate Court is certainly entitled to examine the evidence in order to find out if preponderance indeed leans in favour of the accused - In the case at hand, the respondent/accused has succeeded in bringing on record probable defences and has rebutted the presumption; the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 4 . A Legal Notice through Registered Post with acknowledgment due came to be issued to the respondent/accused on 18.1.2012 calling upon him to pay the amount of ' 4,00,000/- within fifteen days from the date of receipt of the Notice. 5 . Despite due service of the Notice upon the accused on 19.1.2012, the respondent/accused neither paid the amount nor replied the said Notice. The complainant, therefore, filed a complaint under Sec. 138 of the Negotiable Instruments Act. 6 . The complainant filed an Affidavit in lieu of his evidence before the Judicial Magistrate First Class and has also examined Dinesh Komarpant in support of his case. 7. The respondent/accused did not step into the witness box, however he examined one Ajit Pawaskar, who works as an Under Secretary (GAD-II) in the Secretariate, Porvorim, in order to prove that the respondent was in the Office on 12.11.2010 on the basis of a biometric device which recognizes thumb impression of the employees. 8. The defence of the respondent/accused in his statement under Sec. 313 of Cr.P.C. is that the complainant had never advanced loan of ' 4,00,000/- and he had never visited Canacona Goa on 12.11.2010. 9 . It is spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarge the burden of proof that it was a legally enforceable debt or liability. 2 The cash of ' 4,00,000/- was unaccounted, in the sense, no Income Tax Returns have been tendered by the complainant/appellant. 3 The execution of Exhibit 19 which is purported to be a receipt of the acknowledgement of money by the respondent/accused has not been established. 4 The Magistrate disbelieved that on 12.11.2010 between 3.30 p.m. to 4.30 p.m. the complainant/appellant had advanced the amount to the accused at Palolem Guest House, Canacona, as it was shown that the respondent/accused was in his Office at the Secretariate, Porvorim, on the basis of bio-metric device. 13 . Shri. Bhobe, the Learned Counsel appearing for the appellant/complainant reiterated the facts by contending that there is no dispute as regards advancement of loan of ' 4,00,000/- to the respondent/accused on 12.11.2010 in the presence of Pw2 Dinesh. It is also not disputed that the respondent/accused had issued a cheque dated 7.1.2012 from his account with the Banker and his signature over it. It is contended by Mr. Bhobe that the complainant has duly proved the acknowledgement of Receipt Exhibit 19 and therefore i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cheque (Exh. 16) dated 7.1.2012 was issued from the account of the respondent/accused with his Banker. b. The Cheque (Exh. 16) bears the signature of the respondent. c. The Cheque (Exh. 16) was returned unpaid for the reason Not Arranged For , vide Bank Memo (Exh. 17). d. Due service of statutory Notice dated 18.1.2012 upon the respondent on 19.1.2012 (Exh. 18). 18. In his Affidavit in lieu of examination-in-chief the appellant/complainant deposed that the respondent/accused was introduced to him by Pw2 Dinesh somewhere in the month of August, 2010. Since the respondent was in financial need to carry out repairs of his house, he approached the appellant/complainant somewhere in the first week of November, 2010, and requested him to lend an amount of ' 4,00,000/-. The respondent/accused assured the complainant/appellant that he will repay the amount within one year. The complainant/appellant, therefore, keeping trust on the accused and the assurance given by him lent ' 4,00,000/- on 12.11.2010 in the presence of Pw2 Dinesh. 19. Since the respondent/accused did not repay the amount despite demand, a Cheque dated 7.1.2012 (Exhibit 16) was issued by the respondent. The Affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the complainant/appellant to the accused/respondent in the month of November, 2010, at Palolem Guest House. It further reveals that at the request of the complainant, Pw2 Dinesh bought a stamp paper and obtained a receipt from the respondent/accused. 23. From the evidence of these two witnesses, it is quite clear and has been proved that an amount of ' 4,00,000/- was lent/paid by the complainant/appellant to the accused/respondent in the presence of Pw2 Dinesh on 12.11.2010. 24. The Account Payee Cheque Exhibit 16 dated 7.1.2012 indicates the signature of the respondent which he admits. Exhibit 19 is also a document on record which is on a stamp paper of ' 100/- indicating that an amount of ' 4,00,000/- was received by the accused from the complainant for his house repairs. 