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TMI Blog2024 (2) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Though the petitioner/ accused/ convict, in cross-examination of complainant C.W.-1, this question was put up that no income tax return was filed by the complainant; but the same fact is not rebutted by the accused/ convict/ petitioner by adducing evidence in rebuttal. The Hon ble Apex Court in the case of Oriental Bank of Commerce Vs. Prabodh Kumar Tewari [ 2022 (9) TMI 264 - SUPREME COURT ] held that drawer of a cheque is liable even if details of the cheque was filled by some other person in writing; the experts opinion cannot rebut the presumption under Section 139 of the N.I. Act. The Hon ble Apex Court in the case of Yogesh Jain Vs. Sumesh Chandra [ 2022 (10) TMI 1198 - SUPREME COURT ] held that once the cheque is issued and upon getting dishonored statutory notice is issued, it is accused to dislodge the legal presumption available under Section 118 and 139 of the N.I. Act. In order to rebut both these presumptions on behalf of the convict petitioner, no oral or documentary evidence was adduced. The only defence, which has been taken by the petitioner-convict during trial was that the cheques were issued in good faith because of friendship of him with the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er person. When the complainant made demand to refund the money, he issued two cheques each of Rs. 10 lakhs dated 06.03.2014 and 08.03.2014 bearing cheque Nos. 610799 and 610800 respectively. The complainant presented both the cheques for encashment in the account of Bank of India, Hazaribag but both the cheques were returned dishonored on 27.03.2014 on account of insufficient funds in the account of the drawer of the cheques. The complainant sent the legal notice to the accused on 07.04.2014. On 30.04.2014, the petitioner-accused asked to the complainant why the legal notice was sent to him, on which, he further promised to return the said amount of the cheque by 07.05.2014. Still the accused failed to comply his promise then the complaint petition was filed against the petitioner-accused. 3. The complainant filed affidavit under Section 200 of the Code of Criminal Procedure, on the basis of the same, the accused Rakesh Kumar Sinha was summoned for the offence under Section 138 of the N.I. Act. 4. The substance of accusation was recorded of the accused Rakesh Kumar Sinha under Section 251 of the Code of Criminal Procedure by the learned trial Court and the same was explained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged liability and the learned trial Court relied upon the oral testimony of the complainant. Neither the alleged cheques were issued by the petitioner-convict nor the said cheques were filled by him. The learned Court below raised the presumption under Section 139 of the N.I. Act in a wrong way. The complaint was also filed after lapse of statutory period, as such, the complaint should have been dismissed by the learned Courts below. In view of the above, prayed to allow this Criminal Revision and set aside the impugned judgment of conviction and the order of sentence passed by the learned trial Court, which was affirmed by the learned Appellate Court. 10. I have heard the learned senior counsel assisted by the learned counsel for the petitioner, learned APP for the State and learned counsel for the opposite party No. 2 and perused the materials available on record. 11. For the disposal of this Criminal Revision, one point of determination is being framed: (i) Whether complaint filed by the complainant was not legally maintainable? 12. Learned senior counsel for the petitioner-revisionist has contended that the cheques were never issued by the petitioner for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiable instrument was made before its maturity; (e) as to order of indorsements: that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp: that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course: that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 14.2 Section 138 of the Negotiable Instruments Act, 1881 reads as under: Section 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 return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a complaint within such period; (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction, (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. 15. As per the allegations made in the complaint petition, two cheques were issued by the petitioner-convict in favour of the complainant- opposite party No. 2 for the liability of payment of amount of Rs. 20 lakhs, which were given by the opposite party No. 2/ complainant to the petitioner-convict for executing sale deed in his favour in regard to the land. 15.1 On behalf of complainant/ respondent in documentary evidence filed two original cheques i.e. Cheque No. 610799 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n memo from the concerned bank for both the cheques, the complainant had issued the notice to the accused on 07.04.2014, as such, the same is also within 30 days in view of the proviso (a) of Section 138 of the N.I. Act and this notice was received by the accused on 10.04.2014 as evident from Exhibit-5 and the accused failed to make the payment in compliance of the notice within 15 days from the date of receipt of notice by 24.04.2014 in view of the proviso (c) of Section 138 of the N.I. Act. The cause of action to file the complaint arose to the complainant on 24.04.2014 and the complaint should have been filed within thirty days from the date of arising cause of action to file the complaint, which has arose in view of the proviso (c) of Section 138 of the N.I. Act and in view of sub clause 1(b) of Section 142 of the N.I. Act and this complaint was filed by the complainant on 15.05.2014, as such, the complaint was also filed within prescribed period of 30 days from the date of arising cause of action to file the complaint. 15.5 In view of the oral examination of complainant C.W.-1 and the documentary evidence filed on behalf of him, the prosecution case is proved beyond reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fense whether cheque was issued towards payment of a debt or in discharge of a liability. 16.1 The Hon ble Apex Court in the case of Yogesh Jain Vs. Sumesh Chandra reported in 2022 Live Law (SC) 879 held that once the cheque is issued and upon getting dishonored statutory notice is issued, it is accused to dislodge the legal presumption available under Section 118 and 139 of the N.I. Act. Relevant paragraph reads as under: 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 resply of the N.I. Act. Whether the cheque in question had been issued for a time barred debt or not, itself prima facie, is a matter of evidence and could not have been adjudicated in an application filed by the accused under Section 482 of the CrPC. 16.2 The Hon ble Apex Court in the case of Jain P. Jose Vs. Santosh reported in 2022 Live Law (SC) 97 9 held that the presumption under Section 139 includes presumption that there exists legally enforceable debt or liability. However, the presumption is rebuttable and it is open to the accused to raise defence. Relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 17. In order to rebut both these presumptions on behalf of the convict petitioner, no oral or documentary evidence was adduced. The only defence, which has been taken by the petitioner-convict during trial was that the cheques were issued in good faith because of friendship of him with the complainant. This suggestion was also given that in regard to sale of the land, no document was executed and there was no alleged liability for issuance of cheques. To this effect, on behalf of the petitioner-convict, no evidence has been adduced to rebut both the presumption sunder Sections 118 and 139 of the N.I. Act and also the evidence adduced by the complainant oral and documentary even on the touchstone of preponderance of probabilities. The statement of the petitioner-convict was also recorded by the learned trial Court, in which, he denied the complaint case and simply t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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