TMI Blog2020 (1) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... has been recorded against the accused suffers from the vice of perversity, particularly, for non-consideration of the evidence on record as pointed out above which pushes the existence of the debt or subsistence of liability owning to the complainant to the tune of ₹ 5.50 lakh and standing to be discharged by the accused into thick clouds of doubt. The courts below are thus found to have committed manifest error by going to hold the accused guilty for commission of offence under section 138 of the N.I. Act in convicting him thereunder followed by imposition of sentence and award of compensation as aforestated. Revision allowed. - CRL REV NO. 613 OF 2016 - - - Dated:- 3-1-2020 - MR. D. DASH J. For the Petitioner :::: M/s. S. Mishra, S. Nanda, S.K. Samantaray, S.Modi and E.Agarwal, advocates For the Opp.party :::: Mr. D. Samal M/s. N. Singh, S.K. Giri and A. Rout, advocates. The petitioner, by filing this revision, has called in question the legality and propriety of the judgment dated 23.7.2016 passed by learned Sessions Judge, Balasore in Criminal Appeal No. 83 of 2015 by which the judgment of conviction of the petitioner for commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o section 138 of the N.I. Act. There being no response from the side of the accused to the said notice of demand, the complaint ultimately filed the complainant. The plea of the accused is that of denial and false implication. 3. Before the trial court, the complainant examined himself as P.W.1 and two other witnesses P.Ws.2 and 3. He also proved the cheque (Ext.1), other documents as to the dishonour of the cheque and the demand notice issued by him. The agreement evidencing the transaction has been admitted in evidence and marked as Ext.11. The accused has examined himself as D.W.1 and two other witnesses in support of his defence. 4. The trial court on the basis of the evidence on record has drawn the presumption under section 139 of the N.I. Act that the accused had issued the said cheque in favour of the complainant for discharge of his debt and liability. Then on analysis of evidence, the trial court having concluded that the presumption has not been rebutted, a finding has been returned holding the accused guilty of offence under section 138 of the N.I. Act. Accordingly, he has been sentenced and directed to pay the compensation as above stated. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set it at naught in exercise of the revisional jurisdiction. He placed reliance on the following decisions which would be referred to in due course:- (i) T. Nagappa Vrs. Y.R. Muralidhar; (2008) 2 SCC (CRI) 677; (ii) K.S. Subramani Vrs. K. Damodara Naidu; (2015) 1 SCC 576; and (iii) Rohitbhai Jivanlal Patel Vrs. State of Gujarat; AIR 2019 SC (CRI) 775. 6. Learned counsel for the opposite party (complainant) submitted that the courts below after going through the evidence let in by the parties have rightly come to the conclusion that the complainant has fulfilled all the requirements as per the provision of section 138 of the N.I. Act and when nothing substantial has come from the side of the accused through evidence so as to discard or disbelieve the version of the complainant, P.W. 1; the courts below are right in convicting the accused for offence under section 138 of the N.I. Act. He submitted that when the accused admits to have given the signed cheque to the complainant and thereafter prior to the lodging of the complaint had not relied to the notice of demand of payment made by the complainant when the cheque got disho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 118 (a) and 139 of the N.I. Act would stand to hold the field as such that said cheque had been made or drawn for consideration and was with the holder for the discharge of debt or other liability, either in whole or in part unless and until upon consideration of the matter, the court either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. It has further been held that for the said purpose the evidence adduced on behalf of the complainant would be well relied upon. In the above case, the accused having clearly said that nothing was due and the cheque was issued by way of security, in the absence of satisfactory proof about the existence of debt in respect of large part of the said amount; the defence being found to be acceptable as a probable one, the Apex Court has taken the view that the cheque has not been issued in discharge of the debt as the issuance of the cheque for security or for any other purpose does not attract the penal provision contained in section 138 of the N.I. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the cheque was for the discharge of any debt or other liability. ii) The presumption under section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. 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 they rely. iv) That it is not necessary for the accused to come in the witness box in support of his defence, section 139 imposed an evidentiary burden and not a persuasive burden. v) It is not necessary for the accused to come in the witness box to support his defence. Applying the propositions of law as noted above to that case by proceeding to raise the presumption under section 139 of the Act taking note of the evidence of P.W.1(complainant) that he has no remembrance as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumption drawn should beheld to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same. 12. In case of M/s Kumar Exports (supra) cited by the learned counsel for the opposite party (complainant), the very same principles having been restated as under:- 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden 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. 