TMI Blog2018 (5) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... d that Section 313 Cr.P.C. is only for the benefit of the accused and prejudice, if any, can only be caused to the accused for his non-examination under Section 313 Cr.P.C. and not the complainant. The provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion - It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. Appeal dismissed. - CRL.A. 443, 444, 445 & 446/2017 - - - Dated:- 10-5-2018 - MS. MUKTA GUPTA J. Appellant Represented by: Mr. Naveen Sharma and Mr. Ashish, Advocates. Respondent Represented by: Mr. Vivek Sood, Senior Advocate with Mr. B.K. Pandey and Mr. Siddharth Gupta, Advocate. 1. The present appeals are directed against the judgment dated 29th October, 2015 passed by the learned Additional Chief Metropolitan Magistrate in CC Nos. 120/14 (Crl.A. No.443/2017), 21/14 (Crl.A. No.444/2017), 41/14 (Crl.A. No.445/2017) and 174/14 (Crl.A. No.446/2017), titled as M/s S.S. Diamonds International v. Nameeta Sharma , whereby the complaints preferred by the appellant under Section 138 of the Negotiable Instruments Act, 188 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 14. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability. 5. Supreme Court in the decision reported as (2010) 11 SC 441 Rangappa v. Sri Mohan at length discussed the scope and legislative intent of the Sections 138 139 of the NI Act as under: 17. In the course of the proceedings before this Court, the contentions related to the proper interpretation of Sections 118(a), 138 and 139 of the Act. Before addressing them, it would be useful to quote the language of the relevant provisions: 118. Presumptions as to negotiable instruments.- Until the contrary is proved, the following presumptions shall be made: (a) of consideration: th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act. With respect to the facts of the present case, it must be clarified that contrary to the trial court's finding, Section 138 of the Act can indeed be attracted when a cheque is dishonoured on account of stop payment instructions sent by the accused to his bank in respect of a post-dated cheque, irrespective of insufficiency of funds in the account. This position was clarified by this Court in Goaplast (P) Ltd. v. Chico Ursula D'Souza [(2003) 3 SCC 232: 2003 SCC (Cri) 603], wherein it was held: (SCC pp. 232g-233c) Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. The said provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation which serves the object of the statute. A post-dated cheque will lose its credibility and acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct. 32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. *** 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities . 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 he relies. (emphasis supplied) 19. It has been contended on behalf of the appellant-ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of any debt or other liability (see p. 62, para 30 in Krishna Janardhan Bhat [(2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] ) are in conflict with the statutory provisions as well as an established line of precedents of this Court. It will thus be necessary to examine some of the extracts cited by the respondent claimant. For instance, in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16 : 2001 SCC (Cri) 960] , it was held: (Ruma Pal, J. at SCC pp. 24-25, paras 22-23) 22. Because both Sections 138 and 139 require that the court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn, it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, 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 prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invaria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [(2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaints. 7. Appellant led pre-summoning evidence. Thereafter, respondent was summoned under Section 138 NI Act vide orders dated 30th April, 2014, 18th February, 2014, 12th March, 2014 and 6th June, 2014 respectively. Notice was framed against the respondent on 23rd July, 2014 and in her defence, respondent stated that she had returned jewellery articles worth ₹23,50,000/- against receipt from the appellant and had also paid ₹10,50,000/- to the appellant. However, out of the 6 cheques taken by the appellant on security basis, two cheques totaling to ₹10,50,000/- were returned to her, whereas the other cheques were not handed over and the unreturned cheques were manipulated to falsely implicate her in complaint cases. 8. Amarjeet Singh, proprietor of appellant, was examined as CW-1. He reiterated the contents of the complaint in his evidence by way of an affidavit which was proved vide Ex.CW-1/A. Original cheques were proved vide Ex. CW-1/1, return memo was proved vide Ex.CW-1/2, legal notices as Ex.CW-1/4, original postal receipts as Ex.CW-1/5 and replies of the respondent to the legal notices were proved as Ex.CW-1/6. 9. Statement of the respondent was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the two returned cheques? Ans: One is cheque bearing No. 958215 of ₹5.5 Lakhs drawn on PNB. The detail of the second cheque I do not know, as I had not noted down its detail. The second cheque is however of ₹5 lakhs.I had received the jewellery returned by the accused, against the cheque of ₹5 Lakhs which was returned by me to accused. It is wrong to suggest that no jewellery was returned against the cheque of ₹5 lakhs and that the accused had paid cash against the return of the said cheque. It is correct to suggest that as per the MOU cash was to be taken by me and that I had to return the cheque on receiving the cash from the accused of the same denomination. However, it is wrong to suggest that the cheque of ₹5 lakhs was returned to the accused on receiving cash from the accused. It is wrong to suggest that the accused has paid me cash of ₹10,50,000/- against the return of the said two cheques of ₹5.5 and 5 lakhs. (The witness is shown original document Mark XP and is asked whether it bears his signature at point A.) I am in doubt that whether the said signature is mine or not. Vol: However, I admit that the artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 further cross deferred as no time left. Witness has been shown one slip and is asked whether it bears his signature to which he replied it is his signature at Point A, however, the portion from B to B1 is not his handwriting and the said slip is Ex. CW-1/D4. Witness has again been shown one another slip and is asked whether it is his handwriting or not, to which he replied it bears his handwriting in all and said slip is Ex. CW-1/D5. 12. In the present case as noted above all original documents were produced by the accused and shown to the appellant and returned before exhibiting the photocopies. Thus the documents Ex.CW1/D1 to Ex.CW1/D5 were proved in accordance with law. Even otherwise an objection as to mode of proof can be taken at the stage of trial only as held by the Supreme Court in the decision reported as (2003) 8 SCC 752 R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami V.P. Temple as under: 20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court. 21. The Privy Council in Padman v. Hanwanta [AIR 1915 PC 111: 19 CWN 929] did not permit the appellant to take objection to the admissibility of a registered copy of a Will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed: (AIR p. 112) The defendants have now appealed to His Majesty-in-Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the Will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection been made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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