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TMI Blog2022 (11) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to prove the contrary. In TEDHI SINGH VERSUS NARAYAN DASS MAHANT [ 2022 (3) TMI 797 - SUPREME COURT] the Hon ble Supreme Court was pleased to deal with the manner in which complainant is expected to lead evidence in a proceeding under the provisions of Section 138 of N.I. Act. It has been held that unless the accused in reply notice to the statutory notice sent is able to set up a case regarding the capacity of the complainant there is no requirement of the complainant to lead such evidence. In case the accused intends to demonstrate he has to examine his witness and place documentary materials to rebut the prosecution or the complainant s case. In this case the accused did not adduce any evidence nor did she rely upon any documentary materials to rebut the prosecution or the complainant s case. As such the aforesaid three judgments of the Hon ble Supreme Court assumes importance in view of the fact that all the questions which were confronted relate to source of funds of the complainant and the capacity of the complainant to give such money to the accused neither any document has been relied upon by the defence to show that there cannot be such due nor the signature in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The complainant/appellant filed a complaint before the learned ACJM, Barrackpore alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as N.I. Act ) against the accused/respondent namely Mithu Ghosh. The allegations made in the petition of complaint were to the effect that the complainant and the accused had business relationship and as such they were known to each other. The accused was chairperson of M/s. Sun Creative Images Pvt. Ltd. and on or about 25.06.07 the complainant entered into an agreement for telecasting a serial Ghatak in Sun TV Bangla. It was agreed by and between the parties that there were number of episodes and each episode was of 23 minutes. For the said purpose as security deposit a sum of Rs.3,00,000/- was tendered. A further sum was demanded by the accused in order to incorporate the TV channel namely Sun TV Bangla, which the complainant collected from his friends and gave him with a hope that his serial Ghatak would be telecast. It has been alleged that from 26.06.2008 to 12.12.2008 on different dates the complainant paid by cash a sum of Rs.9,70,000/-. In discharge of such debt and leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.08 and return memo dated 15.12.08; Ext.3 and Ext.3/1, bank deposit slip dated 01.01.09 and return memo dated 02.01.09; Ext.4 and Ext. 4/1, bank deposit slip dated 17.03.09 and return memo dated 19.03.09; Ext.5 and Ext.5/1, deposit slip dated 27.04.09 and return memo dated 28.04.209; Ext.6 and Ext.6/1, deposit slip dated 12.05.09 and bank return memo dated 14.05.09; Ext.7 and Ext.7/1, deposit slip dated 08.06.09 and bank return memo dated 09.06.09; Ext.8, demand notice dated 23.06.09; Ext. 8/1, posted receipt of demand notice dated 23.06.09; Ext.9, envelope which was refused by the accused. PW1, Subrata Bose, complainant in his evidence stated that the affidavit- in-chief which was filed was drafted as per his instruction and he signed the same after going through the contents in each of the pages. The complainant in course of his examination-in-chief on dock also identified the cheque bearing no.767432 dated 12.12.08 drawn on Punjab National Bank, Bardhaman Branch, amounting to Rs.9,70,000/- which was issued by the accused Mithu Ghosh. The witness also identified the deposit slips by way of which the same cheque was presented on 12.12.08, 01.01.09, 17.03.09, 27.04.09, 12.05.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he documentary evidence relating to the cheque, the deposit slips, the return memos, the demand notice along with the copies of the notice being refused by the accused remaining un-challenged by the accused in course of the trial. What further weighed with the learned trial Court was the decision of the Hon ble Supreme Court in Hiten P Dalal Vs. Bratindranath Banerjee reported in (2001) 6 SCC 16 and Maruti Udyug Ltd. Vs. Narendra reported in (1999) 1 SCC 113 , wherein it has been held by the Hon ble Supreme Court that by virtue of Section 139 of the N.I. Act the Court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the contrary is proved. According to the learned trial Court although the complainant in the instant case has produced number of documents which would satisfy the requirements of the Negotiable Instrument Act yet the defence/accused did not produce a single document and the defence case was only a case of mere denial. What further weighed with the learned trial Court was that although the complainant relied upon number of documents and also orally deposed to prove his case but the accused neithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttable presumption. The debt referred to in the provision is a legally enforceable debt of law and therefore it is open to the accused to raise a defence regarding legality of any debt or liability. Additionally the appellate Court assigned the reasons that the complainant is required to prove independently that the cheque in question was issued by the accused in discharge of liability or a legally recoverable debt. The complainant in the present case has failed to discharge such liability as he has not been able to prove that any dates also in respect of which money was advanced or given as loan to the accused. It has been observed by the