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TMI Blog2024 (6) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... that the holder of the cheque received the cheque of the nature referred to in Section 138 of the N.I. Act for the discharge, in whole or part of any debt or liability. Admittedly, the petitioner had not lodged any information to Police about losing of his cheque. Such a plea was also not taken in his statement under Section 313 of the Cr.P.C. He had also not adduced any evidence in support of claim of the cheque being lost. On these counts a reasonable doubt arises about the veracity of the claim of the petitioner and as such the learned trial court and also the learned first appellate court had rightly disbelieved the version of the petitioner. In the instant case, the petitioner had not disputed the cheque in question and his signature thereon and as such, the statutory presumption under Sections 118 and 139 of the N.I. Act is very much available in all its plenitude and amplitude. The petitioner had failed to rebut such a presumption. Neither he appeared in the witness box to adduce evidence to rebut the statutory presumption, nor could he show any material available on the record, to rebut the presumption. This revision petition devoid of merit and accordingly, the same stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a legal notice to the petitioner, demanding the cheque amount vide Notice, dated 30.03.2010, within 15 (fifteen) days. But, the petitioner had failed to pay the said amount to the respondent No. 1 even after receipt of the said notice on 06.04.2010. Then the respondent No. 1/complainant had filed a Complainant Case, being N.I. Case No. 31/2010, against the present petitioner, under Section 138 of the NI Act, 1881 in the court of the Learned Chief Judicial Magistrate, Cachar, Silchar. The petitioner on receipt of summon had appeared before the learned trial Court and then the learned trial court had explained the particulars of offence under Section 138 of the N.I. Act, to which the petitioner had pleaded not guilty and claimed to be tried. During the course of trial, the respondent No. 1/complainant had adduced as many as five witnesses in support of his case. After closing the evidence of the respondent No. 1, the learned trial court had examined the petitioner under section 313 of the Cr.P.C. The petitioner had also adduced one witness in support of his defence. Then hearing arguments of both sides and considering the materials available on record, the learned Additional Chief Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it appears from the Ext. 5 i.e., the Acknowledgement Card that it was received by one Supriti Debnath, but the complainant/respondent No. 1 had failed to establish any relationship between the petitioner and said Supriti Debnath, but the learned courts have failed to take note of the same; (vii) That, the learned courts below failed to appreciate that the complainant/respondent No. 1 had failed to establish that there was cash transaction between the complainant and the petitioner. Moreover, the complainant/respondent No. 1 in his deposition has not stated anything about the date and time of the alleged transactions and had failed to prove the existence of any lawful debt and in absence of any existing lawful debt the petitioner ought not to have been held guilty for an offence under Section 138 of the N.I. Act; (viii) That, there was contradiction in the evidence of P.W. 2 but the same was not considered by the learned courts below; (ix) That, the learned courts below had failed to appreciate the contradictory evidence of P.W. 3 i.e., Sadhanya Choudhury and of P.W. 4 Sri Pradip Paul, the Senior Manager, UCO Bank, Silchar Branch and the D.W. 1 i.e., Sri Mohan Lal Goswami, the Seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any legally enforceable liability of the petitioner; (iv) The respondent No. 1/complainant had failed to establish the source of income though he had reflected the amount in his income tax return; and (v) The learned trial court had failed to invoke the jurisdiction under Section 311 of the Cr.P.C. so as to examine the petitioner as well as that of Pankaj Sardha and Ranjit Debnath on its own motion for the purpose of arriving at the truth of the case. 5.1. Mr. Das has also referred following case laws in support of his submission:- (i) Krishna Janardhan Bhat vs. Dattatrya G. Hegde, reported in (2008) 4 SCC 54; (ii) Rangappa vs. Sri Mohan, reported in (2010) 11 SCC 441; (iii) Jose Pullen @ Joseph P vs. Uma Jasrasaria @ Agarwal Properitor of Kojani s Dhankheti, reported in 2011 (4) GauLR 9; (vi) ANSS Rajshekhar vs. Augustus Jeba Ananth, reported in (2020) 15 SCC 348; (vii) S. Murugan vs. M.K. Karunagaram, reported in SLP (Crl) No. 7618/2023; (viii) M.D. Thomas vs. P.S. Jaleel Anr., reported in (2009) 14 SCC 398; and (ix) Idder Ors vs. Aabida Anr., reported in (2007) 0 AIR (SC) 3029. 6. Whereas, Mr. D. Chakraborty, the learned counsel for the respondent No. 1 submits that there is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere that the learned trial court in the impugned judgment and order had identified following points for determination :- (i) Whether the accused person, in order to discharge his liability in whole or in part, had issued the cheque bearing No. 254228, dated 12.09.2009, drawn on UCO Bank, Silchar Branch, Cachar, for an amount of Rs. 5,00,000/- to the complainant? (ii) Whether the said cheque No. 254228 issued by the accused to the complainant was dishonored by the Assam Gramin Vikash Bank, Cachar, Silchar Branch, which is the banker of the complainant, due to insufficiency of fund after it was deposited within its validity? (iii) Whether the complainant had sent demand notice to the accused within 30 days on receipt of the information that the cheque issued by him had been dishonored due to insufficiency of fund for the amount of Rs. 5,00,000/- in total? (iv) Whether the accused failed to pay back the amount within 15 days of receipt of the demand notice? (v) Whether the accused is liable to be punished under Section 138 of the N.I. Act and any other reliefs that the complainant is entitled to? 10. Thereafter, considering the evidence so adduced before it and also hearing arguments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability. The expression unless the contrary is proved indicates that the presumption under Section 139 of the N.I. Act is rebuttable. Terming this as an example of a reverse onus clause the court held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the N.I. Act is guided by preponderance of probabilities. 