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TMI Blog2018 (8) TMI 2048X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has already paid. 5. Mr. Bhattacharjee, learned counsel at the outset has reiterated the said ground of objection, but the respondent has neither challenged the order dated 06.08.2016 nor have they asked for any accommodation for challenging the said order. As such, the said objection stands discarded. 6. Brief facts leading to filing of the complaint under Section 138 of the Negotiable Instruments Act, 1881 may be summarized at the outset. The respondent had purchased one Tata JD Backhoe Loader (earth cutting machine) from the complainant-appellant on a consideration price of Rs. 9,00,000/-. In order to pay the said consideration price of the Tata JD Backhoe Loader having registration No. TR01 P 1679, it has been stated in the complaint that the respondent issued two separate cheques being the cheque No. 636258 for an amount of Rs. 3,00,000/- dated 21.11.2012 and the cheque No. 636259 for an amount of Rs. 6,00,000/- dated 21.11.2012 in favour of the complainant-appellant on the State Bank of India, MBB College Campus Branch. The complainant, in order to encash, deposited those cheques in his account in the State Bank of India, RMS Choumuhuni Branch on 01.01.2013. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent however pleaded innocence and claimed to be tried. 11. In order to substantiate the said statement of accusation the complainant examined himself and narrated the occurrence by stating that he sold out Tata JD Backhoe Loader earth cutting machine bearing registration No. TR01 P 1679 to the respondent on a consideration price of Rs. 9,00,000/-. 12. In order to discharge the liability of payment of the consideration price, the accused respondent issued two cheques bearing No. 636258 dated 21.11.2012 for an amount of Rs. 3,00,000/- and another cheque bearing No. 636259 dated 21.11.2012 for an amount of Rs. 6,00,000/-. When he deposited the said cheques for encashment on 01.01.2011 in the State Bank of India, RMS Choumuhuni Branch, on the same date the banker informed him that both the cheques were dishonoured for insufficiency of funds. On receipt of the said information from the Bank that the cheques could not be honoured due to insufficiency of funds, he sent a notice on 15.01.2013 to the accused person demanding Rs. 9,00,000/- and the notice was received by the accused respondent on 18.01.2013. 13. In due course, he filed the complaint and he admitted the documents such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 8,00,000/- in cash to the complainant appellant. On 11.12.2012 the complainant came and took Rs. 8,00,000/- in cash from the office of the accused-respondent. It has also been asserted that in presence of Subhankar Pal and Sunam Debnath he paid that amount but he did not take any receipt for such payment, nor did he take back the cheques he had issued for discharging his liability of paying the consideration price. 19. DW 2 has corroborated the payment of Rs. 8,00,000/- on a particular date, i.e. 11.12.2012. On that date, even the DW 2 collected a sum of Rs. 50,000/- from the accused respondent but he denied the suggestion that on that date at a particular time he did not receive any amount from the accused-respondent. 20. DW 3, Subhankar Pal, another chance-witness has stated in the same line as has been stated by DW 2. He has stated that he has witnessed that the accused-respondent paying a sum of Rs. 10,00,000/- in cash. At that time, Subhankar Pal, DW 3 was there because he came to collect a sum of Rs. 2,00,000/- from him. He has categorically stated that while receiving the cash the complainant did not return the cheques but assured the accused respondent to return thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onus by proving that there was no legal liability to be discharged by the accused-respondent. The liability of payment of the consideration price, he had discharged by paying two installments in cash, viz., Rs. 1,00,000/- which was paid to PW-2 and the rest of the amount, i.e. Rs. 8,00,000/- to the complainant-appellant in the office of the accused-respondent on 11.12.2012. Thus, there is no infirmity in the judgment and order of acquittal. 25. Mr. Bhattacharjee, learned counsel has also, in order to buttress the submissions, relied on two decision of Apex court viz., M.S. Narayana Menon @ Mani vs. State of Kerala & Anr. reported in (2006) 6 SCC 39 : [2006(5) ALL MR 33 (S.C.)] where the Apex court has discussed the law of presumption and held that "the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non existence of the consideration so probably that a competent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption what is needed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the NI Act cannot be equated with an offence made out by the provision of the IPC or any other offence. 