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TMI Blog2022 (4) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... the said presumption - the trial court found that the complainant is able to prove the fact that the cheque vide no.445340, dated 08.06.2014 was dishonoured due to insufficient fund in the account of accused and also due to drawers signature differs - decided in affirmative and in favour of the complainant. Whether the accused even after receipt of the notice of the complainant, did not return the money and did not make arrangement of sufficient fund in his account to make the transaction good and to honour the cheque? - HELD THAT:- The trial court has observed that evidence of PW 1 corroborated by Ext.4, the demand notice dated 12.06.2015 Ext.5 the postal receipt dated 13.06.2015 and Ext, the AD card, From Ext. 4 the trial court found that the complaint issued demand notice to accused on 12.06.2015. From Ext5, the trial court found that the complainant through his advocate sent demand notice to accused by registered post with AD. From Ext.6 the trial court found accused received demand notice issued by complainant through his advocate - In cross-examination, the defence failed to discard the mentioned evidence. No suggestion is given in cross-examination by defence that accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant s case is that the accused Sri Apu Ranjan Debnath had friendly relation with the complainant Sri Apu Ranjan Debnath and had taken ₹ 3,00,000/- from the complainant with a promise to repay the same very shortly and on 08.06.2015 the accused issued the cheque vide no.445340 in favour of the complainant to discharge his debt and liability and on the same date the complainant deposited the said cheque in his account vide no.8070012400541 lying in the Tripura Gramin Bank, Udaipur Branch and on the same date the said cheque was dishonoured due to insufficient of fund in his account vide no.30245476465 lying the State Bank of India, Udaipur Branch and on 12.06.2015 the complainant issued demand notice top the accused and on 13.06.2015 accused has received the said notice but failed to pay the money. [3] Having heard the counsel for both the parties, the trial court made the following points for determination: (i) Whether the accused Sri Dipankar Majumder on 08.06.2015 issued the cheque No.445340 in for ₹ 3,00,000/- in favour of complainant in discharge of his debt and liability? (ii) Whether on 08.06.2015 while the cheque was presented to the Triprua Gramin Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. No plea is taken and no suggestion is given as to the fact that accused paid money to complainant after receipt of demand notice. Therefore, considering all this aspect, it can be said that the accused even after receipt of the notice of the complaint, did not return the money and did not make arrangement of sufficient fund in his account to make the transaction good and to honour the cheque. Accordingly, point No.(iii) was decided in affirmative and in favour of the complainant. [8] The trial court while deciding the point No.(i) has relied on a decision of the apex court in M /S LAXMI DYECHEM vs. STATE OF GUJARAT ORS reported in (2012) 13 SCC 375, where the apex court has held in the following manner: 15. A three-Judge Bench of this Court in Rangappa v. Sri Mohan (2010) 11 SCC 441 has approved the above decision and held that failure of the drawer of the cheque to put up a probable defence for rebutting the presumption that arises under Section 139 would justify conviction even when the appellant drawer may have alleged that the cheque in question had been lost and was being misused by the complainant. 16. The above line of decisions leaves no room for hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed mercy before the Court. Considering all, I sentence the convict Sri Dipankar Majumder to suffer SI for 1(one) year and to pay a fine of ₹ 6,00,000/- (Rupees six lakh) only, in default SI for further 6(six) months under Section -138 of NI Act. [11] Aggrieved by the order dated 25.08.2017, the defendants filed an appeal being Criminal Appeal No.42(03) of 2017 in the court of the Additional Sessions Judge Gomati Judicial District, Udaipur. [12] The lower appellate court has observed that when accused denies having paid any cheque in discharge of any debt then it is sufficient for the court to draw presumption u/s-139 N.I Act on mere production of signed cheque by the complainant and whether in such cases complainant need not prove I the existence of legally recoverable debt. [13] It further discussed Section 139 of NI Act which speaks about presumption in favour of holder and it says that 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. [14] The lower appellate court while dealing with Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... older of a cheque is a holder in due course and the said cheque was issued for discharging debt or liability and burden to rebut the said presumption lies upon the accused and, in this case, the accused failed to discharge the said burden . [18] It is further stated by the lower appellate court that the law is very clear that the drawing of presumption U/S139 of the N.I. Act is not automatic or casual on mere presentation of cheque. The existence of facts required to form the basis of a presumption of law must precede before drawing of presumption U/S139 of the N.I. Act and on proof of such basis by the complainant the court is bound to draw presumption U/S 139 of the N.I. Act and in that eventuality burden shifts on the accused to rebut the presumption. [19] It is a settled position that the standard of proof for rebutting the presumption under Section 139, is that of 'preponderance of probabilities' and in rebutting such presumption, accused can rely on the materials submitted by the complainant in order to raise such a defence and if such materials are conceivable then in such cases accused may not need to adduce evidence of his own. [20] In this case even thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment passed by this high court on Keshab Banik vs. Sekhar Banik reported in (2013) 1 TLR 528 wherein the high court has observed in the following manner: 6. I have meticulously gone through the complaint and the evidence or record. Except denial there is nothing in the cross-examination of PW1 regarding the alleged advance of Rupees on lakh to the accused by the complainant and issuance, of the cheque by the accused assuring repayment of the amount. Section 138 has been incorporated to protect the holder of a negotiable instruments in due course. If a cheque is issued and the payee presented the cheque for encashment and it is dishonoured for not having the adequate amount in the account of the drawer of the cheque and he is informed by a notice by the payee and if it is found that still the drawer of the cheque fails to make the payment, he is liable to be booked under section 138 of the N.I Act. [26] Reliance has also been made by Mr. Sarkar on a decision of this high court in Dipankar Majumder vs. Sandipan Ghosh and Anr reported in (2017) 1 TLR 492 wherein the court has observed in the following manner: 7. The basic principle of applying a precedent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the 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-existenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reported in (2010) 11 SCC 441, wherein the apex court has observed in the following manner: 12. Furthermore, the trial judge erroneously decided that the offence made punishable by Section 138 of the Act had not been committed in this case since the alleged dishonour of cheque was not on account of insufficiency of funds since the accused had instructed his bank to stop payment. Accordingly, the trial judge had recorded a finding of acquittal. However, on appeal against acquittal, the High Court reversed the findings and convicted the appellant-accused. 13. The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 886322, dated 8- 2-2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probable. 20. The counsel appearing for the appellant- acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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