9911796707
TMI Blog2024 (3) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... RT] while discussing the legal position as regards the nature of presumption that arises under Section 139 of the NI Act and the standard of proof required to rebut such presumption, observed 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. From a perusal of the afore-quoted observations of the Supreme Court, it is clear that once a presumption arises in terms of Section 139 of the NI Act on the basis of the facts proved on record, the person against whom presumption is drawn is not precluded from rebutting it and proving the contrary. It is also clear that the rebuttal does not have to be conclusively established but the person against whom the presumption has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution have been examined. It is a settled law that the incriminating circumstances, regarding which no explanation has been called from the accused, cannot be used against him while deciding veracity of the accusation against him. The evidence which has not been put to an accused has to be eschewed from consideration. Therefore, the evidence, as regards service of demand notice upon the respondent/accused having not been put to him, cannot be taken into consideration while deciding the veracity of the accusations against him. If the drawer of the cheque pays a part of whole of the sum between the period the when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque. Therefore, unless the part payment is endorsed on the cheque as per the Section 56 of the NI Act, the complaint under Section 138 of NI Act would not be maintainable once part payment is made by the accused - even if the contention of the learned counsel for the appellant that payment of Rs. 2,10,000/- by the accused to the appellant is not sufficiently proved, still then in the absence of endorsement on the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K Cr.P.C. was recorded. In his statement recorded under Section 242 of J K Cr. P.C., the respondent/accused, while admitting issuance of the cheques as also his liability to the tune of Rs. 2,88,000/-, submitted that he had asked the complainant/appellant to wait for 5/7 days but the complainant/appellant held up his vehicle, whereafter he paid an amount of Rs. 50,000/- to him in presence of SHO, Chanderkote, DW-Diljit Singh. He also stated that a further amount of Rs. 2.00 lacs was paid by him to the complainant/appellant after withdrawing the same through ATM. According to the accused, the SHO had assured him that the complainant would return the cheques, but instead of doing so, he filed a complaint against him. 04. The complainant besides examining himself as a witness also examined PW-Mohd Yaqoob, Assistant Manager JK Bank Batote and PW- Gourav Verma, Post Master in support of his case. The learned trial court did not record the statement of the accused under Section 342 of J K Cr.P.C. In this regard, it was observed by the trial court that there is no requirement of recording such statement. However, the accused/respondent, examined three witnesses, namely, DW-Safiq Ahmad, Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so not in dispute that the respondent had issued the cheques in question in favour of the appellant to discharge his liability towards him. The dishonour of the cheques on account of insufficiency of funds is also an admitted fact. The only question that remains to be determined is as to whether there was a compromise between the parties in pursuance whereof any payments were made by the respondent to the appellant. 09. Before referring to the evidence produced by the accused/respondent before the trial court so as to determine whether or not the accused has been able to prove his defence that he had paid the cheque amount or any portion of it to the appellant, it would be apt to notice the law as regards the manner in which an accused in a compliant under Section 138 of the NI Act is expected to discharge his burden to prove his defence. As already noted, the facts relating to issuance of cheques and dishonour of the cheques for insufficiency of funds are not in dispute, therefore, in terms of Section 139 of the NI Act, it has to be presumed that the appellant has received the cheques in discharge of whole or part of the debt or liability. However, the said presumption is rebuttab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used 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. 11. From a perusal of the afore-quoted observations of the Supreme Court, it is clear that once a presumption arises in terms of Section 139 of the NI Act on the basis of the facts proved on record, the person against whom presumption is drawn is not precluded from rebutting it and proving the contrary. It is also clear that the rebuttal does not have to be conclusively established but the person against whom the presumption has arisen, has to adduce such evidence in support of his defence that the Court may either believe the defence to exist or consider its existence to be reasonably probable. The standard of reasonability has to be that of a prudent person. 12. Adverting to the facts of the instant case, as has already been noted, the respondent/accused while making his statement under Section 242 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acs to the appellant but he is not retuning the cheques. He has stated that the appellant came to the Police Station and when he enquired from him about this and asked him as why despite receiving the payment, he is not returning the cheques, the appellant responded by stating that he has to recover bank interest from the accused. 