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TMI Blog2024 (5) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... y not go in favour of the holder of the cheque, i.e. the complainant. Thus, it is evident that opposite party no. 2 had rebutted the presumption in light of the Section 139 of the N. I. Act. Therefore, this Court finds that no illegality has been committed by the learned Appellate Court below while coming to the conclusion that the petitioner had no financial capacity to pay loan amount to the opposite party no. 2 and thus, this Criminal Revision is devoid of merit - the criminal revision is dismissed. - HON'BLE MR. JUSTICE SANJAY PRASAD For the Petitioner : Mr. Shravan Kumar, Advocate For the State : Mrs. Amrita Kumari, A. P. P. For the O. P. No. 2 : None. JUDGEMENT The present Criminal Revision No. 482 of 2021 has been filed by the petitioner challenging the judgment dated 26.03.2021 passed in Criminal Appeal No. 178 of 2019 by the learned Additional Sessions Judge-II, Jamshedpur whereby learned Additional Sessions Judge-II, Jamshedpur has allowed Criminal Appeal No. 178 of 2019 filed by the Opposite Party No. 2 by setting aside the judgement of conviction and order of sentence dated 18.06.2019 passed by Ms. Darshana, learned Judicial Magistrate, 1st Class, Jamshedpur in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest, the accused-opposite party no. 2 had issued Cheque No. 858433 dated 25.01.2015 of Rs. 2,30,000/- in the name of the petitioner. However, when the said cheque was presented for encashment, then, it had returned vide Memo dated 10.02.2015 and thereafter the complainant had sent legal note by Registered Post, but the opposite party no. 2 has failed to repay the cheque amount to the complainant. It is submitted that the complainant had examined herself as C.W.-1 in this case and he has fully supported his case for advancing friendly loan of Rs. 2,30,000/- by him to the opposite party no. 2 and even though opposite party no. 2 had issued cheque of Rs. 2,30,000/- on 25.01.2015 in favour of the petitioner in discharge of her legal liability. It is submitted that the documents marked as Ext.-1, Ext.- 2, Ext.-3 and Ext.-4 and 4/1 respectively fully supported the case of the complainant petitioner, which were the cheque, return memo, legal notice dated 18.02.2015, post receipt dated 18.02.2025 etc. It is submitted that evidence of D.W.-1 Manorama Devi, D.W.-2, Indu Devi, D.W.-3, Priya Sharma and D.W.-4, Nutan Devi are not reliable. It is submitted that the learned Appellate Court belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d taken loan of Rs. 20,000/-/Rs. 30,000/- and had issued cheque, but it was converted into cheque amount of Rs. 2,30,000/- by the complainant- petitioner. It is submitted that even some criminal cases are pending against the petitioner, which have also been filed by the victim ladies against him. It is submitted that the learned Appellate Court below has rightly observed that the petitioner has no paying capacity to advance family loan to the extent of Rs. 2,30,000/-. Thus, no illegality has been committed by the learned Appellate Court below and hence, this Criminal Revision Application is devoid of merit and as such, this Criminal Revision Application may be dismissed. 6. Perused the Lower Court Records and considered the submission of both the sides. 7. None appeared on behalf of the Opposite Party No. 2, although notice was issued upon her. 8. It transpires that Complaint Case bearing C/1 Case No. 760 of 2015 had been filed by the complainant-petitioner in the Court of learned Chief Judicial Magistrate, Jamshedpur on 07.04.2015 against the opposite party no. 2 for initiating for taking cognizance for the offence under Section 138 of the N. I. Act that the opposite party no. 2 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the N. I. Act in connection with C/1 Case No. 760 of 2015 corresponding to T. R. No. 198 of 2019 and had been sentenced her to undergo S. I. for a period of three (3) months and has further directed to pay a sum of Rs. 2,50,000/- (Rupees Two Lac Fifty Thousand Only) by way of compensation to the complainant-petitioner under Section 357 (3) of the Cr. P. C. Thereafter, the learned Appellate Court has allowed the Criminal Appeal No. 178 of 2019 filed on behalf of the opposite party no. 2, by setting aside the judgement of conviction and order of sentence dated 18.06.2019 passed by Ms. Darshana, Judicial Magistrate, 1st Class, Jamshedpur and hence, this Criminal Revision Application has been filed by the complainant-petitioner. 15. From securitizing the Solemn Affirmation of C.W.-1 i.e. the complainant-petitioner, which was filed on affidavit in English, it would appear that he has filed even Solemn Affirmation in English stating about the case as made out in the complaint, although, the Court questions were put to him, but it is evident that learned Court below has committed grave illegality by taking Solemn Affirmation of the petitioner on an affidavit instead of examining him in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the people and for investing the money on lending by taking interest. He admitted for arrived in the Court on 07.04.2015 for filing an affidavit and for putting signature on affidavit in presence of her clerk. 18. Thus, securitizing the evidence of C.W.