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TMI Blog2019 (4) TMI 2161X X X X Extracts X X X X X X X X Extracts X X X X ..... nt before State Bank of India, Branch, Kala Amb, but the same was dishonoured on the ground of insufficient funds in the account of the accused. The cheque was returned vide memo, dated 10.11.2010, from Punjab National Bank, Karnal. A legal notice dated 19.11.2010 was sent to the complainant on two addresses. The accused received the notice on one of the address, but failed to make the payment within stipulated period, and hence, the present complaint under Section 138 of the Negotiable Instrument Act, (hereinafter, referred to as, "the Act") was preferred by the complainant against the accused. 3. The complainant led preliminary evidence, before the learned trial Magistrate, and, thereafter the accused was directed to be summoned, for, his committing, an, offence punishable, under, Section 138 of the Act. After securing the presence of accused, the learned trial Magistrate, put, notice of accusation, vis-à-vis the accused, for an offence, allegedly committed by her, under, Section 138 of the Negotiable Instrument Act, whereto, she pleaded not guilty, and, claimed trial. 4. The complainant, in substantiation of the complaint, hence examined three witnesses. On conclusion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon, the respondent/accused, upon, hers alluding to evidence, existing on record, and, hence, therefrom made a conclusion, qua the statutory presumption, embodied in Section 139 of the Negotiable Instrument Act, provisions, whereof stand extracted hereinafter, rather standing rebutted; "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 of the discharge, in whole or in part, of any debt or other liability." (i) and wherein an explicit voicing, hence occurs, qua the apt statutory presumption being leveraged, vis-à-vis, the, holder of a cheque, conspicuously, qua his being, hence presumed to be holding it, for, hence therethrough, the apt discharge in whole or in part of any debt or other liability, arising inter se the person, issuing it, and, the holder thereof, rather ensuing. However, the occurrence therein, of, the coinage "unless contrary is proved", rather, purveys the apt leeway and latitude, to the respondent/accused, or the person issuing it, to disprove or rebut the afore presumption. 10. The afore inference, and, conclusion, is rested upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereon, remained un-disputed. Whether, the afore-referred statutory presumption, bestowable, vis-à-vis, the complainant, hence works qua him or, whether hereat exists adequate rebuttal thereto evidence, is, the trite conundrum, besetting this Court. The apposite statutory important coinage, "unless contrary is proved", has immense import, and, relevance, for, determining, whether rebuttal or dis-proof, of, the afore statutory presumption, hence enjoins the respondent/accused, to lead cogent evidence, for hence his therethrough being construed to rather discharge, the, onus (v) or whether the latter part of Section 139 of the Act, leveraging, vis-à-vis, the holder, of, the Negotiable Instrument, a presumption, qua his holding it, in discharge of, in whole or in part of the liability, (vi) rather hence enjoins him, to also, adduce further cogent proof, hence, in consonance therewith. Necessarily, a plain reading of the coinage, "unless contrary is proved", as occurs, in the opening part of Section 139 of the Act, naturally renders it, to, galvanize a signification, (vii) qua the accused being statutorily injuncted to adduce, hence, evidence, whereupon he would rather, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter, bill comprised in Ext. CW 1/E, being prepared, and, the goods being transported to Karnal, rather being enjoined to be tested. The complainant was subjected, to, an incisive cross-examination, qua therewith, and, reading(s) thereof, hence unfold qua his being put suggestion(s) in the affirmative, qua the goods being dispatched, on 1.11.2010, to the respondents, and thereto, rather an affirmative echoing, emanated from him, (i) and also his, making a further echoing, qua his being equipped to prove the afore factum, from the requisite records, as brought thereat by him, and, before the Court concerned, records whereof remained un-inspected by the learned defence counsel. In sequel, the effects, of the afore affirmative echoing(s), emanating from CW-1, vis-à-vis, the affirmative thereto suggestion(s), being put to him, during the course of his cross-examination, rather remained un-alluded, to, by the learned trial Magistrate, nor the effect thereof, came to be fathomed, (ii) whereas, the afore