TMI Blog2006 (8) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... d the details. He only averred that the cheque was issued by the accused for the discharge of a liability, which he owed to the complainant. The cheque when presented was dishonoured on the ground of insufficiency of funds. Notice of demand was duly despatched, received and acknowledged. It did not evoke any response. Of course later, long after the commencement of the prosecution. Ext. D1 notice was allegedly issued by the accused inter alia to the complainant also. The complainant after scrupulously observing the statutory time table came to court with the present complaint under Section 138 of the N.I. Act. 2. The complainant examined himself as PW 1 and proved Exts. P1 to P7. Though the notice of demand did not evoke any response, the accused in the course of cross examination of the complainant advanced a contention that as a matter of fact only an amount of Rs. 75,000/- was borrowed by the petitioner from the complainant and there was no transaction to discharge which the cheque for an amount of Rs. 1,96,750/- could have been issued on 31-08-2002. Of course one cannot afford not to take note of the incongruity in the stand taken by the petitioner in the cross examination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 138 of the N.I. Act. The courts further came to the conclusion that the accused has not succeeded in discharging his burden to rebut the presumption under Section 139 of the N.I. Act Accordingly they proceeded to pass the impugned concurrent judgments. 6. Counsel for the rival contestants have advanced their arguments. The learned counsel for the petitioner contends that the courts below have erred grossly in coming to the conclusion that the initial burden on the complainant has been discharged and that the burden on the accused under Section 139 of the N.I. Act has not been discharged. The learned counsel for the petitioner submits that the courts below erred in placing on the shoulders of the petitioner/accused a burden as onerous and as heavy as the initial burden on the complainant who is bound to prove his case beyond doubt where as the accused is bound to prove his case only on the yardstick of preponderance of possibilities and probabilities as in a civil case. The counsel further submits that both sides having chosen to adduce evidence, the theoretical dispute about the burden of proof must be held to have paled into insignificance and the courts must have co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. (AIR p.580, para. 12). (emphasis supplied) I shall now extract paragraphs 46 and 47 of Narayana Menon v. State of Kerala below. Para 46: In Hiten P. Dalal v. Bratindranath Banerjee ((2001) 6 SCC 16), a 3-Judge Bench of this Court held that although by reason of Ss. 138 and 139 of the Act, the presumption of law as distinguished from presumption of fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if I have understood the said judgment correctly, was only to disabuse the impression that the burden on the accused under Section 139 of the N.I. Act can be held to be discharged if and only if the accused adduces evidence on his side. That obviously is not the law. In para 47 of the decision in Narayana Menon v. State of Kerala, their lordships have specifically adverted to this aspect. To rebut the burden, the accused can rely not only on the defence evidence adduced by him. He can rely on the broad improbabilities in the case of the prosecution, the improbabilities in the evidence of the witnesses of the prosecution, the acceptability of suggestions made to the prosecution witnesses in the course of cross examination as also defence evidence if any. In short, all circumstances which he as an accused could have relied on the discharge his burden under Section 105 of the Evidence Act can be made use of by him to discharge the burden under Section 139 of the N.I. Act also. 11. Hiten P. Dalal v. Bratindranath Banerjee is authority for the proposition that the presumption under Section 139 of the N.I. Act is a presumption of law and the presumption of law has to be distinguishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is not irrelevant to a prudent mind when it considers what evidence is necessary to come to a conclusion that a particular fact is proved. That and that alone according to me is the justification, in view of the common language of Section 3 of the Evidence Act, for the precedential insistence on a higher degree of proof from the prosecutor - often romanticised and called the paramount burden on the prosecution to prove its case beyond the shadow of a reasonable doubt. Considering the consequences of deprivation of life, liberty and property the Court as a prudent mind insists on a higher degree of proof from the prosecutor. This is all that the law insists. The yardstick of probability applies in a criminal case also. But higher degree of probability is insisted from a prosecutor. Narayana Menon also only reiterates this principle. 14. Back to the facts of the case. Primarily we have the evidence of PW 1, the complainant about the circumstances under which Ext. P1 cheque admittedly written on a cheque leaf issued to the petitioner by his bank to operate his account with the signature of the petitioner admittedly affixed thereon travelled from the possession of the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he makes suggestions not revealing at all the role of the said Jose Paul in the transaction. It is subsequently at stage two of the cross examination by another counsel when the complainant was recalled that Jose Paul was introduced. Necessary inferences from these circumstances must be drawn by any prudent mind and the courts below according to me did not commit any error in attaching due significance and relevance to the silence of the petitioner on receipt of the notice of demand and to the incongruent defences urged at two different stages of the cross examination of PW 1. 