TMI Blog2021 (2) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... it means that Suman Bhattacharjee is the person in whose name the work was executed and the bills also were raised in favour of Suman Bhattacharjee. The said Shri Bhattacharjee would naturally distribute the shares of the complainant and the accused as agreed as per the oral partnership agreement, if the facts as adverted by the complainant is believed. It is further surfaced from the examination-in-chief adduced by the complainant that though they entered into an agreement on 60:40 ratio but the complainant had stated that they deposited security money to the tune of ₹ 10,00,000/- out of which he paid ₹ 5,00,000/- against security deposit that is in equal share to that of the accused. The complainant did not anywhere mention about the total estimated cost of work which they executed in the name of Suman Bhattacharjee. That apart, it appears hard to digest for this Court that when the complainant had invested by way of depositing 50 % of the security deposit equal to that of the accused, then, why the complainant and the accused had decided to invest at 60:40 ratio. Ironically, Suman Bhattacharjee in whose name the work was executed was not cited as witness by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the investment of complainant would be 40 per cent of the total capital investment on the condition that he would supervise the entire work including collecting of materials from the market on credit. It is specifically stated in the complaint that the accused-respondent taking advantage of his close relationship with Suman Bhattacharjee had received all the payments of the work and, finally, on 28.01.2014, in presence of Shri Ratan Miah @ Nur Ahmed, Shri Habul Deb and Shri Debasish Roy, both the complainant and the accused- respondent had arrived at the final settlement. After completion of work and finalization of the account, it was revealed that the complainant was entitled to get an amount of ₹ 4,79,294/- only from the respondent. It was also found that the complainant was entitled to get back 50 per cent of the total security deposit of ₹ 10,00,000/- i.e., ₹ 5,00,000/-. According to the complainant, the respondent had a legal debt of ₹ 9,79,294/- towards the complainant and out of the said amount he paid ₹ 1,75,000/- by cheque to the complainant which was duly encashed and, therefrom, after encashment of the said cheque, the legal liability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said cheques on 4.7.15 and both the cheques were returned dishonoured with reason account closed on 6.7.15. Subsequently, the complainant issued demand notice upon you through registered post but you did not pay the amount within 15 days of receipt of the notice and it appears that you have committed an offence punishable U/S 138 of NI Act, and within my cognizance. 8. After perusal of the record, it is found that the complainant-appellant submitted his examination-in-chief and he was accordingly cross-examined. 9. On closure of the evidence of the complainant side, the accused-respondent was examined under Section 313(1)(B) of Cr.P.C., to which he denied the entire allegation and declined to adduce defence evidence. 10. Perusal of the examination sheet of the accused- person under Section 313(1)(b) of Cr.P.C. indicates that the accused-respondent had specifically stated therein that he had not given the cheque nor had written the body of the said cheque. 11. After hearing the learned counsels and on appreciation of evidences adduced by the complainant-appellant, the learned Trial Court came to the finding that:- The complainant had failed to prove his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) No(s). 3858/2019 titled as Pavan Diliprao Dike Vs. Vishal Narendrabhai Parmar decided on 12.07.2019. 16. I have gone through the examination-in-chief submitted by the complainant as well as the relevant documents the complainant had relied upon to substantiate his claim which are as follows:- 1. Cheque bearing No.168338 dated 06.04.2015 amounting to ₹ 3,04,294/- which is marked as Exbt.1. 2. Cheque bearing No.168339 dated 06.04.2015 amounting to ₹ 5 lakh which is marked as Exbt.2. 3. 2 deposit slips dated 04.07.2015 for the amount of ₹ 3,04.294/- and for amount of ₹ 5 lakh which is marked as Exbt.3 and Exbt.4. 4. Return memo for an amount of ₹ 3,04,294/- marked as Exbt.5. 5. Return memo for an amount of ₹ 5. lakh marked as Exbt.6. 6. Demand notice dated 20.04.2015 along with postal slip in 5 sheets marked as Exbt. 7/1, 7/2, 7/3, 7/4 and 7/5. 7. Confirmation letter dated 13.08.2015 issued by Postal Authority marked as Exbt.8. 8. Demand notice dated 11.07.2015 along with postal slip with 4 sheets marked as Exbt.9/1, 9/2, 9/3 and 9/4. 9. Letter dated 11.08.2015 regarding confirmation of the delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntentions and principles laid down by the Courts to judge the sustainability of the findings returned by the learned Trial Court. 