echoing(s) make a vivid display, vis-à-vis, the afore goods being dispatched, at Karnal, by the complainant, (iii) and, rather merely qua the date of theirs being rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid reasons, the complainant had, apart from his holding, the, apt statutory leverage, sparked by his, holding the dishonoured negotiable instrument, qua it hence being issued to him, in satisfaction of part or in whole, of, the entire enforceable contractual liability, (x) rather had also remained un-scathed, during, the course of his cross-examination, as conducted by the learned defence counsel, (xi) wherein, suggestions, were put to him, wherethrough, the afore statutory presumption was rather unsuccessfully, strived to be rebutted, (xii) importantly, also, when a perusal of his exacting cross-examination, unfolds, qua all the apt rebutting suggestion(s), available, vis-à-vis, the erosion(s), hence befalling afore statutory presumption, being purveyed, to him, and, all coming to be denied, (xiii) and with Ext. CW 1/E placed on record, and it making articulation(s), qua the engagement, of, services of a transport company, by the complainant/firm, for therethrough the booked goods, being transported hence at Karnal, (xiv) thereupon, merely, for any suggestion, being put, to him, qua the date of its issuance, being incorrectly reflected as 26.10.2010, no initialed cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. It is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the presumption case in its entirety. Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with that on a defendant in a civil proceeding. Thus, only the accused is only required to discharge the initial onus of proof. He is not necessarily required to disprove the prosecution case. (xxi) it is mandated, that, the statutory presumption, cast in Section 139 of the Act, being rebuttable, through rearing, of, a probable defence, (xxii) the standards of proof, being preponderance of probabilities, and, therefrom he contends, that the suggestion(s), existing in the cross-examination, of, the complainant, rather being sufficiently, construable, to, (xxiii) constitute hence material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 7,93,538.90 within 15 days from the receipt of the notice, but the appellant did not specify against which liability the cheque in question was issued. If this notice is read with the statement of PW-1 S.s. Randhawa, it makes crystal clear that it is with respect of Bil Nos. 18-A and 20-A. After the remand of the case finding itself at a tight corner, in his statement dated 17.1.2001, Mr. S.S. Randhawa when re-examined, totally backed out from the earlier contentions made in the complaint and his statement and took U-turn that the disputed bills were Exts. A/3 and A/1 which are Bill Nos. 18 and 20 were alleged to have been purchased from M/s. Wadhawa Pharmochem Pvt. Ltd. for which they had paid 75% amount to the said concern and further that no payment to the extent of 75% qua the amount of Bill Nos. 18-A and 20-A were ever credited to their account and there was no distinct entry regarding the payment in their account. However, in his cross-examination conducted by the learned Counsel for the appellant-Bank, he stated that the letter Ext. P-12 was wrongly given by M/s. Wadhawa Pharmochem Pvt. Ltd., whereby they had made the reference of Bill Nos. 18-A and 20-A which was credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force of the afore suggestion, meted to the complainant, during, his cross-examination, and, it concluding qua, the statutory presumption, striven to hence therethrough, being belittled, rather suffering futility. Contrarily, when a complete connected, and, harmonious readings of paragraphs 12, 13 and 14, along with paragraph-15 of the judgment (supra) underscores, qua hence therefrom, no firm ratio-decidendi, rather emerging, nor in isolation rather paragraph-15 of the judgment (supra), (a) holding therein any omnibus, and, all prevailing clout in all situations, dehors, incisive readings being made, of, preceding thereto paragraphs 12, 13 and 14, (b) conspicuously, when hence isolated and fragmentary reading of paragraph-15, of the judgment would rather spark contradiction, vis-à-vis, the apt provisions, of the Negotiable Instrument Act, (c) wherethrough, the apt statutory presumption, is, abundantly, leveraged, vis-à-vis, the holder of the Negotiable Instrument, and, when the afore statutory presumption, enjoins adduction of rebuttal thereto evidence, by the accused, and, not by the complainant. 14. For the reasons which have been recorded hereinabove, this Court ..... 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