25. From the oral evidence of the complainant and the documents on record it transpires that an amount of ' 4,00,000/- was paid by the complainant to the accused and it was duly acknowledged by the accused by executing Exhibit 19. From the evidence of the appellant/complainant and of Pw2 Dinesh it has been established that the Cheque Exhibit 16 was dishonoured for want of sufficient funds in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equirement of Section 138 was that there has to be a legally enforceable debt. The Apex Court referred to the provisions of Section 271-D of the Income Tax Act, 1961 which reads thus: 271-D. Penalty for failure to comply with the provisions of section 269-SS.-(1) If a person takes or accepts any loan or deposit in contravention of the provisions of section 269-SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted. (2) any penalty imposable under sub-section (1) shall be imposed by the Joint Commissioner. In paragraph 29 of the decision, the Apex Court referred to the ingredients of the offence under section 138. Paragraph 29 reads thus: 29. Section 138 of the Act has three ingredients viz.: (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. In paragraphs 30 and 31 the Apex Court dealt with the presumption under section 139 of the said Act. Paragraphs 30 and 31 read thus: 30. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be drawn even by reference to circumstances. In paragraph 44 the Apex Court observed thus: The presumption of innocence is a human right (See Narendra Singh v. State of M.P., Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Rajesh Ranjan Yadav v. CBI.) Rights Article 6(2) of the European Convention on Human provides: Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused's rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh was lying in his hands, there was no need to withdraw any amount from the Bank. He admits that he had not shown the present transaction in his Income Tax Returns for the year 2010-2012. 28. As observed by this Court in case of Sanjay Mishra (supra) that merely because amount advanced is not shown in the Income Tax Returns, in every case, one cannot jump to the conclusion that the presumption under Sec. 139 of the said Act, stands rebutted. Looking to the business of shack of the complainant it could not have been difficult for him to advance a cash of ' 4,00,000/-. 29. It is held by the Hon'ble Supreme Court in case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, that as per Section 271-D of the Income Tax Act, if a person takes or accepts any loan or deposit in contravention of provisions of Section 269- SS, he shall be liable to pay, by way of penalty, a sum equal to an amount of loan or deposit so taken or accepted. Thus, only on that basis it cannot be said that the presumption in favour of the appellant/complainant has been rebutted. 3 0 . Turning to the document Exhibit 19 alleged to have been executed by the respondent/accused on 12.11.2010 at Palolem Guest Hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the debt has to be a legally enforceable debt as is clear from the explanation to Sec. 138, which provides that for the purposes of the said Section the debt or other liability means a legally enforceable debt or other liability. 36. In the cross-examination, it has been brought on record that the respondent was introduced with the complainant in the month of August 2010, and within a span of three months the complainant lent ' 4,00,000/- to the accused which is something quite strange and unbelievable that a person without having much acquaintance would lent such a huge sum to a person about whom he does not have any information except his acquaintance with Pw2 Dinesh Komarpant. From the cross-examination of the complainant it further reveals that he did not inquire about the survey number of the property or the house number of the respondent. He even did not ask the respondent as to what kind of house repairs he intended to carry out. This is also not a normal conduct of a prudent man, that too, a business man like the complainant. The explanation which the complainant gives is that he did not ask the details of the house property because he has friendly relations. Within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From: Shivdas V. Pednekar, Amuli Wada, Khorlim, Mapusa, Bardez - Goa. Date: 26/03/2012 To, The Ramesh Tawadkar, MLA, Canacona - Goa. That I undersigned Mr. Shivdas Vithu Pednekar, r/o. Amuli Wada, Mapusa - Goa, that I received 4 lakhs (Four Lakhs) 4,00,000 from Vikas Bhagat on 16/11/2010, now that same amount I will pay on 25/04/2012 in front of Canacona MLA. If I will fail to pay same amount on that particular date you are free to take any action on me. Thanking you, Sd/- Yours faithfully, Sd/- (Umesh Abbegiri) (Shivdas V. Pednekar) 41. A bare look at the recitals would indicate that the accused was pressurized and forced to give such an unlawful undertaking. The complainant admits that there is no mention of Cheque in question at Exhibit 23. He also admits that he did not inform the MLA about the cheque and also about pendency of a criminal case against the accused. It is written in two different inks or pen. How the date of 16.11.10 appears here which, according to the complaint was 12.11.10? 