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TMI Blog2021 (7) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... fect his case because the Branch Manager of SBI at Udaipur branch had categorically stated in his evidence that the said cheque was missing from the custody of the bank which was also reported to the jurisdictional police station and the information was recorded in the General Diary of the police station. The accused could not impeach the evidence of the PW in this regard and there is no reason to doubt the statement of the Branch Manager, SBI [PW-3]. The plea of the accused is not at all probable. The complainant on the other hand has been able to prove the essential facts by adducing consistent evidence. The complainant proved that accused borrowed a sum of ₹ 2 lakhs form him and to discharge his debts, he issued the impugned cheque to the complainant which was dishonoured by the bank - In the instant case, apparently the accused petitioner did not lead any evidence in rebuttal of such statutory presumptions. He has also failed to bring on record such facts and circumstances which would lead the courts below to believe that the liability, attributed to the accused petitioner was improbable or doubtful. The impugned judgment is set aside and judgment and order of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner to respondent No.1 through his lawyer demanding payment of ₹ 2 lakhs within 15 days and such notice was sent to his known residential address through post registered with AD. Despite receiving the notice, accused respondent Alak Dey did not refund the money to the petitioner. [4] A complaint was then filed by the petitioner in the court of the CJM in Gomati Judicial District at Udaipur alleging commission of offence punishable under Section 138 NI Act and Section 420 IPC. The learned trial court took cognizance of offence punishable under Section 138 NI Act and summoned the accused. [5] After the accused appeared, trial commenced with the framing of the following charge against him: Accusation levelled against you Sri Alok Dey is that on 10.03.2016 for the purpose of your personal need borrowed an amount of ₹ 2,00,000/- from the complainant Sri Sankar Das with a condition to return the same within 10.04.2016 you issued a cheque vide no.15706 dated 10.03.2016 for discharge of your debt and liability of Tripura Gramin Bank, Udaipur Branch vide A/C no. 8070012405601 and accordingly the complainant deposited the said cheque in his A/C no.31328439774 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, adduced by the parties and after hearing the counsel of the parties at length the learned trial court delivered the judgment observing as under: 11. Once it is proved that the cheque in question was issued by the accused or once signature in the cheque is admitted, as per Section-138 and 139 of the NI Act it also can be presumed that the said cheque was issued for discharging of debt or liability and burden to rebut the said presumption lies upon the accused. In this respect, the Hon'ble Supreme Court in Rangappa vs Mohan, reported in 2010 AIR SCW 2946 where considering the earlier decision in Krishna Janardhan Bhat (supra), in para 14, it is held, 14. In the 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 (supra) may not be correct. In this respect Hon'ble Supreme Court in K. Bhaskaran -vsSankaran Vaidhyan Balan Anr., reported in AIR 1999 SC 3762 held, 9. As the signature in the cheque is admitted to be that of the accused, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16, I find, complainant issued demand notice to accused. From Ext.3, the postal receipt dated 31.05.2016, I find, demand notice was issued to accused by complainant. From Ext.4, the delivery slip register, I find, accused received the demand notice issued by complainant. That apart, while examination under Section 313 of Cr.P.C., the accused admitted that he has received demand notice from the complainant and he has not paid any money to complainant after receipt of demand notice. Thus, considering all this aspect, I find, it can be said that the accused failed to pay the money on receipt of demand notice. Accordingly, Point No.(iii) is decided in affirmative and in favour of the complainant but against the accused. ORDER In the result, I hold, complainant has been able to prove the charge leveled against the accused Sri Alok Dey under Section 138 of NI Act. As such, I do hereby convict the accused under the aforesaid provisions of law. Consideration Under Probation of Offender Act, 1958 :- I have also heard Learned Counsel of both the sides in the matter of granting Probation and considering the nature and gravity of the offence, I am not inclined to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law that the standard/degree of proof in a criminal case stands on a much higher footing than a Civil case, which means that the prosecution must prove its case beyond all reasonable doubt. Though there is presumption U/S139 of the N.I. Act in favour of the complainant that he received the cheque for the discharge of debt or liability but before that presumption gets attracted it must must be shown that there is a cheque which gets dishonored for want of sufficient fund and thereafter returned by the banker. But Complainant failed to prove that bounced cheque was returned by the banker to him and thus I am of the opinion that complainant failed to prove that the cheque was returned unpaid by Banker. 