TMI Blog2021 (8) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... and he obtained bail from the court after receiving notice from the court. Admittedly, the legal notice in connection with the cheque was sent to the petitioner on 27.09.2010 by registered post with A/D. There is no evidence regarding service of legal notice upon the petitioner, much less the date of service of notice. It has been simply alleged that the petitioner did not pay the cheque amount in spite of service of notice. There is no finding recorded by the learned courts below regarding service of legal notice upon the petitioner, much less the date of receipt of legal notice by the petitioner although the petitioner had specifically denied receipt of the legal notice - this Court finds that the Complainant mentioned the cause of action in the complaint from 31.03.2010, 17.04.2010, 21.09.2010 (date of cheque return memo) and continuing till the date of filing of the complaint case, filed on 04.11.2010. The condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the complaint itself was not maintainable on the day it was filed and accordingly, the petitioners could not have been convicted under the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te a document of receipt of the cheque amount i.e Exhibit-A - This Court is of the considered view that the defence taken by the petitioner on the basis of Exhibit-A that the entire cheque amount was returned by the petitioner to the complainant was certainly a probable defence when seen in the light of the principles of preponderance of probabilities and the appellate court erred in law in rejecting the defence of the petitioner and not considering the case on the principles of preponderance of probabilities . This Court is of the considered view that the materials on record suggest that the accused-petitioner had discharged his burden and rebutted the statutory presumption under Section 139 of the aforesaid Act of 1881 on the principles of preponderance of probabilities and the complainant failed to further shift the burden to the accused petitioner. This Court finds that the accused has been able to displace presumption under Section 139 of the aforesaid Act of 1881 and established a probable defence whereby, the onus again shifted to the complainant and the complainant failed to discharge the same - the conviction of the petitioner for offence under Section 138 of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even if deemed service of notice sent under registered cover is taken into consideration, the complaint itself was pre-mature as it was filed prior to expiry of the statutory time line. The other point involved in the present case is whether the learned appellate court was justified in setting aside the trial court s judgment of acquittal of the petitioner. She submits that the judgment of acquittal passed by the learned trial court was certainly one of the possible views; there was no illegality or perversity in the judgment of acquittal passed by the learned trial court calling for interference by the learned appellate court; the appellate court did not record any perversity in the judgment of acquittal passed by the learned trial court. She submits that the manner in which the learned appellate court has exercised the appellate jurisdiction in the matter of setting aside the judgment of acquittal by the learned trial court calls for interference in revisional jurisdiction of this Court in order to meet the ends of justice. Arguments on behalf of the opposite parties 7. Learned counsel appearing on behalf of the opposite parties have submitted that the impugned judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the trial court is either perverse or wholly unsustainable in law. 10. Having said so, the Hon ble Supreme Court in para 12 itself considered the principles in the light of Section 138 of aforesaid Act of 1881 and held that 12 . . The principles aforesaid are not of much debate. In other words, ordinarily, the appellate court will not be upsetting the judgment of acquittal, if the view taken by the trial court is one of the possible views of matter and unless the appellate court arrives at a clear finding that the judgment of the trial court is perverse i.e. not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law. Such general restrictions are essentially to remind the appellate court that an accused is presumed to be innocent unless proved guilty beyond reasonable doubt and a judgment of acquittal further strengthens such presumption in favour of the accused. However, such restrictions need to be visualised in the context of the particular matter before the appellate court and the nature of inquiry therein. The same rule with same rigour cannot be applied in a matter relating to the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof. 28. In the absence of compelling justifications, rever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. 21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof. 14. The Hon ble Supreme Court also referred to another judgment reported in (2009) 2 SCC 513 (Kumar Exports Vs. Sharma Carpets) wherein it was observed and held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. 15. It has been held in para 13 of the said judgement of Rohitbhai Jivanlal Patel (supra) that for determination of the point as to whether the court was justified in reversing the judgment and order of the trial court and convicting the appellant for the offence under Section 138 of the NI Act, the basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14,966/- through registered post with A/D dated 27.09.2010 - Exhibit-5. There is no evidence on record regarding service of legal notice upon the petitioner, much less the date of service of notice. 04.11.2010- The complaint case was filed against the petitioner by the complainant on 04.11.2010. 18. At the stage of trial, the complainant was the sole witness and has supported the prosecution case. The complainant exhibited the aforesaid documents. However, there was no evidence regarding service of legal notice dated 27.09.2010 upon the petitioner sent through registered post with A/D dated 27.09.2010, much less the date of service of notice. The complainant was fully cross examined. She deposed that she was the partner of M/s Lalie Automobile Servicing Engineering and presently she was the proprietor of the said firm and earlier she was the partner of firm namely Dhupeswar Enterprises of the petitioner. 19. The petitioner entered into the defence and produced himself as defence witness. He also deposed that the complainant was the partner of his firm namely M/s Lalie Automobile Services Engineering and the complainant is also his sister-in-law. He deposed that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of notice. It has been simply alleged that the petitioner did not pay the cheque amount in spite of service of notice. There is no finding recorded by the learned courts below regarding service of legal notice upon the petitioner, much less the date of receipt of legal notice by the petitioner although the petitioner had specifically denied receipt of the legal notice. 