TMI Blog2020 (5) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... at the cheque is issued in discharge of a lawfully recoverable debt or other liability. This presumption is no doubt rebuttable at trial but there is no gain saying that the same favours the complainant and shifts the burden to the drawer of the instrument (in case the same is dishonoured) to prove that the instrument was without any lawful consideration. It is also noteworthy that Section 138 while making dishonour of a cheque an offence punishable with imprisonment and fine also provides for safeguards to protect drawers of such instruments where dishonour may take place for reasons other than those arising out of dishonest intentions. It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period. This Court having noticed the facts of the case and the evidence on the record needs to note the legal principles regarding nature of presumptions to be drawn under Section 139 of the Act and the manner in which it can be rebutted by an accused. Section 118 provides for presumpti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the applicant and Mr. Amit Singh Chauhan and Mr. Prashant Kumar, learned A.G.As. for the State. 2. Learned counsel for the applicant and the learned A.G.A. agree that the present application may be disposed of at this stage without calling for further affidavits in view of the order proposed to be passed today. 3. By means of this 482 Cr.P.C. application, the applicant has questioned summoning order dated 7th May, 2019 passed by the Chief Judicial Magistrate, Jalaun in Complaint Case No.1277 of 2019 (Sm. Kamla Devi Vs. Ranjit), under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act ), Police Station-Kotwali Orai, District-Jalaun, whereby the applicant has been summoned. The applicant also seeks for quashing of the order dated 24th October, 2019 passed by the Sessions Judge, Jalaun in Criminal Revision No. 66 of 2019, whereby the revision filed by the applicant against the summoning order dated 7th May, 2019, has been dismissed. 4. The facts, as borne out from the records of the present application, are as follows: The complainant/opposite party no.2 and applicant are relatives, as the applicant is son-in-law o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the applicant had never given any cheque of ₹ 1,90,000/- to the complainant/opposite party no.2 for repayment of loan taken by him. He was unaware of any conspiracy which was being hatched by opposite party no.2 or her sons. After receiving legal notice dated 6th February, 2019 sent by the Advocate of complainant about the loan taken, dishonour of cheque and demand of payment, he came to know that some conspiracy is going on against him and he tried to search his cheque book and found that the same was missing. On 28th February, 2019, the applicant informed the concerned Branch of the Bank about his missing cheques and stopping of payment from the said account. It is further submitted that being close relatives, sons of the complainant, namely, Sandeep, Jitendra and Kuldeep, came to Delhi and resided in the room of the applicant in November, 2018 and they stole the cheque book of the applicant and by making his forged signatures, they cooked up a false and frivolous story. It is further submitted that the applicant was not engaged in agriculture for which he had to take any loan. His father and two elder brothers are engaged in agriculture. When he came to know that Sand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... echanical manner while passing the summoning order dated 7th May, 2019 and did not apply his judicial mind, as it was not a case of business transaction but it is case of hatched conspiracy between near relations. No details of loan, witnesses and cheque have been disclosed in the complaint which makes the whole case very flimsy and doubtful. In support of his plea, the learned counsel for the applicant has commended this Court to the following decisions of the Apex Court: 1. Raj Kumar Khurana Vs. State of (NCT of Delhi) Another reported in (2009) 6 SCC 72; 2. S.P. Chengalvaraya Naidu (dead) by L.Rs. Appellants Vs. Jagannath (dead) by L.Rs. other Respondents , reported in AIR 1994 SC 853; and 6. Learned counsel for the applicants, therefore, submitted that the present criminal proceedings initiated against the applicants are not only malicious but also amount to an abuse of the process of the Court. On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the applicants that the proceedings of the above mentioned complaint case are liable to be quashed by this Court. 7. Per contra, Mr. Chauhan learned counsel for the State ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the concerned Magistrate to say that there is no sufficient ground for proceeding against the accused. It is further submitted that the revisional court has also not committed any error in affirming the order of the concerned Magistrate summoning the applicant. It is further submitted that the case laws as cited by the learned counsel for the applicant are not applicable in the facts of the present case. On the cumulative strength of the aforesaid, learned A.G.A. for the State submits that the present application is liable to be dismissed. 8. I have considered the submissions made by the learned counsel for the applicants and have gone through the records of the present application. 9. Before expressing any opinion on the merits of the case set up by both the parties, it would be worthwhile to reproduce Sections 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability.] 139. Presumption in favour of holder. -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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our may take place for reasons other than those arising out of dishonest intentions. It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period. 12. This Court having noticed the facts of the case and the evidence on the record needs to note the legal principles regarding nature of presumptions to be drawn under Section 139 of the Act and the manner in which it can be rebutted by an accused. Section 118 provides for presumptions as to negotiable instruments. The complainant being holder of cheque and the signature appended on the cheque having not been denied by the Bank, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Before this Court refers to various judgments of the Apex Court considering Sections 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an accused especially in a case where some statutory presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing was laid down by the Apex Court in paragraph No.30 of the aforesaid judgment: 30. Applying the said definitions of proved or disproved to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it 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. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. 