TMI Blog2023 (4) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... ary course of business - In the judgment of the Apex Court in the case of M/S. AJEET SEEDS LTD. VERSUS K. GOPALA KRISHNAIAH [ 2014 (8) TMI 464 - SUPREME COURT] , the Apex Court has held that absence of averments in the complaint about service of notice upon the accused is the matter of evidence. In view of the settled legal position, it is clear that at this stage, only a prima facie case is to be seen and the complaint cannot be thrown at the threshold and the factum of disputed service of notice requires adjudication on the basis of evidence and the same can only be done and appreciated by the trial court. All the submissions made by learned counsel for the applicant is disputed questions of fact. Therefore, when the facts have to be established by way of evidence, this Court while exercising the powers under section 482 of Cr.P.C., cannot interfere with such proceedings. Hence, no grounds are made out for quashing of the proceedings under section 138 of the Negotiable Instruments Act. This Court finds that there is no illegality or infirmity in the summoning order dated 21.01.2021 passed by the concerned court below - application dismissed. - Application U/S 482 No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present compliant has been filed on 07.05.2019. Subsequently, the learned Magistrate after recording the statement under Sections 200 and 202 Cr.P.C. summoned the applicant vide order dated 21.01.2021, under Section 138 of the Act. 4. Learned counsel for the applicant submits that though, the opposite party no. 2 has sent a notice dated 10.04.2019, but the service of notice has not been effected and therefore, the complaint which has been filed on 07.05.2019, is not maintainable as the time period of 15 days cannot be calculated as to when the notice has been given to opposite party no.2. Under the circumstances, pre-condition as contained under Section 138 N.I. Act has remained uncomplied with and, therefore according to him, proceedings are clearly not maintainable under the Negotiable Instruments Act, 1881. He further submits that perusal of the complaint goes to show that the money was taken by the complainant for the purpose of investing in the company and since the company has not been made party, therefore, the complaint is not maintainable on this ground also. Thus, the summoning order as well as the entire proceedings is liable to be quashed. 5. On the other hand, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enforceable debt or other liability. 8. The aforesaid section deals with a cheque drawn by a person for the discharge, in whole or in part, of any debt or other liability. The section does not say that the cheque should have been drawn for the discharge of any debt or other liability of the drawer towards the payee. Thus in complaint under Section 138 of N.I. Act, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. The applicant being holder of cheque and the signature appended on the cheque having not been denied by the Bank, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Before this Court refers to various judgments of the Apex Court considering Sections 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an accused especially in a case where some statutory presumption regarding guilt of the accused has to be drawn. 9. A Three Judges' Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case, if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act. 10. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, the service of notice is deemed to have been effected at the time, at which the letter would have been delivered in the ordinary course of business. In the judgment of the Apex Court in the case of Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah, reported in 2014 12 SCC 685 , the Apex Court has held that absence of averments in the complaint about service of notice upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not hold the field any more. 11. Further the Apex Court in Bharat Barrel Drum Manufacturing Company Vs. Amin Chand Pyarelal, reported in (1999) 3 SCC 35 had considered Section 118(a) of the Act and held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable and defendant can prove the non-existence of a consideration by raising a probable defence. In paragraph No.12 following has been laid down:- 12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof. 23. No evidence was led by the accused. The defence taken in the reply to the notice that cheque was stolen having been rejected by the two courts below, we do not see any basis for the High Court coming to the conclusion that the accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability. How the presumption under Section 139 can be rebutted on the evidence of PW 1, himself has not been explained by the High Court. 24. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
