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TMI Blog2023 (5) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... lation of mandate of The Income Tax Act (as contained in Section 269 ST of The Income Tax Act and Section 269SS of the said Act), therefore, respondent No. 2 cannot be allowed to get protection of his unlawful act of dealing with cash above the ceiling amount prescribed under the law. If the impugned FIR and proceedings arising out of the same is allowed to be sustained, it would amount in protecting and recognizing illegal acts of respondent No. 2. The impugned FIR and subsequent proceedings stands hereby quashed to prevent miscarriage of justice and this petition is allowed. - S.B. Criminal Miscellaneous (Petition) No. 6897/2022 - - - Dated:- 5-5-2023 - HON'BLE MR. JUSTICE BIRENDRA KUMAR For the Petitioner(s) : Mr. R.K. Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to the bank. Respondent No. 2 submitted a return Whatsapp reply, a copy of the same is at Annexure-4 stating therein that respondent No. 2 is suffering from financial crunch and after restitution of business after Corona effect, he would ensure payment. The petitioner presented the cheque on 16.12.2020 to the Bank and the Bank reported (vide Annexure-5) that the cheque cannot be honoured as the fund is insufficient in the account of respondent No. 2. Thereafter, the petitioner informed to respondent No. 2 about dishonour of the cheque and respondent No. 2 assured the petitioner to wait till 4.1.2021, when respondent No. 2 would make the payment of the cheque amount, failing which, the petitioner would be at liberty to initiate legal proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e got dishonoured. For the fraudulent act aforesaid, the impugned FIR has been lodged. 7. Learned counsel for the petitioner submits that even if the complainant's statement is assumed to be correct, the complainant has admitted that he had signed the cheques but fraud was committed in filling up those cheques and presenting the same before the Bank. Learned counsel contends that in the aforesaid factual scenario, provisions under Section 139 of The Negotiable Instruments Act would be attracted which reads as follows: 139. Presumption in favour of holder 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d one. Likewise, whether the Whatsapp message was from the mobile phone of the complainant- respondent No. 2 or not. The FIR evidently discloses dishonest and fraudulent act of the petitioner in getting the security cheques filed up and producing the same before the Bank. 10. Even if the averments made in the FIR are assumed to be correct, it is admission of respondent No. 2 that he had issued the signed cheque which is subject mater of the complaint case filed by the petitioner. The cheques were for refund of loan. 11. In Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197 the Hon ble Supreme Court stated: 33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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