TMI Blog2021 (6) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... in rebuttal varies as in case of a statutory presumption, the accused has to lead the case which appears to be probable, plausible and reasonable from a prudent man which may not be so strict in case of a rebuttal of an ordinary presumption. Admittedly, the cheques, on being presented, were dishonoured with the remark exceeds arrangement meaning thereby there were no sufficient balance therein to cover the said amount and, therefore, it satisfies the ingredients of Section 138 of the Act - The evidence of rebuttal is neither probable nor plausible in the perspective of a prudent man and I am, therefore, amazed how the learned Magistrate have found fault into such transactions. Appeal allowed. - CRA Nos. 007 and 008 of 2018 - - - Dated:- 2-3-2021 - Harish Tandon, J. For the Appellant : Deep Chaim Kabir and S. Ajith Prasad For the Respondents : Amitava Ghosh, Kartik Kr. Ray and Anil Kr. Chakraborthy JUDGMENT Harish Tandon, J. 1. Both the criminal appeals are taken up together as common question of law is raised therein. Apart from the same both the appeals have been filed by a common appellant against a common respondent under section 138 of the Nego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceeding was initiated before the Judicial Magistrate. Subsequently, the accused defaulted in payment of the second and third instalments and the cheques issued in this regard were also presented and represented, but on each occasion were dishonoured with the remarks exceeds arrangements . The statutory notice though served upon the accused/respondent, was not replied to and it appears that there was a delay of 16 days in presenting the complaint before the learned Judicial Magistrate. There was prayer for condonation of such delay which was, in fact, condoned and the process was initiated in both the matters. 4. The accused/respondent took a defence that he never took a loan from the complainant nor there is any outstanding amount in respect of a transaction entered into between them. It is a specific stand of the accused/respondent that the medicine used to be supplied by the complainant and the payments were made and recorded in a register maintained by him and the moment the objection was raised to the supplied goods which has a shorter expiry date the complainant stopped supplying the goods. It is, thus, stated that the business relation between the accused and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivities. 7. I will deal with the findings recorded on the assimilation of the facts stated in the complaint as well as in response thereto and also the evidence of the respective witnesses, later on but, the point relating to the mandatory compliance of Section 190 of the Cr.P.C. and the statutory presumption under section 139 of the Act, that too, to what extent are required to be considered and dealt with, at first. 8. Section 190 of the Cr.P.C. postulates taking of the cognizance of the offences by the Magistrate of First Class upon receiving the complaint of facts, upon police report of such facts and/or upon information received from any person other than the police officer or upon his own knowledge that such offence has been committed. The Chief Judicial Magistrate may also empower any Magistrate of Second Class to take cognizance under the aforesaid provisions as are within his competence to inquire into or try. The cognizance is of indefinite import which means being aware of and once it is used in the Court of law, it can be attributable to the judicial notice or judicial awareness of the facts. There is no prescribed form nor the ritual way of recording that the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 138 of the Negotiable Instruments Act, 1881. The learned Magistrate appears to have overlooked the order passed by his predecessor and surreptitiously jumped into the conclusion that since there was no ritual form of recording as to taking of cognizance, it acts as deterrent in proceeding with the complaint case. Such finding, in my view, is perverse, inasmuch as, in contradiction with the aforesaid order passed in the said proceeding. In view of the aforesaid undisputed facts, I do not want to detain myself any further on such perversity which is patent on the face of the record. 10. There has been a considerable debate on the interpretation of the provision contained under section 139 of the said Act which propels a statutory presumption to be raised on a debt or other liability in favour of the holder of a cheque. The learned Magistrate was emboldened with the judgment of the Supreme Court rendered in case of Krishna Janardhan Bhat (supra) wherein it is held that the presumption under section 139 of the Act is raised for a discharge of the debt of or other liability, but not on legally enforceable debt or other liabilities. 11. The Apex Court also held that the presumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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. 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e letter dated 9-11-2002 was addressed by the respondent after he had issued tow cheques on 7-8-2002 for ₹ 37,00,000 and ₹ 14,00,000 knowing fully well that he did not have sufficient funds in his account. The letter dated 9-11-2002 was an afterthought, and was written to evade liability. This defence also lacked credibility, as the appellants had never asked for return of the alleged cheques for seven years. 22.4. The defence of the respondent that the pronote dated 7-8-2002 signed by him, was allegedly filled by one Mahesh DW 2, an employee of N.R.R. Finances, was rejected as being false. DW 2 himself admitted in his cross-examination, that he did not file any document to prove that he was employed in N.R.R. Finances. On the contrary, the appellant complainants produced PW 2 and PW 4, Directors of N.R.R. Finance Investment Pvt. Ltd., and PW 3, a Member of N.R.R. Chit funds, who deposed that DW 2 was never employed in N.R.R. Finances. 23. The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt. The respondent having admitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is rather admitted by the accused that he used to buy a pharmaceutical goods from the complainant being a wholesaler/distributor of a pharmaceutical company and used to make payments. It is also undisputed that the price of the goods were paid initially and because of a cordial relationship having developed, such goods were bought on credit. The accused has stated in the deposition that such payments used to be recorded in a register maintained by the complainant. But, there is no document forthcoming that moment the demand for a price of the goods sold and delivered was made by the complainant, any letter or communication was made raising such facts. The plea of the promissory note having obtained by force does not instill any confidence that it has any semblance truth in it. Though the accused has said that he was forced to leave his shop as the complainant came with four or five persons in presence of the two witnesses cited in this regard but there is no follow up action taken by him either by lodging a complaint or otherwise. There was a complete silence on the part of the accused. Even after the service of statutory notice under Section 138 of the Negotiable Instruments Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