learned Appellate Court that the cheque in question was signed by the complainant with a different ink and the particulars regarding the date, name and the amount which has been filled up was with different ink, no chit of paper has been produced by the complainant in support of such transaction, the infirmities according to the appellate Court are sufficient for drawing inference in favour of the accused that the cheque was never issued in discharge of liability. With the aforesaid observation the learned Appellate Court decided to set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with regard to the difference in ink do support the defence case that the cheque was not issued in discharge of liability and as such the appeal should be dismissed. Before appreciating the evidence and the arguments addressed by both the parties as also the reasons cited by the appellate Court and the trial Court in their judgment, some precedents of the Hon ble Supreme Court are required to be considered. In Oriental Bank of Commerce Vs. Prabodh Kumar Tewari reported in 2022 SCC OnLine SC 1089 the relevant paragraphs are set as follows: 4. The respondent admits that he signed and handed over a cheque to the appellant. According to the respondent a signed blank cheque was handed over by him. The question which arises in the appeal is whether the High Court was correct in permitting the respondent to engage a hand-writing expert to determine whether the details that were filled in the cheque were in the hand of the respondent. For the reasons set out below, we have allowed this appeal against the order of the High Court for the reason that Section 139 of the NI Act raises a presumption that a drawer handing over a cheque signed by him is liable unless it is proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt, or liability. The expression unless the contrary is proved indicates that the presumption under Section 139 of the Act is rebuttable. Terming this as an example of a reverse onus clause the three-Judge Bench of this Court in Rangappa held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities. This Court held thus: 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances, the impugned judgment and order passed by the High Court acquitting the accused for the offence punishable under Section 138 of the N.I. Act is hereby quashed and set aside and the order passed by the learned trial Court convicting the accused for the offence punishable under Section 138 of the N.I. Act confirmed/modified by the learned Sessions Court is hereby restored. Now, the accused be dealt with as per the order passed by the first Appellate Court/Sessions Court. In Tedhi Singh Vs. Narayan DassMahant reported in (2022) 6 SCC 735 the Hon ble Supreme Court was pleased to deal with the manner in which complainant is expected to lead evidence in a proceeding under the provisions of Section 138 of N.I. Act. It has been held that unless the accused in reply notice to the statutory notice sent is able to set up a case regarding the capacity of the complainant there is no requirement of the complainant to lead such evidence. In case the accused intends to demonstrate he has to examine his witness and place documentary materials to rebut the prosecution or the complainant s case. The following paragraphs of the cited judgment require consideration and are set ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately, it becomes the duty of the courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence. In the present case the only relevant answers in cross-examination were a mode of denial wherein PW1 answered in respect of a question of the accused that Not a fact that, the accused persons never issued cheque of the amount Rs.9,70,000/- . A series of question were asked in reply to which the following answers were given by the PW1 in cross-examination which are set as follows: Not a fact that, I did not give any money to the opposite party for which I am (read have ) demanded my dues from him. Not a fact that, I cannot claim any dues (read dues ) from him. Not a fact that, I have filed a false and fabricated case. Not a fact that, I have not filed any bank related document. Not a fact that, I have deposed falsely before this court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused to do in such case is to raise a probable defence. It cannot be a probable defence that the complainant has no capacity to pay the money until and unless an initial defence is set up by a reply notice or the accused examines his witnesses and relies upon documentary evidence. In this case the signature in the cheque also has not been challenged, no evidence to that effect is reflected in the cross-examination of PW1 (the sole witness in this case). Further, no materials have been produced to show as to how the cheque was in possession of the complainant as there are no allegations of lost cheque or the signature in the cheque being forged. Although it is permitted in a case of such nature to raise a probable defence from the available materials in the cross-examination of the prosecution witness only, but the nature of the cross-examination and the probable defence raised by the accused do not qualify as a rebuttal to the provisions under Section 139 of the N.I. Act and the learned Appellate Court unnecessarily resorted to the issue of difference in ink as no case has been made out by the accused for the cheque having been lost or the same was obtained by coercion. Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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