22. Section 118 of the Negotiable Instrument Act, 1881 is reproduced here-in-below:- 118. Presumptions as to negotiable instruments.- Until the contrary is proved, the following presumptions shall be made: (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date: date every negotiable instrument bearing a date was made or drawn as such date; (c) as to time of acceptance: that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer: that every transfer of negotiable instrument was made before its maturity; (e) as to order of indorsement: that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp: that a lost promissory note, bill of exchange or cheque was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability. The expression unless the contrary is proved indicates that the presumption under Section 139 of the Act is rebuttable. Terming this as an example of a reverse onus clause the three Judge Bench of this Court in Rangappa (supra) held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities. This Court held thus: 28 In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30. However, it is also well settled by a wealth of decisions of the Apex Court as cited here-in-above that the presumption to be drawn under Section 138 and 139 of the N.I. Act in favour of the holder of the cheque is always rebuttable and it depends on the facts and circumstances of a particular case. 31. Ultimately, test would be, in my considered view, whether the complainant being a holder of the cheques has been able to prove that the cheques were issued by the accused in discharge of any enforceable debt or liability. To return the finding of the guilt, the Court had to see whether the accused has been able to rebut the presumption drawn under Sections 138 139 of the N.I. Act either by adducing evidence on his behalf or placing his reliance on the evidence and materials brought on record by the complainant i.e., the holder of the cheque himself and in this process, the Court would be guided by preponderance of probability. [emphasis supplied] 32. The learned Trial Court has correctly arrived at a finding that the mere factum of issue and dishonoring of cheque by the accused to the complainant is not sufficient to criminally implicate the accused under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortant aspect that Suman Bhattacharjee had paid the entire amount out of the said bills to the complainant and the accused. Again, the complainant has deposed in his evidence that he came to learn from the accused that Suman Bhattacharjee had paid the entire amount of bill he received out of the work but the complainant had failed to produce Suman Bhattacharjee to substantiate this statement for the reasons best known to him. In my opinion, Suman Bhattacharjee is the best person to lay evidence and substantiate the accusation levelled against the accused-respondent by the complainant-appellant. 35. On further appreciation and evaluation of the deposition of the complainant, it transpires that on negotiation to pay a sum of ₹ 5,00,000/- and ₹ 4,79,294/-, the former being the money against the security deposit and the latter being the money out of the profit of the work which the complainant was entitled to receive from the accused, the accused-respondent had agreed to pay, the said sum of ₹ 9,79,294/-. But none of the negotiators namely, Ratan Miah @ Nur Ahmed, Habul Deb and Debasish Roy came forward to substantiate this fact as stated by the complainant. Even t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration of the law as contemplated in Sections 138 and 139 of the N.I. Act, existence of legally enforceable/recoverable debt is not a subject of presumption under Section 139 of the N.I. Act. This provision only raises a presumption in favour of the holder of the cheque that the same has been issued in discharge of any debt or any other liability. 42. On critical analysis of the facts and circumstances coupled with the evidence and materials brought on record, in my conscious view, the accused-respondent has successfully rebutted the presumption under Section 139 of the N.I. Act and the defence story stands probabalised keeping in view the law enunciated by a three Judge-Bench of Supreme Court in Ranggapa Vs. Sri Mohan passed in Criminal Appeal No.1020 of 2010 reported in (2010) 11 SCC 441 and subsequently, in the case of Anss Rajashekar(supra) and Basalingappa(supra). The defence of the accused-respondent that there was absence of a legally enforceable debt, was rendered probable on the basis of the materials on record. Consequently, the order of acquittal passed by the learned Trial Court was found to be justified. 43. In the above conspectus, the instant appeal stand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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