23. This Court finds that the Complainant mentioned the cause of action in the complaint from 31.03.2010, 17.04.2010, 21.09.2010 (date of cheque return memo) and continuing till the date of filing of the complaint case, filed on 04.11.2010. 24. This Court is of the considered view that date of service of notice of cheque bouncing is a material date for the purposes of calculation of time line giving a cause of action for filing a complaint case under Section 138 of Negotiable Instruments Act, 1881. It is for the Complainant to prove that the cause of action arose as per the provisions of Section 138 proviso (c) of Negotiable Instruments Act, 1881, which clearly provides that the cause of action arises upon expiry of 15 days from the date of receipt of cheque bouncing notice. In absence of the relevant date re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) the Hon ble Supreme Court has dealt with the conditions which are required to be satisfied, including the time line, for filing a case alleging offence under Section 138 of the aforesaid Act of 1881 and consequent presumption to be drawn, interalia, under Section 139 of the said Act of 1881. It has been held by the Hon ble Supreme Court at Paragraphs- 30 to 38 as under: 30. Section 138 of the NI Act comprises of the main provision which defines the ingredients of the offence and the punishment that would follow in the event of such an offence having been committed. Appended to this section is also a proviso which has three clauses viz. (a), (b) and (c). The offence under Section 138 is made effective only on fulfilment of the eventualities contained in clauses (a), (b) and (c) of the proviso. For completion of an offence under Section 138 of the NI Act not only the satisfaction of the ingredients of offence set out in the main part of the provision is necessary but it is also imperative that all the three eventualities mentioned in clauses (a), (b) and (c) of the proviso are satisfied. Mere issuance of a cheque and dishonour thereof would not constitute an offence by itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of the law. It is not the question of prematurity of the complaint where it is filed before the expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of 15 days from the date of service of notice on the drawer/accused has expired, such complaint was legally maintainable and, hence, the same is overruled. 38. Rather, the view taken by this Court in Sarav Investment Financial Consultancy wherein this Court held that service of notice in terms of Section 138 proviso (b) of the NI Act was a part of the cause of action for lodging the complaint and communication to the accused about the fact of dishonouring of the cheque and calling upon to pay the amount within 15 days was imperative in character, commends itself to us. As noticed by us earlier, no complaint can be maintained against the drawer of the cheque before the expiry of 15 days from the date of receipt of notice because the drawer/accused cannot be said to have committed any offence until then. We approve the decision of this Court in Sarav Investment Financial Consultancy and also the judgments of the High Courts which have taken the view following this judgment that the complaint under Section 138 of the NI Act filed before the expiry of 15 days of service of notice could not be treated as a complaint in the eye of law and criminal proceedings initiated o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would again shift to the complainant? 34. Having decided point no. (a) as aforesaid, there may not be any need to enter into point no. (b). 35. However, this Court finds it proper to touch upon issue no. (b) also as the learned trial court had acquitted the petitioner and the learned appellate court had set-aside the judgement of acquittal which is the impugned judgement before this Court. 36. An argument was raised before the learned trial court that the examination - in - chief of the accused- petitioner as witness could not be filed on affidavit. The learned trial court recorded that, the evidence of the accused was filed on affidavit and the counsel for the complainant had cross-examined him at length and accordingly, the objection raised on behalf of the complainant in connection with recording of evidence of the accused under Section 315 of Cr.P.C. by way of examination-in-chief on affidavit, was rejected. 37. The issuance of cheque is not in dispute. Before the trial court, the argument of the counsel for the accused- petitioner was that the amount taken by the petitioner was returned in instalments and a receipt (Exhibit-A) was also issued by the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow of reasonable doubts and set-aside the judgement of acquittal of the petitioner passed by the learned trial court. 39. This Court finds that the learned appellate court, while deciding the appeal, framed the question as to whether the appellant had proved the charge against the accused beyond all shadow of reasonable doubt and whether the judgement passed by learned trial court needed any interference. The learned appellate court also neither referred to Section 139 of the aforesaid Act of 1881 nor considered the presumption under Section 139 nor examined the discharge of burden of proof on the principles of preponderance of probabilities as crystalised by the Hon ble Supreme Court in the aforesaid judgements. 40. Thus, on the one hand, the learned trial court, interalia, considered Exhibit- A and held that the case of the complainant as well as the accused was based on documentary evidences and accordingly, the case against the accused had become doubtful. On the other hand, the learned appellate court was of the view that the defence failed to establish the genuineness of Exhibit-A and recorded that the basic ingredients for offence under Section 138 of the Negotiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the argument advanced by the learned counsel for the complainant regarding signed blank page retained by the accused -petitioner and its misuse, was not based on any material on record. There is no explanation on record from the side of the complainant in connection with Exhibit-A and the accused-petitioner, the sole defence witness, was neither cross-examined on this point nor any suggestion was put to him alleging that Exhibit A was prepared by misusing blank page signed by the complainant. This Court finds that the learned appellate court rejected the genuineness of Exhibit- A by applying the principle of strict proof and did not examine Exhibit-A in the light of the principles of preponderance of probabilities . This Court is of the considered view that the defence taken by the petitioner on the basis of Exhibit-A that the entire cheque amount was returned by the petitioner to the complainant was certainly a probable defence when seen in the light of the principles of preponderance of probabilities and the appellate court erred in law in rejecting the defence of the petitioner and not considering the case on the principles of preponderance of probabilities . 44. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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