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TMI Blog2023 (9) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... de that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. The legal presumption in regard to the issuance of the cheque and also the legally recoverable debt or liability, in view of the evidence adduced on behalf of the complainant to prove the complaint case, the burden of proof which was shifted upon the accused to rebut this presumption of liability of Section 118 and 139 of N.I. Act shifted on the accused but the same has not been discharged at all. The accused has taken the defence under Section 313 Cr.P.C. but has not produced himself in evidence there being no evidence, the compliant case is found proved beyond all reasonable doubt on behalf of the complainant. The finding recorded by the learned trial court as well as the learned appellate court holding the appellant guilty for the offence under Section 138 N.I. Act is not based on any perversity and both the judgments passed by the trial court and appellate court needs no interference and the same are affirmed. Accordingly, this criminal r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the dishonour of the said cheques but the accused told the complainant that he will not pay the said cheques amount and also threatened the complainant to face the dire consequences. The complainant sent legal notice through his Advocate on 6th August, 2017 but in spite of receipt of the notice, he did not make any payment till the date of filing of the complaint case. Hence, the complaint was made before the Magistrate concerned. 3. The accused was summoned by the court concerned for the offence under Section 138 of the N.I. Act. After the appearance of the accused, the substance of acquisition was stated to the accused by the Magistrate concerned under Section 251 Cr.P.C. which he denied and did not plead guilty, rather claimed to face the trial. 4. In documentary evidence adduced two original deposit slips as Exts. 1 and 2, Ext.4 is cheque bearing no. 000142 dated 8th July, 2017 of Bank of India, Harmu Branch, Ranchi for amount of Rs. 10,000/-. Ext. 3 is cheque bearing No. 000172 dated 10th July, 2017 of Bank of India, Harmu Branch, Ranchi for amount of Rs. 7,50,000/-. Exts. 5 and 6 are return memo report dated 28th July, 2017. Ext. 7 is legal notice. Exts. 8 and 9 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial court as well as the learned appellate court had not appreciated the same. Accordingly, prayed to allow this criminal revision by setting aside the judgments passed by both the court below and to acquit the petitioner for the charge Section 138 of the N.I. Act. 12. I have heard the learned counsel for the parties and perused the materials available on record as also the finding recorded by the learned trial court and appellate court in the impugned judgment. 13. In order to decide the legality and propriety of the impugned judgment of conviction and sentence passed by the learned trial court and also the judgment passed by the learned appellate court, it would be pertinent here to reproduce here the oral and documentary evidence adduced on behalf of the complainant. 14. On behalf of the complainant to prove the substance of accusation against the accused, in oral evidence, adduced affidavit of complainant C.W. 1 Debu Prasad Banerjee under Section 145 of the N.I. Act, 1881 as examination-in-chief. This witness in his affidavit has stated that he and accused were well acquainted to each other. The daughter of the accused was suffering from serious mental disease and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the court. Tracking report has been filed on behalf of him. He denied the suggestion that these cheques were in custody of Sanjay Oraon. 15. Ext.1 is the original deposit slip of Chque No. 000142 dated 8th July, 2017 of Rs. 10,000/- on 27th July, 2017 before the State Bank of India, P.B.B. Branch, P.O. Compound, Ranchi. Ext.2 is also the original deposit slip of Cheque No. 000172 dated 10th July, 2017 of Rs. 7,50,000/- on 27th July, 2017 before the State Bank of India, P.B.B. Branch, P.P. Compound, Ranchi. These two cheque deposit slips have been proved the complaint and on this point no cross-examination was made on behalf of the accused. Ext. 3 is the Cheque No. 000142 dated 8th July, 2017 of Rs. 10,000/- issued in favour of Debu Prasad Banerjee and signature thereon is of Biglal Oraon and Ext. 4 is the cheque No. 000172 dated 10th July, 2017 of Rs. 7,50,000/- and same was also issued in favour of Debu Prasad Banerjee. It is also signed by the drawer of cheque, namely, Biglal Oraon and these cheques are of Bank of India, Harmu Branch, Ranchi, Jharkhand. The signature on both these cheques are not denied by the accused, rather it has been stated that these cheques were given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon him. 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 4 [a term which may be extended to two years ], or with fine which may extend 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. 17. From the rival submissions made by the learned counsel for the parties, the point for determination for disposal of this criminal revision is being framed hereunder :- i. Whether both the cheques in question were issued for legally recoverable debt or other liability ? 18. Admittedly both the cheques were signed by the accused Biglal Oraon and the amount mentioned in both the cheques is also not disputed. Only dispute is in regard to the liability for which both the cheques are alleged to be issued by the accused. On behalf of the complainant, it has been submitted that since the daughter of the accused was suffering from serious mental disease he demanded Rs. 10 lacs from the complainant and the complainant arranged the said amount being a good friend from his friends and well-wishers and given him the total amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the dishonoured cheque from the date of receipt of the notice. This notice was received by the accused on 7th August, 2017 and 15 days were completed on 22nd August, 2017 and from 22nd August, 2017 the complaint should be filed within 30 days in view of Section 142(1)(b) of the N.I. Act. As such the complaint was also filed within time. This complaint was lodged on 29th August, 2017 as such the complaint was filed within 30 days from the date of arising of cause of action not complying the notice dated 22nd August, 2017. 22. Section 139 of the N.I. Act is in regard to presumption of liability, wherein it is provided that it shall be presumed unless the contrary is proved that the holder received the cheque of the nature referred to in Section 138 of the N.I. Act for discharge in whole or in part of any debt or other liability. This legal presumption of liability is taken the moment the accusation of the cheque is admitted. The accused has admitted the signature on the cheque. The amount filled in the cheque is also not disputed, he disputed only the debt and the other liability. In view of Section 139 of the N.I. Act, the legal presumption is raised after issuance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been misused by the complainant is taken in his statement under Section 313 Cr.P.C but the accused did not muster courage to produce himself in defence evidence to rebut the presumption in regard to legally recoverable debt. The D.W.-1 Bhinsar Oraon is not in regard to legally recoverable debt or liability, therefore, the accused has not discharge burden of rebutting the legal presumption under Sections 118 and 139 of the N.I. Act. 27. The Hon ble Apex Court in the case of Yogesh Jain versus Sumesh Chadha reported in 2022 Livelaw SC 879 has held that once a cheque is issued and upon getting dishonoured a statutory notice is issued, it is for the accused to dislodge the legal presumption available under Sections 118 and 139 of the N.I. Act. 28. The Hon ble Apex Court in the case of Jain P. Jose versus Santosh Anr. reported in 2022 Livelaw SC 979 has also referred the case of T. Vasanthakumar Vs. Vijaykumari reported in (2015) 8 SCC 378, Rangappa vs. Sri Mohan reported in (2010) 11 SCC 441 and Kalamani Tex and Another vs. P. Balasubramanian reported in (2021) 5 SCC 283 and held that the presumption under Section 139 includes a presumption that there exists a lega ..... 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