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TMI Blog2024 (3) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... - THE HON BLE JUSTICE SHAMPA DUTT (PAUL) For the Petitioner (Legal Aid) : Mr. Satadru Lahiri, Mr. Safdar Azam, Mr. Syed Wasim Faruque, Mr. Jyotirmay Talukder. For the State : None. For the Opposite Party No. 2 : Mr. Aritra Bhattacharya. ORDER SHAMPA DUTT (PAUL), J.: 1. The present revision has been preferred against a Judgment and Order dated February 22, 2019 passed by the Court of the Learned Additional Sessions Judge, Raghunathpur at Purulia, in connection with Criminal Appeal No. 03 of 2017 thereby affirming the Judgment and Order dated July 19, 2017 passed by the Learned Magistrate, 1st Court, Raghunathpur, Purulia in C. Case No. 39 of 2006 under Section 138 of the Negotiable Instruments Act, 1881 and convicting the petitioner under Section 255(2) of the Code of Criminal Procedure, 1973 for Commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentencing the petitioner to suffer simple imprisonment for one year and to pay compensation of Rs. 10 lakhs to the Opposite Party no.2 within two months from the date of the Order, in default, to suffer rigorous imprisonment of further two months. 2. The petitioner s case is that on September 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption that the cheque has been drawn by the payee or holder in due course but it does not create any presumption that the cheque is backed by existing legal debt/liability. It is the duty of the prosecution to prove by way of cogent evidence that the cheque is backed by existing legal debt/liability. The onus of proof of liability is always with the Opposite Party no.2. Furthermore, the Learned Appellate Court has failed to consider that mere presumption is not substitute of proof and passed the impugned Judgment and Order wrongly and illegally. 9. It is further stated that several relevant witnesses have not been examined by the complainant thus causing prejudice to the petitioner/accused. 10. The case of the complainant in his petition of complaint is that:- He has been engaged in construction enterprise and considering his credibility and goodwill the local U.B.I. Raghunathpur Branch has provided him with a trade loan account bearing A/C No. 9. On 28.02.2006 the complainant along with witness Nos. 2 and 3 had been to U.B.I. Raghunathpur Branch and there the accused/petitioner met him and informed that he is in dire need of Rs. 7,00,000/- (Seven Lacs) only for a couple of months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 3/3 respectively. 17. The accused/petitioner proved documents relating to his hospital (Exhibit A B). 18. The petitioner on filing a written notes of argument has submitted that:- (i) The cheque from the account of Shilabati Hospital Pvt. Ltd. under the official seal of the company by its director was issued. (ii) Notice was issued against the petitioner alone and no notice to the company. (iii) Complaint was filed against the petitioner alone and the company has not been arraigned as accused. 19. It is further submitted that the Learned Courts ignored that the impugned proceeding is not maintainable in the teeth of legal bar of not implicating the drawer of the cheque as accused, in view of settled propositions of law. 20. It is also submitted that the Learned Magistrate has proceeded with the instant case in terms of Section 143 of Negotiable Instruments Act, 1881, i.e. Summary Trial. In terms of Section 326(3) of Code of Criminal Procedure, 1973, which is a mandatory provision, no conviction can be recorded by the Learned Magistrate on the evidences partly recorded by his predecessor and partly by him. 21. It is further stated that: a) The Company Shilabati Hospital Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque as Director of the company, for and on its behalf. 29. The Supreme Court in Himanshu vs. B. Shivamurthy Anr. (Supra) held:- 11. In the present case, the record before the Court indicates that the cheque was drawn by the appellant for Lakshmi Cement and Ceramics Industries Ltd., as its Director. A notice of demand was served only on the appellant. The complaint was lodged only against the appellant without arraigning the company as an accused. 12. The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. 13. In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. [ ] 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. (emphasis supplied) The above view was recently reiterated by a three-Judge Bench of this Court in Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283. 15. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under Section 139. 16. In Anss Rajashekar v. Augustus Jeba Ananth, (2020) 15 SCC 348, a two Judge Bench of this Court, of which one of us (D.Y. Chandrachud J.) was a part, reiterated the decision of the three Judge Bench of this Court in Rangappa v. Sri Mohan, (2010) 11 SCC 441, on the presumption under Section 139 of the NI Act. The court held: 12. Section 139 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise the principles enumerated by this Court in following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. 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. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence. 13. It can thus be seen that this Court has held that once the execution of cheque is admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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