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TMI Blog2016 (9) TMI 1653X X X X Extracts X X X X X X X X Extracts X X X X ..... ala by his judgment and order dated 29.12.2014 delivered in N.I. 21 of 2012. Pursuant thereto, the petitioner was sentenced to pay a fine of Rs. 3,85,000/- in default to suffer simple imprisonment for 2(two) years. The said judgment dated 29.12.2014 was challenged by the petitioner by fling an appeal under Section 374(3) of the Cr.P.C. being Criminal Appeal No. 03 of 2015 in the court of the Sessions Judge, West Tripura, Agartala. By the said judgment dated 23.11.2015, the appeal was dismissed observing that though the complainant [the respondent No. 1] in his examination-in-chief [filed by the affidavit] has stated that the accused issued the cheques 'to secure' the debt of Rs. 3,50,000/-, it is more than apparent that when the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice. Despite having received the notice on 09.01.2012, the petitioner did not pay the money or part thereof. As a result, the cause for fling the complaint arose on 22.01.2012 and within the stipulated term the complaint was filed. The only ground that was taken in the appeal is that two cheques were handed over by the accused-complainant as security to secure the loan for which Section 138 of the N.I. Act cannot be attracted. The said ground of objection has not been accepted by the impugned judgment assigning the reasons as noticed above. The similar ground has been asserted again to question the judgment dated 23.11.2015 by the petitioner. According to him, the cheques were for securing the loan not for discharging the liability. Unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The Appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act." [Emphasis added] 5. Mr. Lodh, learned counsel appearing for the petitioner has also relied on another decision of the apex court in Sudhir Kumar Bhalla vs. Jagdish Chand & etc. etc. report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to Mr. Lodh, learned counsel, the impugned judgment is liable to be interfered with. 7. The basic principle of applying a precedent in the criminal jurisprudence is that the ratio that has been laid down by a particular judgment has to be first construed in the backdrop of its peculiar circumstances. If the facts and circumstances are identical and not subject to distinction then only the principle as laid can be applied. But there can be another way of looking at the precedent is that when the precedent interprets a provision having due regard to the scheme of the Act that can be imported for purpose of applying in the future cases. In this case, the petitioner did not adduce any evidence and the complainant, the respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once the accused is found to discharge his initial burden, it shifts to the complainant. In Bharat Barrel & Drum Mfg. Co. vs. Amin Chand Pyarelal reported in (1999) 3 SCC 35, the apex court had occasion to observe on interpreting the Section 118(a) of the Act as follows: "Upon 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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