15. It is further held that:- 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused to raise defence wherein the existence of the legally enforceable debt or liability can be contested. If the accused is able to raise a probable defence, which creates doubt about the existence of legally enforceable debt or liability, the onus shifts back to the complainant. Same proposition of law is echoed in the case of Rajesh Jain (supra) referred by Mr. Chakraborty, learned counsel for the respondent No. 1/claimant and also in the case of ANSS Rajshekar (supra) referred by Mr. A. Das, learned counsel for the petitioner, wherein the ratio of Rangappa (supra) has also been discussed. 18. Though, referring to a decision of Hon ble Supreme Court in Krishna Janardhan Bhat vs. Dattatraya G. Hegde, reported in (2008) 4 SCC 54, Mr. Das, learned counsel for the petitioner submits that existence of a legally enforceable debt is not a matter of presumption under Section 139 of the N.I. Act, but, the learned trial court had presumed existence of a legally recoverable debt, yet having examined the finding of the learned trial court in the light of the facts and circumstances on the record, I find that no contrary view has been taken by the learned court below. It is to be not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about losing of his cheque. Such a plea was also not taken in his statement under Section 313 of the Cr.P.C. He had also not adduced any evidence in support of claim of the cheque being lost. On these counts a reasonable doubt arises about the veracity of the claim of the petitioner and as such the learned trial court and also the learned first appellate court had rightly disbelieved the version of the petitioner. The learned first appellate court also observed that the petitioner did not adduce sufficient evidence to prove about the cheque being lost by him. The cheque was dated 12.09.2009 and the petitioner had informed his banker to stop payment only on 24.02.2010 and that there was no averment from where and when the cheque was lost and even a suggestion was also not put to the respondent that the name and other figures in the cheque was not of his hand writing and that he also failed to give any explanation as to why he took five months to intimate the Bank and also he could not explain as to why he put his signature over the Cheque and on such count the plea of the petitioner is not sustainable. The learned first appellate court also relied upon the decision of K. Bhaskaran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC 234 , wherein it has been held that- ..The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139, the Court has to presume that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the stop payment instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused . 23. Here in this case, the petitioner has failed to establish that there was sufficient fund in his account so as to honour the cheque. That being so, the presumption, as held in the case of Medchl Chemicals Pharma (P) Ltd. (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the GC Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address. 15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the court to draw presumption or inference either under Section 27 of the GC Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, not fault can be found with the finding of the learned trial court, when it had placed reliance upon the decision of C.C. Alavi Haji (supra) and drawn presumption of service of notice under Clause (b) of Section 138 of the N.I. Act, as the legal notice, Exhibit-4, was sent well within time, in the proper address of the petitioner. The learned first appellate court also found that presumption of service of notice is available and recorded agreement with the finding of the learned trial court. It is worth mentioning in this context that the petitioner in his examination under Section 313 Cr.P.C. in his answer to the question No. 1, in no uncertain terms admitted that he received the notice from the complainant , though subsequently he had denied the same. 30. That, as regard the submission of Mr. Das that the learned trial court had failed to invoke the jurisdiction under Section 311 Cr.P.C., so as to examine the petitioner as well as that of Pankaj Sardha and Ranjit Debnath on its own motion for the purpose of arriving at the truth of the case; this Court finds no merit in the same as it was the primary duty of the petitioner to rebut the statutory presumption available under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not advance the case of the petitioner. It is to be noted here that in the said case Hon ble Supreme Court has held as under:- There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. 34. That being so, the findings, so recorded by the learned trial court as well as learned first appellate court in the impugned judgments and order, in the light of given facts and circumstances on the record and also in the light of principle enunciated by the Hon ble Supreme Court in the cases discussed herein above, this Court is of the opinion that no impropriety or illegality is committed by the learned trial court as well as the learned first appellate court in deciding the complaint case, being N.I. Case No. 31/2010 and the Criminal Appeal No. 45/2017. 35. Thus, having carefully considered the submission of Mr. Das, the learned counsel for the petitioner and also having gone through the case laws referred by him, I find his submission devoid of mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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