15. The defence witnesses have also placed on record the statement of account pertaining to the accused, which clearly depicts withdrawal of the amount in the range of Rs. 10,000/- to 20,000/- during the period from 11th May to 17th May, 2016. According to the defence witnesses, they have paid an amount of Rs. 2.50 lacs to the appellant after withdrawing the same through ATM from the account of the accused, out of which Rs. 40,000/- was paid to the appellant on 11th May, 2016 and rest of the amount was paid upto 17th May 2016. These withdrawals, as are depicted in the statement of account of the accused, correspond to the statement made by the defence witnesses, DW-Shafiq Ahmad and DW-Mohd Amin, thereby lending credence to their statements in this regard. Thus, the defence of respondent/accused that he had paid the cheque amount to the appellant, even bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the Magistrate has to hear the complainant, take all such evidence as may be produced in support of the prosecution, hear the accused and take all such evidence as he produces in his defence. Section 245 Cr. P.C provides that if the Magistrate upon taking the evidence as referred in Section 244 Cr. P.C, finds that the accused is not guilty, he shall record an order of acquittal. 19. From the foregoing analysis of the provisions contained in Chapter-XX of the J K Code of Criminal Procedure, it is clear that a Magistrate while trying a summons case has to follow the following stages: (i) The particulars of the offences of which a person is accused have to be explained to him and he has to be asked to show cause as to why he should not be convicted. (ii) If the accused admits the offence, his admission has to be recorded, which shall be followed by his conviction. (iii) If no admission is made by the accused, the complainant has to be heard. (iv) All evidence that is produced in support of the prosecution has to be taken down. (v) The accused has to be heard. (vi) All the evidence that may be produced by the accused in defence has to be recorded. (vii) Accused has to be examined, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to enable him to explain the circumstances appearing in the evidence against him; and if it had not been for the provisions of section 364, it would be perfectly correct if the Magistrate, in trying a summons case, in which he has not to take down the evidence, simply recorded the fact that the accused had been questioned under section 342 22. Thus, from the aforesaid analysis of law on the subject, it is clear that even in a summons case, it is mandatory for a Magistrate or a Court to put the incriminating circumstances appearing in the prosecution evidence to the accused and record his statement under Section 342 of the Cr. P.C. 23. A contrary view has been taken by the High Court of Andhra Pradesh in the case, titled, K. Vidyanand vs. Erramma and ors., AIR 1962 AP 394. In the said judgment, a Single Judge of the Andhra Pradesh High Court has taken the view that the procedure prescribed under Chapter-XX of the old code does not contemplate recording of statement of the accused after prosecution evidence, as such, it is not mandatory to record such statement of the accused in a summons trial case. I respectfully beg to differ with the view expressed by the High Court of Andhra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im. Had this incriminating circumstance been put to the accused/respondent, he may have come up with a suitable response to the same but because it has not been put to him either at the time of recording his statement under Section 242 Cr. P.C or at a later stage, the said circumstance cannot be used against him. No adverse inference can, therefore, be raised against the respondent/accused for not having responded to the demand notice. 27. Another argument that has been raised by the learned counsel for the appellant is that there is no cogent evidence on record, at least, to the extent of payment of an amount of Rs. 2,10,000/-to the appellant by the accused as this part of transaction has not taken place in the Police Station. It has been urged that it cannot be stated that the respondent had discharged his full liability in respect of the cheque amount to the extent of Rs. 2,50,000/-. 28. Even if the aforesaid contention of the learned counsel for the appellant is accepted still then there is enough material on record to show that the appellant has received Rs. 40,000/- from the accused through his wage mates and it is only upon payment of the said amount that the complainant/app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od the when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque. Therefore, unless the part payment is endorsed on the cheque as per the Section 56 of the NI Act, the complaint under Section 138 of NI Act would not be maintainable once part payment is made by the accused. 30. In view of the aforesaid legal position, even if the contention of the learned counsel for the appellant that payment of Rs. 2,10,000/- by the accused to the appellant is not sufficiently proved, still then in the absence of endorsement on the cheques regarding receipt of Rs. 40,000/-, the complaint could not have proceeded. 31. In view of the foregoing discussion, this Court is of the considered view that the accused/respondent has succeeded in probablizing his defence so as to rebut the presumption that had arisen in favour of the appellant/complainant. The view taken by the learned trial court is definitely a passible one, as such, this Court does not find any ground to interfere in the impugned judgment passed by said court. The appeal lacks merit and is dismissed accordingly. 32. The record of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