4 2 . It reveals that the accused had thereafter lodged a Report against the complainant and MLA Tawadkar in the Office of Superintendent of Police about the alleged threats. 43. In his add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 4 8 . As such, the respondent has succeeded in rebutting the presumption by discharging the onus in the form of raising probable defences. Even on the aspect of preponderance of probabilities, the defences raised by the respondent are quite believable and acceptable. 49. From the cross-examination of the aforesaid witnesses itself it is sufficient to raise doubt about the nature of this transaction which cannot be said to be a legal one. It was not necessary for the respondent to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the respondent, on the other hand contends that the distance is about 69 kms. which requires at least two hours driving and therefore it was improbable for the respondent to travel the said distance. As stated above, the public document tendered by Dw1 proves that the respondent was in the Office from 9.26 to 18.08 on 12.11.2010. 57. The Learned Counsel for the complainant, Mr. Bhobe drew my attention to paras 10, 15 and 18 of a Judgment of the Supreme Court in case of Rohitbhai Jivanlal Patel Vs. State of Gujarat and another, MANU/SC/0393/2019. 10. The High Court observed that if the transaction in question was not reflected in the accounts and income-tax returns, that would at best hold the assessee or lender liable for action under the income-tax laws but, if the complainant succeeds in showing the lending of amount, the existence of legally enforceable debt cannot be denied. The High Court also observed that the issue regarding washing away of the cheques in rain water was of no significance when the accused had accepted his liability in clear terms. The High Court found that the defence plea of the accused that the money was given as hand loan by his friend Shri Jag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. 2-accused, section 139 of the Negotiable Instruments Act would mandate the presumption that the cheque concerns a legally enforceable debt or liability. Of course, this presumption is in the nature of rebuttal and onus is on the accused thereafter to raise a probable defence. 2 5 . 1 As can be noted from the chronology of events and the material that has been placed before this Court that the defence raised by the accused is not at all probable. The respondent No. 2- accused states that the money was given as a hand loan by his friend Jagdishbhai and not the appellant, also gets falsified completely by the version of Jagdishbhai. It appears that in case of all the seven cheques when notices were given prior to the filing of the complaint, he has chosen not to reply to four of the notices. Either on account of insufficiency of the funds or because he has closed account that the cheques could not be realized. All these circumstances cumulatively lead this Court to conclude that the appellant succeeded in proving the legally enforceable debt and no probable defence for rebutting the statutory presumption is raised by the respondent No. 2. 25.2 Initial presumption as contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the discharge, wholly or in part, of any debt or liability. Of course, the accused is entitled to bring on record the relevant material to rebut such presumption and to show that preponderance of probabilities are in favour of his defence but while examining if the accused has brought about a probable defence so as to rebut the presumption, the Appellate Court is certainly entitled to examine the evidence on record in order to find if preponderance indeed leans in favour of the accused. 1 8 . So far the question of existence of basic ingredients for drawing of presumption under Sections 118 and 139 the NI Act is concerned, apparent it is that the accused-appellant could not deny his signature on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of ₹ 3 lakhs each. The said cheques were presented to the Bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The Trial Court had also ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
