9911796707
TMI Blog2023 (9) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... gotiable Instruments Act. The impugned order of acquittal is thus erroneous in law as also in facts and is thus liable to be set aside. Considering the fact that the presumption under Section 139 N.I. Act goes in favour of the complainant unless and until rebutted by the accused in accordance with law, the principal of Natural Justice requires that the complaint case be remanded back to the trial court for retrial with the direction that the Learned Magistrate shall issue notice upon both sides and allow the parties to adduce fresh evidence in respect of the presumption under Section 139 N.I. Act by calling for the relevant documents and proving the same in accordance with law and provide sufficient opportunity to the accused/opposite parties to rebut the said presumption and proceed accordingly in accordance with law. Thus the findings of the Learned Magistrate is clearly against the provisions of Section 139 of the N.I. Act and thus not in accordance with law - Appeal allowed. - The Hon ble Justice Shampa Dutt ( Paul ) For the Appellant : Ms. Sayanti Santra For the State : Ms. Rita Datta For the opposite party : Mr. Santanu Talukdar. from legal aid O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- (Rupees four lakhs and eighty thousand only) drawn on the Bank of India, Baranagar Branch, Kolkata, duly signed by the opposite party/accused person as part payment in favour of the appellant. The aforesaid cheque on presentation for encashment within its validity period to the appellant s banker, namely, Indian Overseas Bank, Sonapatti Branch, Kolkata, was returned dishonoured with the remark Insufficient Funds dated 10.04.2010 and the said cheque along with cheque return memo of the opposite party s banker dated 16.04.2010 were duly received by the appellant s banker accordingly. Thereafter the appellant on several occasions demanded return of the aforesaid gold and/or money to that tune which the opposite party took from the appellant but the opposite party failed to return the said gold and/or make any payment. Finding no other alternative the appellant through its advocate sent a demand notice dated 19.04.2016 by registered post with A/D to the opposite party/accused persons demanding to effect the payment of the dishonoured cheque amount to the appellant within 15 days from the date of receipt of the said demand notice. In spite of receipt of the said notice the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posite party since those documents are in police custody in relation to another criminal case between the parties. The Learned Judge failed to consider the fact that a statutory presumption is available in law and illegally came to a finding of acquittal in favour of the opposite party herein is not in accordance with law. The impugned judgment and order is otherwise bad in law and is thus liable to be set aside. The following judgments have been relied upon by the appellant/complainant:- (i) T. Vasantha Kumar vs. Vijaya Kumari reported in (2015) 8 SCC 378. (ii) Rangappa vs. Sri Mohan reported in (2010) 11 SCC 441. (iii) Kalamani Tex Anr. vs. P. Balasubramanian reported in (2021) 5 SCC 283. (iv) Bir Singh vs. Mukesh Kumar reported in (2019) 4 SCC 197. 3. The Defence/Accused s case:- As the accused/respondent could not be traced, Mr. Santanu Talukdar, learned legal aid counsel was appointed to represent the accused. Mr. Talukdar submits that the judgment under appeal is in accordance with law and as such requires no interference by this Court. 4. Evidence:- P.W. 1 is the complainant and has reiterated the complaint case. Exhibit 2 is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to get an order of acquittal Sd/- 19th Metropolitan Magistrate, Calcutta From the said finding of the Magistrate, it is clear that the scope of Section 139 of the Negotiable Instrument Act has not been properly interpreted therein. In a proceeding under Section 138 N.I. Act, presumption is in favour of the Holder of the cheque and that such cheque had been issued in discharge of legal debt and/or liability, unless proved otherwise by the accused. In Oriental Bank of Commerce vs Prabodh Kumar Tewari, Criminal Appeal No. 1260 of 2022, on August 16, 2022, the Supreme Court held:- 13. Section 139 of the NI Act states: 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 part, of any debt or other liability. 14. In Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, after discussing the settled line of precedent of this Court on this issue, a two-Judge Bench held: 33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. This Court held thus: 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 accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. (emphasis supplied) 17. For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. It has been held that inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. In the present case, the Learned Trial Court failed to appreciate that the accused persons failed to adduce any evidence to discharge the onus placed upon them by the presumption in law available under section 139 of the Negotiable Instruments Act. Besides making a general denial of the fact that the cheque had been issued in discharge of legal debt and/or liability, the defence failed to adduce any evidence to rebut the presumption nor did it make out a case citing the reason for which the cheque can be held to have not been issued in discharge of legal debt and/or liability. In such circumstances, the Learned Trial Court, by considering the legal presumption available under Section 139 of the Negotiable Instruments Act to have been rebutted merely on denial made by the accused/respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