14. Thus in view of the aforesaid discussion I came to the conclusion that the Lerned Trial Court failed to consider the point if the cheque in question was returned unpaid by the Banker ad without any finding on this point, the impugned Judgment cannot be allowed to be sustained. The Learned Trial Court also unduly drew the presumption under Section139 of the N.I. Act in Para11 of the Judgment because before drawing such presumption there must be some material that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our view, erred in quashing the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques. 6. Suffice it to observe, the impugned judgment of the High Court cannot stand the test of judicial scrutiny. The same is, therefore, set aside. [14] Further submission on behalf of the complainant petitioner is that in view of the amended provision of Section 146 of the NI Act, bank s slip is the prima facie evidence of certain facts. According to Mr.Bhowmik, learned counsel of the petitioner, when a bank slip or memo having thereon the official mark denotes that the cheque has been dishonoured, the court shall presume the facts of dishonour of such cheque unless and until such fact is disproved. According to the counsel of the complainant petitioner in the present context, the bank slip denoting the dishonour of the cheque has been produced by the complainant and the respondent could not disprove the fact. Therefore, a presumption has to be drawn against the accused respondent that a cheque was dishonoured for insufficiency of fund in his account. In this regard learned counsel has relied on the decision of this high court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside. According to learned senior counsel, there is no illegality in the impugned judgment and as such the said judgment does not call for any interference in this criminal revision petition. [16] As noted, 4 witnesses have been examined on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marked as Exhibit-4. The article contained the statutory demand notice issued by the complainant to the accused. In his cross-examination he denied the suggestion of the accused that no post man of his post office delivered any demand notice to accused Alak Dey. [19] PW-3, Soumik Bhadury was the Branch Manager, Garjee branch of SBI on the material date. According to the PW, cheque bearing no.157066 dated 10.03.2016 was deposited at SBI in its Garjee branch on 12.04.2016. Since the cheque was drawn on Tripura Gramin Bank, the same was sent to Tripura Gramin Bank, Garjee branch for collection. But the same was returned without collection. According to the PW, subsequently the cheque along with its return memo was found missing from the bank which was reported to police by some Amul Lakra, the then branch manager of SBI, Garjee branch and on the basis of his information an entry was made in the General Diary (GD) of R.K.Pur police station. The PW identified the GD entry which was marked as Exhibit 6 on his identification. The Branch Manager, SBI, Garjee branch also informed the entire facts to the branch manager, Tripura Gramin Bank by a letter dated 20.05.2016[Exbt.7] wherein he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was returned by your bank due to insufficient balance in the account of Sri Alok Dey. During the course of return, the cheque is misplaced from banks custody and yet to be traced. 3. We have lodged a FIR and inform the Tripura Gramin Bank, Udaipur Branch for not paying the cheque in future. 4. So we request you to collect a fresh cheque from the customer after confirming his balance. Sorry for your inconvenience. This is for your kind information and necessary action please In his cross-examination, the PW denied the suggestion of the accused that the cheque was not received by them and it was not sent to Tripura Gramin Bank for collection. [21] PW-4, the Branch Manager of Tripura Gramin Bank of Udaipur branch confirmed in his cross-examination that a cheque book containing cheque no.157051 to 157075 was issued from the Tripura Gramin Bank to the accused who had an account in their bank vide account no.8070012405601. On 21.4.2016 Tripura Gramin Bank received a cheque bearing no 157066 from SBI, for clearing. The said cheque was issued by the accused in favour of the complainant drawn on Tripura Gramin Bank where the accused had the aforesaid account. On sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l police station and the information was recorded in the General Diary of the police station. The accused could not impeach the evidence of the PW in this regard and there is no reason to doubt the statement of the Branch Manager, SBI [PW-3]. [24] Exhibit-1 as well as Exhibit-7 containing official seal of SBI, Garjee branch clearly denotes that the impugned cheque bearing no.157066 dated 10.03.2016 of an amount of ₹ 2,00,000/- issued by the accused against his account No.8070012405601 in Tripura Gramin Bank was dishonoured by Tripura Gramin Bank and the same was returned to SBI for insufficiency of fund in the said account of the accused. The Branch Manager, Tripura Gramin Bank of Udaipur branch[PW-4] also confirmed this fact. The accused could not rebut such evidence. [25] As stated by this court in the case of Utpal Majumder (supra) relied on by the learned counsel of the complainant, such memo with the official mark showing that the cheque was dishonoured would by itself give rise to the presumption of the dishonour of cheque in terms of Section 146 NI Act unless and until the contrary to the said fact is proved. Thus it stands established that the impugned cheque is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (ibid at p 65, para 14). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but 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, Crl. Rev.P.79 of 2017 after considering the matters before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt shall not serve any purpose. The following was held in paragraph 20 [Kumar Exports vs. Sharma Carpets (2009) 2 SCC 513] : 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 for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist... [31] After scrutinizin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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