17. The learned counsel for the petitioner submits that the court may not lose sight of the importance of certain crucial circumstances which the accused wanted to project before the courts below. An amount of Rs. 75,000/- was admittedly received by the petitioner and that amount was received by a cheque on 3-7-2001. Though the complainant: in his cross examination earlier said that interest on that amount of Rs. 75,000/- used to be paid, subsequently he took the stand that no interest was paid. In spite of such non payment of interest, the counsel for the petitioner points out that the complainant claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the petitioner then contends that the oral evidence of Dws. 1 to 3 was not properly considered by the courts below. DW 1 is the accused. His version is inherently unconvincing. He is money lender himself. The convenient and specious plea that a blank signed cheque was handed over as security in a loan transaction cannot readily and naively be accepted and swallowed by courts. In doing so, the indictee is attributing to himself an improbable, artificial and indifferent conduct to claim exculpation from liability. The laudable commercial morality which the legislature seeks to usher in by introduction of Section 138 into the statute book will be frustrated and stultified if courts were to readily and meekly accept and swallow such explanation. If such a laudable commercial morality were to prevail, account holders will also have to deal with their cheques carefully, cautiously and reasonably and not without diligence, indifferently unreasonably and irrationally. Even today such a defence may not be impossible or impermissible in a prosecution under Section 138 of the N.I. Act. But the burden must rest squarely and heavily on the person who wants to attribute to himsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ients for the cheque appear to be absolutely essential. (1) The cheque must have been drawn by the indictee. (2) Such drawal of the cheque must have been for payment of money to another person. (3) That such drawal and payment must be for the discharge of a legally enforceable debt/liability. 24. The counsel contends that the presumption under Section 139 of the N.I. Act may help the complainant only in discharging the burden to prove the third part and can have no bearing while considering requirements 1 and 2 referred above. The language of Section 139 certainly supports this contention of the learned counsel for the petitioner. This to me is what the Honourable Judges of the Supreme Court in Narayana Menon v. State of Kerala said when their lordships observed that the accused has no burden to disprove the case of the complainant. The presumption under Section 139 of the N.I. Act cannot help the court to presume that the cheque was drawn, i.e., written, signed and delivered by the accused. It can only help the Court to presume that the cheque was issued for the discharge of a legally enforceable debt or liability. I find no difficulty in accepting that propositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be discharged. This and this alone is directed by law by the axiomatic insistence on proof beyond doubt - which is at times romanticised and called proof beyond reasonable doubt and proof beyond the shadow of a reasonable doubt. The purpose of such insistence is only to caution courts that they must be able to enter a conclusion of guilt without hesitation on the materials available. iii) One ingredient of the offence under Section 138 of the N.I. Act can be presumed against the accused under Section 139 of the N.I. Act and that is that the cheque if it is proved to have been issued, has been issued for the due discharge of a legally enforceable debt/liability. Section 139 does not permit the drawing of any other presumption. Execution and issue of the cheque have to be proved to draw the presumption under Section 139 and Section 139 does not shift the burden to prove execution and issue of the cheque. iv) Section 139 of the N.I. Act does not at all permit the courts to draw any presumption of guilt against the accused and there is no burden on any accused to disprove the case of the prosecution or to prove his innocence. v) Admission of signature in a cheque goes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. In deciding that, all contra possibilities and probabilities against the accused will also be considered by the Court. Whose version - whether that of the accused or that of the complainant, rhymes better with probabilities will have to be considered and only if the answer is in favour of the accused can he succeed in his attempt to rebut the presumption. The improbability of a prudent person, who must be assumed to know the law, signing and handing over a signed blank cheque will also have to be considered certainly by a Court while deciding whether such burden on the accused has been discharged. ix) If the burden on the accused under Section 139 to prove contra is successfully discharged, then the prosecution must fail for the reason that the complainant without the aid of such presumption has not been able to prove the crucial ingredient under Section 138 of the N.I. Act beyond doubt. The presumption under Section 139, till the burden on the accused remains undischarged, can certainly persuade the Court not to look for any evidence on that aspect. 27. I am in these circumstances of the opinion that the burden on the complainant stands discharged satisfactorily and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