32. The offence under Section 138 of the NI Act is in the nature of civil wrong but it has been strapped within the criminal liability. Section 138 of the NI Act requires some fundamental ingredients to be proved viz., (i) there is a legally enforceable debt; (ii) the cheque that was drawn, was so drawn in discharge in whole or in part of any debt or liability, which presupposes existence of legally enforceable debt; and (iii) the Cheque issued has returned due to insufficiency of fund. 33. To enforce the said Act, the scheme of Section 139 has been rephrased by the Amendment Act (Act 66 of 1988) which has come into effect from 01.04.1989. The re-phrased provision reads as under: "S. 139-presumption in favour of the holder- it shall be presumed, unless the contrary is proved that the holder of the cheque received the cheque of the nature referred to Section 138 for the discharge, in whole or in part, of any debt or other liability." 34. Section 118 of the NI Act, which deals specially with the special rule of evidence under the NI Act, 1881 provides the rule of presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as stated. The first instalment to the extent of Rs. 1,00,000/- was paid to PW 2 which PW 2 had acknowledged by issuing a receipt (Exbt.-A). Even, according to Mr. Bhattacharjee, he has admitted the payment of Rs. 1,00,000/- in respect of the transaction related to the sale. That apart, the remainder of the consideration price was paid on 11.12.2012. Thus, he has asserted that the inference as drawn by the Magistrate for acquitting the accused-respondent is flawless and warrants no interference from this Court. 38. On appreciation of the evidence, it appears that the liability of payment of consideration price to the extent of Rs. 9,00,000/- has been clearly admitted by the accused-respondent. Further he has admitted that he issued those cheques which were dishonoured when placed for encashment but according to him, the consideration price was paid by him in cash in two installments on two different dates and two different persons, viz., PW 1 and PW 2. 39. PW 2 was examined. He has testified in the trial that he had received Rs. 1,00,000/- but that was a part of the payment the accused respondent had promised to pay for the rental of the TATA JD earth cutter. The said amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence and the other is the evidence completely based on documents relating to the transaction and of the bank process. 44. Whether a prudent person can believe that keeping two live cheques in custody of someone, the same amount of money will be given to that person without taking back those cheques? If phrased differently, whether a prudent person would believe without obtaining receipt, a sum of Rs. 8,00,000/- may be paid to someone where the transaction in the note (Exbt.-8)? There is no evidence that the accused-respondent having received the notice of demand, as stated, had reacted by revealing the said plea. 45. In this regard, the decision of the Apex Court in Hiten P Dalai [2001 ALL MR (Cri) 1497 (S.C.)] (supra) appears very relevant, as the Apex court has provided in that report; the details how such situation has to be weighed. 46. In Hiten P Dalai [2001 ALL MR (Cri) 1497 (S.C.)] (supra) the Apex Court has distinguished or made distinction between the two types of presumption but also has delineated the nature of evidence required to rebut the two. In the case of discretionary presumption, the presumption drawn may be rebutted by the expression, "might reasonably b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 non-existence 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. "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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Hiten P. Dalai [2001 ALL MR (Cri) 1497 (S.C.)] (supra) has distinguished between two situations. It is not general presumption under Section 114 of the Evidence Act, it is a presumption under Section 139 read with rule of evidence as provided under Section 118 of the NI Act. The presumption has to be very direct and of such nature that the fact that has been laid has to be trusted by a prudent person. It must be supported by reliable materials. A reasonable man would act on the supposition that it exists. Unless, the explanation in order to rebut is supported by proof the presumption created by the statute cannot be said to have rebutted. 56. This Court has also noticed that the accused-respondent has acted sometimes in a manner which cannot be stated to be bona fide. Even in the Court, he has stated that he did not receive the notice but the record from the postal department has squarely established that notice was duly served. Even he did not make any attempt to bring someone from the postal department to demonstrate that the communication dated 23.02.2013 (Exhibit-B) is not based on delivery of the registered article. Even there is no infirmity in the admission of the communi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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