13. In case of Rangappa vs. Sri Mohan ; 2010(2) Apex Court Judgments 285 (SC) setting forth the principles, it has been highlighted that the standard of proof for rebuttal of presumption under section 139 of the Act is that preponderance of probabilities and if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforeceable debt or liability, the prosecution would fail and for the purpose, the accused can rely upon the materials submitted by the complainant in order to raise such defence. 14. The Hon ble Apex Court in case of Kamala S. vs. Vidyadharan M.J. another; 2007 (2), Apex Court Judgments 096 (SC), has said that the burden of proof on accused is not as high as that of the prosecution and the standard of proof in disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of legally enforceable debt has been answered. In that given case, the cheque being issued by way of advance payment for the purchase order was cancelled for which the payment of the money under the cheque was stopped. In that situation, it has been held that the purchaser may be liable for breach of contract, when a contract provides that the purchaser has to pay in advance and cheque towards advance payment being dishonoured, it would not give rise to the criminal liability under section 138 of the N.I. Act and therefore issuance of cheque towards advance payment would not be considered as discharge of any subsisting liability which depends on the nature of the transaction as to if on the date of the cheque liability or debt exists or the amount stands as legally recoverable. It has further been held that the accused in order to rebut the presumption under section 139 of the N.I. Act even without adducing evidence of his own can rely upon the material submitted by the complainant but mere statement of the accused is not enough to rebut the said presumption. 18. In case of Rohitbhai Jivanlal Patel (supra), cited from both sides, the Apex Court having found all the basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.W. 1 has further stated to have given 500 numbers of currency notes of the denomination of ₹ 1000/-, and 37 pieces of currency notes of the denomination of 500/-. This being accepted the amount so paid by the complainant to the accused comes to ₹ 5,18,500/-. In the absence of any other explanation, thus the payment of the total amount comes within the zone of doubt. He has further stated that it is the accused who had filled up the cheque in all respect. The defence case from the beginning is that he had taken a sum of ₹ 30,000/- from the complainant and as desired by the complainant, he had given a signed blank cheque and signed blank stamp papers. The accused in his defence has stated to have taken the said sum to meet expenses towards the treatment of his ailing father. He denies to have ever issued a cheque of ₹ 5.50 lakh towards discharge of his liability to that extent which he says to have never owed. D.W. 2 has also stated about receipt of ₹ 30,000/- by the accused from the complainant. It is the evidence of D.W.1 that being asked by the complainant, he had signed on blank stamp papers. This he refers to be in connection of the loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has the variance with his purported signature appearing in Ext. 11. At this juncture, it is seen that this witness is stating that the complainant had given 500 pieces of currency notes of the denomination of 1000, 37 numbers of currency notes of the denomination of 500 and 315 numbers of currency notes of 100 denomination which comes to ₹ 5.50 lakh. When P.W. 1 states to have paid a sum of ₹ 5,18,500/-; for this witness to exactly remember the numbers of currency notes with reference to their denominations as to have been given by the complainant to the accused is not at all believable and that rather places P.W.2 in the position of a wholly got up witness in coming even to make good the important deficiency occurring in the evidence of P.W.1. This witness examined a month after examination of P.W. 1 has gone to say about the payment of 315 numbers of currency notes of 100 denomination which is not the evidence of P.W.1 who is the person who claims to have paid the money. The accused however having admitted to have issued a cheque, the presumption stands drawn that the cheque was issued in discharge of debt or liability. The question stands as to whether any probable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city. That having not at all been done, it has to be said that the complainant has failed to proved that the sum of ₹ 5.50 lakh was the existing debt to be cleared by the accused as on the date of issuance of cheque. Such evidence being considered in proper perspective, the accused is found to have been successful in raising a probable defence in discharging the burden resting on his shoulder, shifting it to the complainant which on the face of the evidence is not seen to have been successfully proved the debt and liability to the tune of ₹ 5.50 lakh standing to be cleared by the accused. 20. On going through the judgments of the courts below, it is seen that all the above important facts emanating from evidence, have not all been dealt and to me, it appears that the courts below have remained under an erroneous impression that the presumption has to be rebutted by the accused only by leading evidence from his side. The view taken that the accused having not responding in that light, right from the time of demand for payment made by the complainant till lodging of the complaint stands as a circumstance against his case favouring the case of the complainant appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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