9911796707
TMI Blog2010 (3) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 or immediately thereafter. He, however, presented the cheque in May, 2007 which was dishonoured with remarks funds insufficient and returned to his bankers unpaid. Complainant served demand notice in writing upon respondent by RPAD. Although served, the demand made in the legal notice was not complied with. Therefore, appellant /complainant filed Complaint under Section 138 of the N.I. Act against the accused. 3. Defence of the accused as is revealed from his statement recorded under Section 313 of Cr.P.C., is that Subhash, brother of complainant, might have stolen cheque in question from his Shop as he was not in his shop for about 2/3 months on account of illness of his daughter and that cheque must have been misused by complainant. Accused claimed that he does not know complainant Gaurav and since Shop of Subhash (complainant's brother) is adjacent to his shop, he has cordial relations with Subhash. It was further claimed that false case has been instituted against him. 4. Before the Special Court, complainant examined himself as PW 1, Madan Bhake, an employee of his banker (PW 2) and Subhash, his cousin brother as PW 3 while accused examined himself. 5. Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspected the claim in Complaint unreasonably merely because of non production of Income tax return or account. The complainant is admittedly a businessman and a income Tax payer. Nonfiling of tax return or evidence of it's at payment cannot help the case of the accused while we consider such defence in the light of Evidence led at the trial. One cannot jump to the conclusion that complainant cannot recover amount of hand loan; merely for the reason that the complainant did not file income tax return. Absence of or non production of such evidence was not sufficient to rebut statutory presumption that the cheque was issued for consideration by the accused. The complainant in the present case, is businessman having business concern M/s Kabra Sales Marketing at Gandhibag, Nagpur. He stated in his affidavit that his brother Subhash and the accused have very close friendly and business relations. Subhash had assured that the accused who needed cash, would repay the money within a month hence ready cash was given interest free on 5.12.2006, in lieu of which, cheque in question came to be issued for Rs. 70,000/ . Since the accused had expressed his inability to pay the cheque amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until contrary is proved. The accused is required to rebut statutory presumptions by leading satisfactory evidence that the cheque was not issued for consideration nor in discharge of any debt or liability. Only when proof is adduced to satisfy the test preponderance of probabilities of prudent man to believe the accused, then only the burden may shift back to the complainant to adduce proof by convincing evidence of legal and enforceable debt to disprove the probabilities. This statutory presumption has to remain operative as prima facie case for complainant payee /holder in due course. The evidence to the contrary has to be led by the accused to the effect that the cheque was not issued for consideration/debt/ liability. Looking to the settled legal position the defence could not have been accepted as satisfactory and probable in the present case for to dislodge statutory presumption that the cheque in question was issued for discharge of debt or liability. It was for the accused to prove to the contrary that there was no any legally recoverable debt or liability once the accused had drawn a cheque for certain sum of money payable to the holder of holder in due course of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Sections 118 and Section 139 of the Act. The complainant is required to prove that the cheque was drawn by the accused upon his account in the Bank for a certain sum of money on a certain date which returned dishonoured for non payment on account of reason i.e. insufficient funds etc., and the accused has failed to pay the said amount, despite service of demand notice in writing upon him, within stipulated period. Once the primary facts as above, are averred and proved by the complainant in such case as required by the penal provision in Section 138 of the Act, the statutory presumptions arising are required to be rebutted by proof on preponderance of probabilities. Such evidence may be by production of documents to disprove the complainant's version or by citing material elicited from the cross examination of the complainant and his witnesses, if any. The accused may not enter in the witness box if he can dislodge the statutory presumptions otherwise. 8. Under Section 139 of the N I Act, burden lies upon the drawer of the cheque to rule out the existence of the debtor creditor relationship. The use of the phrase until the contrary is proved in Section 118 of the N I A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fense to exist or consider it's existence as reasonably probable, the standard of reasonability being that of the prudent person. To discharge onus it may not be essential for the accused to enter in the witness box to depose as he can rebut the presumption by cross examining the complainant and his witnesses if any to prove defence upon preponderance of probabilities. Thus, onus as expected to be discharged by the accused, was not discharged in this case. Once it is held that the accused had failed to rebut the statutory presumptions it ought to be concluded that the presumption itself was tantamount to proof of the case of the complainant. 9. Section 138 of the N. I. Act aims at punishing unscrupulous drawers of cheques who though purport to discharge their liability by issuing cheque, have no real intention to pay. This Court must on guard to prevent miscarriage of justice. The learned trial Magistrate ought to have noticed that the obligation on the part of the complainant stood discharged with the help of statutory presumptions of law unless the accused adduced evidence to establish the reasonable possibility of the non existence of the presumed fact. 10. In order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues from the accused. Suggestion was also denied that the two cheques were given as security. According to the accused, brother of the complainant had obtained two blank cheques from the accused as security. I find the requirements of Section 138 of the N.I. Act have sufficiently been proved in order to reverse the impugned judgment and order of acquittal passed in favour of the accused. The acquittal order appears unreasonable, contrary to the record in the facts and circumstances of the case. I find the respondent/accused guilty of offence punishable under Section 138 of the N. I. Act and convict him there under. 13. On the question of sentence, it is not necessary to insist upon incarceration of the accused having regard to nature of the offence. The accused is sentenced to undergo imprisonment till rising of the Court and to pay compensation in the sum of Rs. 70,000/ . The amount covered by the cheque in question plus Rs. 10,000/ as cost for prosecuting the accused, payable under Section 357(3) of the Cr.P.C. to the complainant, within two months from the date of this judgment. In default of payment of compensation, the accused shall undergo simple imprisonment for three mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
