TMI Blog2018 (1) TMI 1556X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Magistrate has committed a serious error of law in not correctly appreciating the import and implication of statutory presumptions on the anvil of the position of law settled by the Hon'ble Apex Court. The accused is convicted for offence punishable under Section 138 of the Act and is sentenced to payment of fine of ₹ 1,59,000/- and in default to undergo simple imprisonment for period of six months. - CRIMINAL APPEAL NO.349 OF 2006 - - - Dated:- 16-1-2018 - Rohit B. Deo, J. Shri R.N. Ghuge, Advocate for the appellant, None for the respondent. JUDGMENT : The appellant, who is the original complainant in Summary Criminal Case 915/2004 instituted under Section 138 of the Negotiable Instruments Act, 1881 ( Act for short), is challenging the judgment and order dated 10-4-2006 passed by the learned Judicial 2 apeal349.06 Magistrate First Class, Buldana, by and under which the respondent/accused is acquitted of offence punishable under Section 138 of the Act. 2. Heard Shri R.N. Ghuge, learned Counsel for the appellant. Since there was no appearance on behalf of the respondent-accused, at the request of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.1 that since there was drought and the complainant was in need of digging the well, the accused gave the four cheques as donation, which suggestion is denied. 8. The accused examined himself and deposed that the complainant approached him in the year 2003 and asked for donation to dig the well in the village in view of the drought. The accused has deposed that he handed over blank cheques without the date, amount or name and cautioned the complainant that a written intimation be given to the accused before filling in the amount and depositing the cheque, which written intimation was not given. The receipt of the statutory notice is denied. In the cross-examination, it is extracted that the annual income of the accused is ₹ 25,000/-. The accused, however, denied the suggestion that since he needed money, the complainant extended 5 apeal 349.06 hand loan. 9. In the the statement under Section 313 of the Criminal Procedure Code, the accused stated, in response to question 9, that it was the complainant who demanded hand loan and he issued the cheques which were blank. However, the accused did not dispute the signature on the cheques. The learned Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. 11. In K.N. Beena vs. Muniyappan and another reported in 7 apeal349.06 (2001) 8 SCC 458, the Hon'ble Apex Court, refers to Hiten P. Dalal v. Bratindranath Banerjee and holds, on the factual matrix, that bare denial of the liability in reply notice is not sufficient to shift the burden of proof on the complainant to prove that the cheque was issued for a debt or liability. 12. The Three Judges Bench judgment of the Hon'ble Apex Court in Hiten P. Dalal v. Bratindranath Banerjee reported in (2001) 6 SCC 16 considers the scope and ambit of Section 139 of the Act thus : 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, as noted in State of Madras vs. A. Vaidyanatha Iyer, it is obligatory on the Court to raise this presumption in every case where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Madras vs Vaidyanath Iyer and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which might reasonably be true and which is consistent with the innocence of the accused. On the other hand in the case of a mandatory presumption the burden resting on the accused person in such a 9 apeal349.06 case would not be as light as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company v. Amin Chand Payrelal albeit in a civil case laid down the law in the following terms: 12. Upon consideration of various judgments as noted hereinabove, 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 11 apeal349.06 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bable. I am satisfied, that even if the test of preponderance of probabilities is applied, the accused failed to raise a defence which creates doubt about the existence of legally enforceable debt. 15. Be it noted, that in response to question 9 in the statement recorded under Section 313 of the Criminal Procedure Code, the accused stated that it was the complainant who requested for a hand 13 apeal349.06 loan. The signature of the accused on the four cheques is not in dispute. The defence taken in the statement recorded under Section 313 of the Criminal Procedure Code is inconsistent with the suggestions given to the complainant that in view of the drought in the village, the complainant requested the accused to give a donation to enable digging of well. 16. The judgment and order impugned is clearly unsustainable in law. The learned Magistrate has committed a serious error of law in not correctly appreciating the import and implication of statutory presumptions on the anvil of the position of law settled by the Hon'ble Apex Court. The judgment and order impugned occasions miscarriage of justice and is accordingly set aside. 17. The accused is convic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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