-1, Raju Thakur, i.e. the petitioner himself, it is evident that he is involved in the business of money lending and for taking blank cheque from the people and had obtained blank cheques from the opposite party no. 2, Manorama Devi, but has also Priya Sharma, Nutan Devi. As per his own case, he has given friendly loan of Rs. 2,30,000/- to the opposite party no. 2, Manorama Devi and friendly loan of Rs. 3,80,000/- to Priya Sharma and has also obtained cheque from Nutan Devi, which is kept in his house. Thus CW-1, Raju Thakur appears to be the Moneylender and has obtained blank cheques from the several ladies including opposite party no. 2. 19. So far as the defence evidence is concerned, D.W.-1, Manorama Devi is the opposite party no. 2 in this case herself, and has stated during her evidence that the petitioner used to give money on interest to several ladies namely Nutan Devi, Priya Sharma, Savita Devi, Vanmalai Tudu and several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that opposite party no. 2 had taken friendly loan of Rs. 20,000/- from the complainant and in lieu of the same, the complainant had obtained a blank cheque with the signature of the opposite party no. 2, which was misused by him by filing this case. She further stated that opposite party no. 2 had returned the said Rs. 20,000/- to the complainant with interest, but her cheque was not returned on the ground that the same is missing in his house. She also stated that the complainant had instituted several cases through different person upon the women of her muhulla and opposite party no. 2 had already returned the amount to the opposite party no. 2. During cross-examination, she stated that monetary transaction was done during her presence and they used to give cheque to the complainant and even a Card was prepared for money transaction and Rs. 1,500/- was deposited weekly and Rs. 30,000/- was obtained in lieu of Rs. 20,000/-. She has further stated that the Card was kept by the Raju Ji i.e. the complainant-petitioner and they simply used to handover the money to him. Even after returning the money, cheque was not returned to her by assuring that cheque will be returned within 4-5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further stated that she has also instituted a case against the complainant and she was present at the time of monetary transaction between the petitioner and the opposite party no. 2, Manorama Devi. She further stated that Manorama Devi had handed over the blank cheque with her signature to the petitioner. She further stated that the complainant had paid money to twenty women and he had cheated all the women. She further stated that the petitioner had instituted the case Priya Sharma, Manorama Devi i.e. the opposite party no. 2, Bindu Jha and she had also instituted a case against the complainant-petitioner. 26. Thus, from scrutinizing the evidence of D.W.-4, Nutan Devi, it is evident that she has fully supported the case of D.W.-1, Manorama Devi i.e. opposite party no. 2. It is also evident that she has also corroborated the evidence of D.W.-1, Manorama Devi, D.W.-2, Indu Devi and D.W.-3, Priya Sharma respectively. 27. It further transpires that although there is own admission of opposite party no. 2 for handing over the blank cheque to her signature to the complainant-petitioner, but she has fairly stated and admitted for taking loan of Rs. 20,000/- and which was returned in twe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct. Para-23:- An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Para-25:- Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities . Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. Para-26:- A statutory presumption has an evidentiary value. The question as to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt observed thus: . The presumption of innocence is a human right ( See Narendra Singh v. State of M.P., Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Rajesh Ranjan Yadav v. CBI .) Rights Article 6(2) of the European Convention on Human provides: Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused's rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. ... (Emphasis added) In paragraph 45 the Apex Court held thus: 45. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 138 of the said Act. The alleged debt cannot be said to be a legally recoverable debt. Para-15:- The Apex Court has held that the laws relating to the said Act are required to be interpreted in the light of the object intended to be achieved by it despite there being deviation from general law. The Apex Court expressed that the object of section 138 of the said Act was to ensure that commercial and mercantile activities are conducted in smooth and healthy manner. The explanation to section 138 of the said Act clearly provides that a debt or other liability referred to in section means a legally enforceable debt or other liability. The alleged liability to repay an unaccounted cash amount admittedly not disclosed in the Income Tax Return cannot be a legally recoverable liability. If such liability is held to be a legally recoverable debt, it will render the explanation to section 138 of the said Act nugatory. It will defeat the very object of section 138 of the Act of ensuring that the commercial and mercantile activities are conducted in a healthy manner. The provision of section amount. A cheque 138 cannot be resorted to for recovery of an unaccounted issued in discharge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not even aware when exactly and where exactly the transaction took place for which the cheque came to be issued by the appellant. Apart from the said serious lacuna in the evidence of the complainant, he further admitted as