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2017 (7) TMI 546 - MADHYA PRADESH HIGH COURT

2017 (7) TMI 546 - MADHYA PRADESH HIGH COURT - TMI - Wrong appreciation of evidence and inaccurate applicability of Section 139 of the Negotiable Instrument Act - Held that:- In the instant case the applicant has failed to rebut the presumption to place the onus on the respondent to come with better quality of evidence than the one which already on record. Therefore, the contentions canvased by the learned counsel for the applicant recording wrong appreciation of evidence and inaccurate applicab .....

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order. The applicant is further directed to deposit the remaining money, if any, on or before 08.08.2017, failing which the default stipulation indicated in judgment dated 06.08.2015 shall be enforced. - Criminal Revision No. 523/2016 - Dated:- 13-7-2017 - S. K. Awasthi, J. Shri Tapendra Sharma, learned counsel for the applicant Shri Anvesh Jain, learned counsel for the respondent ORDER The applicant is assailing the order dated 17.05.2016 passed in criminal appeal No. 282/2015 by Special Judge .....

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dated 15.06.2013 drawn on Panjab & Sindh Bank, whereas the remaining amount of ₹ 1,00,000/- was paid in cash. The arrangement which was arrived at between the parties for that the applicant shall refund the money within a period of one year. However according to the respondent, the money was not paid and the applicant continuously stalled the demand made by the respondent. Further, after continuous persuation, the applicant agreed to issue a cheque drawn on HDFC Bank bearing No. 130879 .....

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applicant did not obey the instructions therein which gave rise to liability under Section 138 of the Negotiable Instrument Act, 1882. 3. The respondent filed a complaint case before the competent Court which was registered as criminal Case No. 14/2015 in which the applicant was summoned to face the trial and to come forward with his defence. The respondent recorded his statement in support of the complaint and was subjected to cross-examination by the applicant. After completion of the process, .....

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hs. 4. The judgment was called in question by both the parties by filing separate appeals before the Sessions Court, Shivpuri; the appeal preferred by the respondent was registered as appeal No. 280/2015 for seeking enhancement of the punishment imposed by the trial Court, whereas the appeal preferred by the applicant was registered as appeal No. 282/2015 which called in question the veracity of the judgment dated 06.08.2015. The appellate Court decided both the appeal by a common judgment dated .....

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n forcibly debt. He further submitted that the presumption envisaged under Section 139 of the Negotiable Instrument Act cannot be extended to the extent of absolving the complainant of his liability to prove the compliance of steps prescribed under Section 138 of the Negotiable Instrument Act. The learned counsel for the applicant laid much emphasis on the defence version of the applicant that the money reflecting in cheque No. 130879 could not have been advanced by the respondent who does not h .....

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the Negotiable Instrument Act . 7. I have given my anxious consideration to the rival contentions of the parties and have perused the record. 8. The perusal of the statement of the respondent-Rajiv Dhanawat in the context of cross-examination carried out by the applicant, this Court has no hesitation in concluding that the respondent has duly established that advancement of ₹ 2,00,000/- to the applicant and the attempt made by the applicant to demonstrate that the respondent did not have .....

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or presentation before the trial Court. It is also evident form the record that the applicant has not been able to bring record of any document which may controvert the presumption provided under Section 139 of the Negotiable Instrument Act. The Hon'ble Supreme Court in the case of Krishna Janardhan Bhat v . Dattatraya G. Hegde reported in (2008) 4 SCC 54 has discussed jurisprudence and applicability of Section 139 of the Negotiable Instrument Act in the following terms:- 35. A statutory pre .....

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In M.S. Narayana Menon Alias Mani v. State of Kerala and Another [(2006) 6 SCC 39], it was held that once the accused is found to discharge his initial burden, it shifts to the complainant. 37. Four cheques, according to the accused, appear to have been drawn on the same day. The counterfoil of the cheque book, according to the appellant, was in the handwriting of R.G. Bhat wherein it was shown that apart from other payments, a sum of ₹ 1500/- was withdrawn on a self- drawn cheque. The cou .....

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g run by R.G. Bhat although he was acting as the constituted attorney of the appellant. According to the appellant, R.G. Bhat had cheated him. The counterfoil showed that not more than ₹ 20,000/- had ever been withdrawn from that bank at a time. The courts were required to draw an inference as to the probability of the complainants advancing a sum of ₹ 1.5 lakhs on mere asking and that too without keeping any documentary proof. Even there was no witness. The purported story that the .....

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o in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision. 13. It is furthermo .....

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ct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay instalments in respect of the p .....

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2. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form t .....

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