17. The Apex Court has already held that what is needed is to raise a probable defence, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon. Dealing with standard of proof, following was observed in paragraph No.32:- 32. The standard of proof evidently is preponderance of probabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. 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 that the real fact is not as presumed, the purpose of the presumption is over. 20. The accused may adduce direct evidence to prove that the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court, the Apex Court in that case held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability, which, of course, is in the nature of a rebuttable presumption. In paragraph No.26, following was laid down:- 26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat, (2008) 4 SCC 54 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. 23. Elaborating further, the Apex Court has held that Section 139 of the Act is an example of a reverse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was taken by the accused was that cheque was stolen by the appellant. The said defence was rejected by the trial court. In paragraph Nos. 21 to 23, following was laid down:- 21. In the present case, the trial court as well as the appellate court having found that cheque contained the signatures of the accused and it was given to the appellant to present in the Bank, the presumption under Section 139 was rightly raised which was not rebutted by the accused. The accused had not led any evidence to rebut the aforesaid presumption. The accused even did not come in the witness box to support his case. In the reply to the notice which was given by the appellant, the accused took the defence that the cheque was stolen by the appellant. The said defence was rejected by the trial court after considering the evidence on record with regard to which no contrary view has also been expressed by the High Court. 22. Another judgment which needs to be looked into is Rangappa v. Sri Mohan (2010) 11 SCC 441. A three-Judge Bench of this Court had occasion to examine the presumption under Section 139 of the 1881 Act. This Court in the aforesaid case has held that in the event the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. The above Kishan Rao case was a case where this Court did not find the defence raised by the accused probable. The only defence raised was that cheque was stolen having been rejected by the trial court and no contrary opinion having been expressed by the High Court, this Court reversed the judgment of the High Court restoring the conviction. The respondent cannot take any benefit of the said judgment, which was on its own facts. (Emphasis added) 25. This Court has also considered the judgments of the Apex Court in the cases of of Raj Kumar Khurana and S.P. Chengalvaraya Naidu (dead) by L.Rs. (Supras), which have heavily been relied upon by the learned counsel for the applicant. The facts of that case is that the appellant of the said case had lost two blank cheques in his office along with some stamp papers and immediately thereafter he had informed the Bank about missing of the said cheques and also he made a complaint before the Police Station on 21st April, 2001 and when the said blank cheques were alleged filled up on 24th June, 2001 and presented before the Bank, the same were returned dishonoured with the remarks Said cheque reported lost by the drawe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He can be summarily thrown out at any stage of the litigation. A litigant who approached the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other wise then he would be guilty of playing fraud on the court. However, in the facts of the present case, neither both the courts below or this Court has prima facie found that the opposite party no.2 has committed any fraud by submitting or filing any forged document. No evidence was led by the applicant. The defence taken in the reply to the notice that cheque was stolen having been rejected by the two courts below as the applicant had not been successful in creating doubt in the mind of the Courts with regard to the existence of the debt or liability or missing or stealing of cheques. The Bank has also not made a remark on the return memo to the opposite party no.2 that there was no sufficient balance in the account of the applicant. Therefore, the case relied upon the by the learned counsel for the applicant in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. (supra) is also not applicable. 27. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst eventuality prescribed under Section 482 Cr.P.C is not at all attracted. Still further, by any means, an order passed by a Court of competent jurisdiction and continuation thereof; cannot be branded as an abuse of the process of Court; unless it is alleged and shown to the High Court that the Courts below had acted for irrelevant reasons or for extraneous considerations. Needless to say that sufficiency of reasons is not to be gone into after the revisional Court. It is not even the allegation of the applicant in this case that orders are passed by Court below; for irrelevant or extraneous considerations. So far as the third ingredient of Section 482 Cr.P.C is concerned, this Court is not supposed to go into `legality' and `propriety' of the order passed by the trial Court. Section 397(3) of Cr.P.C prohibits second revision by a party. Under Section 397(1), the Revisional Court is authorized to see `legality' and `propriety' of the order passed by the Court. Since second revision by the same party is prohibited under Section 397(3), therefore, any argument on `legality' or `propriety' of an order passed by the Court below, ordinarily, is not to be appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 156 Cr.P.C. till that date. It is on 20th September, 2019 (reference paragraph-21 of the affidavit accompanying the present application), applicant went to the Police Station for lodging of the first information report about theft, forgery and cheating alleged to have been committed by opposite party no.2 and her sons by using his stolen cheques. 30. From the aforesaid it is apparent that from November, 2018 to 28th February, 2019 he has slept over his missing cheques and woke up only after service of legal notice dated 6th February, 2019 i.e. on 9th February, 2019 but after 19 days he moved an application before the Bank for stoppage of bank account. Except that, he has taken six months and twenty days to go to Police Station for lodging of the first information report. Therefore, this Court is of the opinion that the said plea has no leg to stand. The other plea taken on behalf of the applicant that the signature appended on the cheque is not of the applicant the same is forged, has also no leg to stand on the ground that the on presentation of the same, the Bank has returned the same along with return memo as there was no sufficient balance in the account of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