PW 1 by stating once in the course of the cross-examination that the cheque was in the handwriting of the accused and the very next moment taking a diametrically opposite stand that it is not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him. 37. It has been held in the case of Lekh Raj Sharma Versus Yash Pal Gupta passed in Crl. L. P. No. 567 of 2014 vide judgment dated 30.06.2015 by Delhi High Court that cheque amount is not legally enforceable debt at para-21, 22 and 27 as follows:- Para-21:- The finding that, as the amount of loan disbursed to the respondent was not shown in the balance sheet and ITR, the appellant could not be said to have proved its case beyond reasonable doubt, is also erroneous. In this regard, reference may be placed on the decisions of the Bombay High Court in: i) Deelip Apte vs. Nilesh P. Salgaonkar Anr., 2006 (6) BomCR 653 , wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such amounts becomes irrecoverable. At the cost of repetition, for saying that an amount not disclosed in income tax returns cannot be legally recoverable liability, some provisions of law to that effect would have to be shown. Such provision was not noticed by me and even the learned Counsel for the respondent could not show any such provision to me. (Emphasis Supplied) Para-22:- Similarly, in the present case, the loan given by the petitioner was a friendly loan for the business of the accused-respondent, in the background that they had known each other for about 40 years. It was payable in a short period of time. Thus, I do not find any merit in the submission of the respondent that since the name of the accused-respondent has not been shown in the balance sheet, or the amount had not been disclosed in the ITR, it stands established that the loan was not disbursed by the appellant. Para-27:- The accused is obliged to set up a probable defence. The defence cannot be only a possible defence. It cannot be premised on the mere ipse dixit of the accused. There should be some credible material or circumstance available on record which should lead the Court to conclude that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. Para-14:- S.B. Sinha, J. in M.S. Narayana Menon v. State of Kerala [M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 : (2006) 3 SCC (Cri) 30] had considered Sections 118(a), 138 and 139 of the Act, 1881. It was held that presumptions both under Sections 118(a) and 139 are rebuttable in nature. Explaining the expressions may presume and shall presume referring to an earlier judgment, the following was held in para 28: (SCC p. 49) 28. What would be the effect of the expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Para-22:- Elaborating further, this Court in Rangappa case [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant-accused cannot be expected to discharge an unduly high standard of proof. In paras 27 and 28, the following was laid down: ( Rangappa case [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] , SCC pp. 453-54) 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of liti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s below: 1. The accused is a very good friend of the complainant. The accused requested the complainant a hand loan to meet out urgent and family necessary a sum of Rs 6,00,000 (Rupees Six lakhs) and on account of long standing friendship and knowing the difficulties, which is being faced by the accused the complainant agreed to lent hand loan to meet out the financial difficulties of the accused and accordingly the complainant lent hand loan Rs 6,00,000 (Rupees Six lakhs) dated 27-2-2012 in favour of the complainant stating that on its presentation it will be honoured. But to the surprise of the complainant on presentation of the same for collection through his bank the cheque was returned by the bank with an endorsement Funds Insufficient on 1-3-2012. Para-29:- Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in his examination-in-chief regarding date on which loan was given on one side and what was said in cross-examination in other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply to the notice denying the execution of cheque or legal liability. Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished that the complainant had not declared that he had lent Rs. 3 lakh to the accused. It further established that the agricultural income also was not declared in the Income Tax Returns. Para 30:- The learned Trial Court further found that from the income which was shown in the Income Tax Return, which was duly exhibited, it was clear that the complainant(s) did not have financial capacity to lend money as alleged. Para 39:- In the present case, we are of the considered opinion that the defence raised by the appellant satisfies the standard of preponderance of probability . Para 41:- In that view of the matter, we are further of the considered view that the High Court was not justified in reversing the order of acquittal of the appellant. 40. It has been held in the case of Rajaram S/O Sriramulu Naidu (Since Deceased) through L.RS. Versus Maruthachalam (Since Deceased through L. RS. Reported in 2023 LiveLaw (SC) 46 at para-20 as follows:- Para-20:- After analyzing all these pieces of evidence, the learned Trial Court found that the Income Tax Returns of the complainant did not disclose that he lent amount to the accused, and that the declared income was not sufficient to give loa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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