9911796707
TMI Blog2023 (8) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... n of proof by the complainant as held by the session is erroneous and bad in law and the judgement under revision is thus liable to be set aside - The case is of the year 2017. Five years have passed. Accordingly the amount of fine is modified to Rupees 4,00,000/- instead of Rs 5,20,000/- to be paid within two months from the date of this judgement, in default the accused shall serve out his sentence of imprisonment in default of fine. The Judgement is hereby set aside - revision disposed off. - The Hon ble Justice Shampa Dutt ( Paul ) For the Petitioner : Mr. P. Roy, Ms. S. Ghosh For the Opposite Party : Mr. M. Nandi, Mr. Mayukh Nandi ORDER Shampa Dutt ( Paul ) , J. : The petitioner/complainant has filed revision praying for setting aside of the judgment dated 07/08/2019 passed by the Additional District session Judge 1st Fast Track Court, Calcutta in Criminal Revision no. 61/2018 thereby setting aside the judgment and order passed by the Ld. Metropolitan Magistrate 3rd Court, at Calcutta dated 31.07.2017 in complaint case no. C-39853/2009 u/s 138 of The Negotiable Instruments Act, 1881, convicting the opposite party No.1/ accused to suffer I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Session Judge, 1st Fast Track Court, Calcutta failed to consider the settled principle of law that the complainant in a cheque bounce case need not prove the amount due as if he has to prove a debit in civil court. The Ld. Judge also failed to consider the legally settled principal that once the cheque is signed and issued by the drawer, the same has to be presumed to have been issued in discharge of legally enforceable liability. The Ld. Judge also failed to notice the fact that the accused at no point of time issued any letter or communication to the complainant demanding return of the cheque or to supply the goods (which he now claims to not have received) which clearly shows that the accused had received the goods to the best of his satisfaction. The Ld. Court failed to consider Exhibit-1 against which the goods were supplied to the accused. The Ld. Court also failed to consider the fact that the defence lawyer put a suggestion before the complainant in his cross examination dated 31.08.2015 saying that the complainant forcibly got exhibit-1 (Promissory note) executed by the accused. If this is the plea of the defence then the accused must have reported such fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless (a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. On going through the judgements of the learned Magistrate and the learned Session Judge, it is before this court that there is sufficient evidence to show that the cheque was duly issued and after completion of all formalities the proceedings under section 138 NI act was initiated. The learned Magistrate on considering the evidence before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the consideration did not exist, or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. Accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Section 118 and 139 of the NI Act, Uttam Ram v. Devinder Singh Hudan, (2019) 10 SCC 287. In Bir Singh vs. Mukesh Kumar (Criminal Appeals Nos. 230- 231 of 2019 the Supreme Court on 06.02.2019, held:- 21. In passing the impugned judgment and order dated 21-11- 2017, the High Court misconstrued Section 139 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f proof was however on the person who wanted to rebut the presumption. This Court held however, this presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act . 26. In Kumar Exports vs. Sharma Carpets (2009) 2 SCC 513 , this Court reiterated that there is a presumption that every negotiable instrument duly executed, is for discharge of a debt or liability, but the presumption is rebuttable by proving the contrary. In the facts and circumstances of the case it was found that the cheque in question was towards advance for purchase of carpets, which were in fact not sold by the payee of the cheque to the drawer, as proved from the deposition of an official of the Sales Tax Department, who stated that the payee had admitted that he had not sold the carpets. 27. In K.N. Beena vs. Muniyappan and Another (2001) 8 SCC 458, this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cheque had reported to the police and the bank that two unfilled cheques signed by him had been stolen. 31. The proposition as re-enunciated in John K John vs. Tom Varghese Anr. (2007) 12 SCC 714 cited on behalf of the respondent-accused that if two views are possible, this Court, in exercise of its jurisdiction under Article 136 of the Constitution would ordinarily not interfere with a judgment of acquittal, is well settled. 32. In the aforesaid case this Court affirmed an acquittal under Section 138 of the Negotiable Instrument Act, in the peculiar facts and circumstances of the case where several civil suits between the parties were pending. 33. In Krishna Janardhan Bhat vs. Dattatraya G. Hegde (2008) 4 SCC 54 , cited on behalf of the respondent accused, this Court reaffirmed that Section 139 of the Act raises a presumption that a cheque duly drawn was towards a debt or liability. However, keeping in view the peculiar facts and circumstances of the case, this Court was of the opinion that the courts below had approached the case from a wholly different angle by wrong application of legal principles. 34. It is well settled that a judgment is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. The supreme court in Criminal Appeal No. of 2022 @ SLP (Crl.) No(S) 5241 of 2016, Jain P. Jose versus Santosh Anr., on 10th November, 2022 while considering the presumptions under section 118 N.I Act and 139 N.I Act, held:- In the aforesaid factual background, we do not think that the High Court was right in holding that the onus was not on the respondent to show that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurity to a loan; the loan was repaid but the complainant did not, return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence. This decision, refers to an earlier judgment of this Court in Rangappa vs. Sri Mohan (2010) 11 SCC 441, which elucidating on the presumption under Section 139 of the N.I. Act, observes that this includes a presumption that there exists a legally enforceable debt or liability. However, the presumption under Section 139 of the N.I. Act is rebuttable and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. A recent decision of a three Judges Bench of this Court in Kalamani Tex and Another vs. P. Balasubramanian (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder revision is thus liable to be set aside. Sec 138 N.I Act provides for punishment of imprisonment for a term which may be extended to two years or with fine which may extend to twice the amounts of the cheque or with both. The Learned Magistrate while convicting the opposite party no. 1/accused has imposed the maximum fine amount permissible in this case, which in the interest of justice requires modification. The cheque amount was for an amount Rupees 2,60,000/- and the fine imposed is RS 5,20,000/- (exactly twice the amount) The case is of the year 2017. Five years have passed. Accordingly the amount of fine is modified to Rupees 4,00,000/- instead of Rs 5,20,000/- to be paid within two months from the date of this judgement, in default the accused shall serve out his sentence of imprisonment in default of fine. The Judgement dated 07.08.2019 passed by the Additional District Session Judge, 1st Fast Track Court, Calcutta in Criminal Revision no. 61/2018 is hereby set aside and judgment dated 31.07.2017 passed by the Ld. Metropolitan Magistrate, 3rd Court, Calcutta in Complaint case no. C-39853/2009, u/s 138 of the Negotiable Instruments Act, 1881, is hereby affi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
