TMI Blog2008 (12) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 23, 2006, rendered by the learned Single Judge of Punjab and Haryana High Court, in Criminal Appeal No. 946 SBA of 2004, by which the judgment dated December 6, 2003, passed by the learned Judicial Magistrate I Class, Karnal, in Criminal Complaint No. 178 of 2001, acquitting the appellant under Section 138 of the Negotiable Instruments Act, 1881 ( the Act for short), is set aside and after convicting the appellant under Section 138 of the Act the matter is remitted to the learned Magistrate to pass appropriate order of sentence. 3. Jai Bhagwan Sharma, proprietor of M/s. Sharma Carpets, the respondent herein, deals in carpets. Rajinder Kumar, proprietor of M/s. Kumar Exports, the appellant herein, is carrying on business at Panipat. It is the case of the respondent that the appellant purchased handtufted woolen carpets from him on August 6, 1994, cost of which was Rs.1,90,348.39. According to the respondent, the appellant issued two cheques, i.e., one cheque bearing No. 052912 dated August 25, 1994 for a sum of Rs.1,00,000/- and another cheque bearing No. 052913 dated September 25, 1994 for an amount of Rs.90,348.39 drawn on Panipat branch of Union Bank of India, for dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no sale or purchase of woolen carpets had taken place and, therefore, no sales tax was deposited. The said witness also produced an affidavit filed by the respondent as Ex.D-1 wherein the respondent had stated on oath that no sale or purchase of woolen carpets had taken place during the Assessment Year 1994-95. 6. On appreciation of evidence the learned Magistrate held that the execution of the cheques was admitted by the appellant and that it was proved by the respondent that those cheques were dishonoured on account of insufficient funds. However, the learned Magistrate concluded that it was not proved by the respondent that the cheques were issued by the appellant for discharge of a debt or liability. The learned Magistrate noticed that the bill produced at Ex. CW-2/C did not bear the signature of the appellant as buyer to acknowledge its acceptance or correctness. The learned Magistrate also noted that no corroborative evidence in the form of account books was produced by the respondent and it was, therefore, doubtful whether in fact the respondent had delivered any goods to the appellant. The learned Magistrate referred to the testimony of witness from the Sales Tax Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence relating to presumptions. The reason for these presumptions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. Section 139 of the Act provides that 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 for the discharge, in whole or in part, of any debt or other liability. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Indian Evidence Act all presumptions must come under one or the other class of the three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 11. The use of the phrase until the contrary is proved in Section 118 of the Act and use of the words unless the contrary is proved in Section 139 of the Act read with definitions of may presume and shall presume as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... den shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant s rescue. 12. The defence of the appellant was that he had agreed to purchase woolen carpets from the respondent and had issued the cheques by way of advance and that the respondent did not supply the carpets. It is the specific case of the respondent that he had sold woolen carpets to the appellant on 6.8.1994 and in discharge of the said liability the appellant had issued two cheques, which were ultimately dishonoured. In support of his case the respondent produced the carbon copy of the bill. A perusal of the bill makes it evident that there is no endorsement made by the respondent accepting the correctness of the contents of the bill. The bill is neither signed by the appellant. On the contrary, the appellant examined one official from the Sales Tax Department, who positively asserted before the Court that the respondent had filed sales tax return for the Assessment Year 1994-95 indicating that no sale of woolen carpets had taken place during the said Assessment Year and, therefore, sales tax was not paid. The said witness also prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate order of sentence. The judicial function of imposing appropriate sentence can be performed only by the Appellate Court when it reverses the order of acquittal and not by any other court. Having regard to the scheme of the Code of Criminal Procedure, 1973 this Court is of the view that after finding the appellant guilty under Section 138 of the Act, the judicial discretion of imposing appropriate sentence could not have been abdicated by the learned Single Judge in favour of the learned Magistrate. Having found the appellant guilty under Section 138 of the Act it was the bounden duty of the High Court to impose appropriate sentence commensurate with the facts of the case. Therefore, we do not approve or accept the procedure adopted by the High Court. Be that as it may, in this case, we have found that reversal of acquittal itself was not justified. 14.For the foregoing reasons the appeal is allowed. The judgment and order dated November 23, 2006, rendered by the learned Single Judge of Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 946 SBA of 2004 convicting the appellant under Section 138 of the Act, is set aside and judgment dated December 6, 2003, r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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