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TMI Blog2020 (10) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... aughters and one son, out of them, four daughters are married and one daughter and one son are unmarried and she is having their responsibilities. That she is holding land bearing survey No.209 admeasuring Hec.are 11432 sq. mtrs., in the sim of Mauje Ramnagar, Taluka Kalol (for short 'the disputed land') and it is running in the names of the applicant and her son Sanjay Ramabhai. Since the applicant was in need of money, they came to the complainant and talked about sale of the land qua their shares. Therefore, the complainant took advice his advocate and as per advice, it was not possible to purchase the land without block division. When this fact was brought to the notice of the applicant, she agreed that she would make block division/partition and will clear the title and thereafter, execute saledeed of the disputed land. It was agreed to sell the disputed land to the complainant at sale consideration of Rs. 13,00,000/ (Rupees thirteen lacs only and after accepting Rs. 9,00,000/ from complainant, the applicant and her son executed an agreement to sell dated 5/12/2012 before the Notary. That, the applicant had issued a cheque No.050245 to the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant is improper, unjust, illegal, erroneous, against principles of law and facts on record and hence it deserves to be quashed and set aside. That, the conclusion arrived at by the Ld. Trial Court and confirmed by the Ld. Appellate Court are contrary to the facts, law and evidence on record, which has resulted into miscarriage of justice. That, the Ld. Trial Court and Ld. Appellate Court erred in not properly appreciating and relying upon the evidence on record produced by the applicant. That both the courts erred in not considering the facts and documentary evidence on record. That the Ld. Trial Court erred in not considering that the depositions/affidavit of the applicant and other documents. That Ld. Magistrate passed the order without considering the evidence and the provisions of the NI Act.That it is nowhere stated by the respondent No.2 in the complaint, notice Exh.21 and examination in chief Exh.17 that he has received the cheque Exh.18 towards his legal dues. That no demand for specific amount has been made in the notice Exh.21. Thus, the notice does not attract the criminal provisions of the NI Act. That no witness has been cited in the Banakhat Exh.24 and it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrent findings of conviction by both the lower courts are on merits, facts, circumstances and evidence which cannot be unseen. The accused has admitted the offence of Section 138 under the Negotiable Instruments Act in written and documentary evidence which is placed on records. Leaned advocate has drawn attention of this Court in respect of depositions of the parties, documentary evidence on record and urged that the accused has admitted that she had taken an amount of Rs. 9,00,000/ from the complainant and in connection of the same, the said disputed cheque was given. Learned advocate Mr.Barot for the complainant requested this Court to cancel the bail of the accused with a condition to deposit the amount of Rs. 7 Lakhs. Learned advocate for the respondent No.2 has requested to dismiss present application. Before deciding this revision application, first of all, this Court may consider the below mentioned provisions: Sections 138 and 139 of the Negotiable Instruments Act are set out herein below for convenience: "138 Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal court can, in exercise of its discretionary jurisdiction, interfere with an order of conviction in absence of any jurisdictional error or error of law; (2) Whether the payee of a cheque is disentitled to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, of a cheque duly drawn, having been issued in discharge of a debtor or other liability? The trial Court, on analysis of the evidence adduced by the respective parties arrived at the factual finding that the respondentaccused had duly issued the cheque in question for Rs. 9 lacs in favour of the appellantcomplainant, in discharge of a debt or liability, the cheque was presented to the bank for payment within a period of its validity, but the cheque had been returned unpaid for want of sufficient funds in the account of the respondentaccused in the bank, on which the cheque was drawn. Statutory Notice of dishonour of the cheque was duly issued to which there was no response from the respondentaccused. The first appellate court confirmed the factual findings. The trial Court and the Appellate Court arrived at the specific concurrent factual finding that the cheque had ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a written memo with an endorsement of "Today's opening balance insufficient". Thus, the complainant communicated the respondentaccused about returning cheque by the bank authority and requested to clear his amount. He also issued a legal notice through his advocate by RPAD on 19 th October 2013 to the accused, which was duly received by her on 22nd October 2013, however, no payment was made by the respondentaccused nor the notice was responded and thereafter, this complaint was filed by the complainant. He has identified the cheque under the signature of the respondent. Written memo received by him from the bank authority, notice issued by him through his advocate, receipt of RPAD as well as acknowledgment slip of the notice issued by him. It appears from the crossexamination that complainant was frequently visiting Kalol Court for attending his another case pending before the court and the accusedrespondent was known to him since last 1012 years. Of course, no money transactions were made by her with him previously. There was no talk with the accused to make accommodation for Buffalo. He has denied that at that time, agreement to sell Ex. 24 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to him. The complainant had given Rs. 1 lac in the year 201011, and thereafter, given another Rs. 1 lac. This fact was informed by the complainant himself and except this, he has no knowledge. In the crossexamination from the complainant side, he has denied that under the instructions of the accused, he was making false evidence He has admitted in his cross examination that any another money transactions carried out between the parties except Rs. 2 lacs, he has no knowledge. He has further no knowledge about executing of any written agreement to sell for the amount of Rs. 9 lacs. From the evidence of the witness examined by the respondentaccused, case of the prosecution is supported that money transaction was carried out between the parties. An agreement to sell of the land in question was executed before the Notary on 5th December 2012 and it appears that photographs of the parties as well as their signatures are never disputed except in the cross examination of the complainant. Before the learned Additional Sessions Court for the first time argument was advanced by the respondentaccused that it was not a legal debt of the amount shown in the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact. Hon'ble Supreme Court in case of In Laxmi Dyechem vs. State of Gujarat & Ors. Reported in (2012) 13 SCC 375, has reiterated that in view of Section 139, it has to be presumed that a cheque was issued in discharge of a debt or other liability but the presumption could be rebutted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption. This Court held "however, this presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act". In case of Kumar Exports vs. Sharma Carpets, reported in (2009) 2 SCC 513, Hon'ble Supreme Court reiterated that there is a presumption that every negotiable instrument duly executed, is for discharge of a debt or liability, but the presumption is rebuttable by proving the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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