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2020 (2) TMI 629

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..... t full amount due and payable to the complainant has been paid - In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured. Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the N.I. Act. The impugned judgment and order passed by the High Court and that of the Metropolitan Magistrate acquitting the original accused respondents herein for the offence under Section 138 of the N.I. Act cannot be sustained - Appeal allowed - decided in favor of appellant. - CRIMINAL APPEAL NO. 271 OF 2020 CRIMINAL APPEAL NO. 272 OF 2020 - Dated:- 14-2-2020 - ASHOK BHUSHAN And M. R. SHAH, JJ. FOR THE PETITIONER : VARINDER KUMAR SHARMA JUDGMENT M. R. Shah, J. CRIMINAL APPEAL NO. 271 OF 2020 Feeling aggrieved and dissatisfied with the impugned judgment a .....

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..... to STOP PAYMENT vide bank memo dated 02.06.2014. Thereafter, the complainant sent a legal notice upon the original accused under Section 138 of the N.I. Act vide notice dated 07.06.2014. Despite the service of the notice, the accused did not make the payment of the cheque amount. Therefore, the original complainant appellant herein filed the complaint before the Learned Metropolitan Magistrate. The Learned Metropolitan Magistrate also believed that the cheque was issued and the same was returned unpaid with remarks STOP PAYMENT . The Learned Metropolitan Magistrate believed that the accused Sushil Kumar Sharma admitted his signature on the cheque. The Learned Metropolitan Magistrate also believed receipt of the demand notice by the accused persons and non-payment towards the said cheque. However, thereafter Learned Metropolitan Magistrate observed and held that there is no legal liability as the payment through the card is not established and proved; that the payments are prior to the issuance of the card. Resultantly, the Learned Metropolitan Magistrate dismissed the complaint by judgment and order dated 20.01.2017. Feeling aggrieved and dissatisfied with the judgment and order of .....

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..... n Exchange and Travel Card. It is submitted that he had also admitted that he had made part payment in discharge of the said liability and some amount was remaining. It is submitted that therefore the accused was required to lead the evidence and prove that the entire amount due and payable has been paid. It is submitted that therefore in view of the presumption under Section 139 of the N.I. Act, the Learned Trial Court ought to have convicted the accused for the offence under Section 138 of the N.I. Act. It is submitted that therefore the High Court has erred in confirming the acquittal. 4. The present appeal is vehemently opposed by the learned counsel appearing on behalf of the accused. 4.1 It is vehemently submitted by Learned Counsel appearing on behalf of the original accused that in the facts and circumstances of the case both the courts below have not committed any error in acquitting the accused. 4.2. It is further submitted that it is true that the cheque was issued, but the same was issued towards the security. It is submitted that as such the complainant misused the cheque to recover the dues of business from Ranger Export of India. It is submitted that there is a speci .....

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..... tion that there exists a legally enforceable debt or liability under Section 139 of the N.I. Act. However, such a presumption is rebuttable in nature and the accused is required to lead the evidence to rebut such presumption. The accused was required to lead evidence that the entire amount due and payable to the complainant was paid. 6. On the presumption under Section 139 of the N.I. Act few decisions of this Court are required to be referred to and considered. 6.1 In the case of K.N. Beena vs. Muniyappan, (2001) 8 SCC 458, it is observed and held by this Court that under Section 118 of the N.I. Act, unless the contrary is proved, it is to be presumed that the negotiable instruments (including a cheque) had been made or drawn for consideration. It is further observed and held that under Section 139, the Court has to presume, unless the contrary is proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. It is further observed that thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that the c .....

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..... 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. 15. 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 Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) may presume (rebuttable), (2) shall presume (rebuttable), and (3) conclusive presumptions (irrebuttable). The term presumption is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the presumed fact drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means taking as true without examination or proof . * * * 18. Applying the definition of the word proved in Section 3 of the Evidence Act to the provisions of Sections 118 and 1 .....

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..... in absence of complainant having failed to prove his financial capacity, this Court acquitted the accused. In the present case, the accused never questioned the financial capacity of the complainant. We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque. That is not a case here. 7. Coming back to the facts in the present case and considering the fact that the accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exi .....

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..... on to be paid within a period of eight weeks from today. 9. Present appeal is accordingly allowed. CRIMINAL APPEAL NO. 272 OF 2020 10. Now so far as this appeal arising out of the impugned judgment and order passed by the High Court in Crl. L.P. No. 259/2018 arising out of the judgment and order passed by the learned trial Court in Criminal Complaint No. 62/15 (new no. 613738/16) acquitting the original accused for the offence under Section 138 of the N.I. Act is concerned, the only difference is with respect to the cheques amount. In the present case, four cheques each of ₹ 1,00,000/were issued which came to be dishonoured. Except the cheques amount, there is no difference. 11. For the reasons stated in Criminal Appeal No. 271 of 2020 which has been allowed today, this appeal is also allowed. The impugned judgment and order passed by the High Court as well as that of the trial Court acquitting the original accused - respondents herein for the offence under Section 138 of the N.I. Act cannot be sustained and the same deserves to be quashed and set aside and are accordingly quashed and set aside. The original accused respondents herein are held guilty for the offence under Sec .....

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