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TMI Blog2022 (11) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to filing of the present application is briefly stated as under:- "Shri Ajay Agarwal, hereinafter the respondent, has a computer shop namely 'Computer Solution' in North Lakhimpur Town, and Sri Joluk Ninu of Itanagar, hereinafter the petitioner, came to the shop of the respondent and purchased computer, laptop, desktop and other computer accessories for a sum of Rs. 4,07,880/- by giving him a cheque bearing No. CCS No. 50-0701072 of State Bank of India, Ganga Branch and again on 15.05.2009 the petitioner came to the shop of the respondent and handed over an another cheque for a sum of Rs. 2,03,940/- bearing no. CCS No. 0701074 of State Bank of India, Ganga Branch, Itanagar. Accordingly, on 27.07.2009, the respondent deposited both the cheques at the State Bank of India, North Lakhimpur Branch, for collection of the said amount. But, on 04.08.2009, the bank returned both the cheques with the endorsement 'insufficient fund' in the account of the petitioner. Thereafter, the respondent has issued legal notice to the petitioner demanding payment of the cheque amounts. But, the petitioner had failed to make the payment despite of receipt of notice. Then the respondent had filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the same cannot give rise to a complaint under 138 of the N.I. Act, since the said cheques were not issued for the purpose of discharging any debt or liability; [vi] That, the learned courts below had erred in law by applying section 139 of the N.I. Act to the fact of the present case as there being no prima facie evidence to support the statement of the complainant that the petitioner, on certain specified date, had brought goods of specified amount from the shop of the respondent; [vii] That, the learned courts below had failed to consider that the cheque is a bill of exchange drawn on a specified banker and not expressed to the payable otherwise then on demand and the bill of exchange could not have been considered to be cheques within the meaning of section 5 and 6 of the Act, so as to attract the offence punishable under section 138 of the N.I. Act; [viii] That, the learned courts below had failed to appreciate that there was material discrepancies in the evidence of the complainant which shakes his credibility as he had given different versions in his examination in chief and cross examination; [ix] That, the learned court below has failed to appreciate that though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jeba Ananth reported in [2020] 15 SCC 348; [ii] Oriental Bank of Commerce vs. Prabodh Kumar Tewari reported in [2022] SCC Online Sc 1089; [iii] Tummala Venkateswar Rao vs. State of Andhra Pradesh reported in [2014] 2 SCC 240; [iv] M.S. Narayana Menon @ Mani vs. State of Kerala and another reported in [2006] 6 SCC 39; [v] Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others reported in [1968] 3 SCR 862 AIR 1968 SC 1413; and [vi] Ajoy Agarwal vs. Jaluk Nenu in C.R. case no. 248/2009. 6. Per contra, Mr. B. Deka, learned counsel for the respondent submits that there is concurrent finding of the two learned courts below and this court while sitting in revision cannot re-appreciate the evidence like an appellate court. Mr. Deka has pointed out that the contradictions so referred by the learned counsel for the petitioner in the deposition of the complainant, are minor in nature and as such they are not material and that in view of admission made by the petitioner that there was business transaction between him and the respondent, and issuance of blank signed cheques to the respondent by him, the presumption under section 139 of the N.I. Act is very much available and it do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocates of both sides is that -"the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 10. In Rangappa v. Sri Mohan reported in (2010) 11 SCC 441, a three-Judge Bench of Hon'ble Supreme Court held that Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a 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 Court 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. 11. It is further held that:- "28. In the absence of compelling justifications, reverse onus clauses usually im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt about the veracity of his version. It is to be noted here that the law relating to contradiction is well settled by Hon'ble Supreme Court in catena of decisions. In the case of Krishna Pillai vs. State of Kerela reported in AIR 1981 SC 1237, Hon'ble Supreme Court has held that no criminal case is free from inconsistencies and discrepancies in the prosecution evidence and unless such inconsistencies and discrepancies pertains to significant aspect or go to the root of the matter, the defence cannot take the benefit of the same. Here in this case having carefully examined the contradiction so pointed out at the bar this court left unimpressed by the submission of Mr. Tiwari that there is any material contradiction to shake the credibility of the version of the respondent. 14. It is a fact that the respondent had produced Tax Invoice and Challan of selling computers, laptops and accessories to the petitioner. Though Mr. Tiwari, the learned counsel for the petitioner has submitted that the respondent has withdrawn the relevant evidence and because of non-consideration of the same by the learned courts below in their judgments leads to perversity, yet, the same would not disentitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act." 16. Thus, having carefully considered the submissions of learned Advocates of both sides and also considering the facts and circumstances on the record of the learned court below, this court is of the view that the petitioner herein has failed to rebut the statutory presumption drawn under section 139 of the N.I. Act. There is nothing on the record to show that the learned courts below have committed any jurisdictional error. As submitted by Mr. Tiwari it cannot be said that the impugned judgments and orders of the learned courts below suffers from perversity. It is to be mentioned here that while exercising revisional jurisdiction the High Court cannot substitute its view for that of the trial court if two views are possible. Reference in this context can be made to a decision of Hon'ble Supreme Court in the case of Helper Girdharbhai vs. Saiyed Mohmad Mirsaheb Kadri and Ors., reported in AIR 1987 SC 1782. 17. In the result I find this revision petition devoid of merit and accordingly, the same stands dismissed. Interim relief, if any, grant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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