TMI Blog2021 (11) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... the reply to the demand notice) is insufficient to overcome the prosecution evidence, as such it is held that the prosecution has proved its case by adhering to the provisions and principles of Negotiable Instruments Act. The petitioner have failed to make out any case for interference - Application dismissed. - C.R.R. 1671 of 2017 With CRAN 2 of 2017 (Old No. CRAN 2846 of 2017) + CRAN 3 of 2017 (Old No. CRAN 3524 of 2017) + CRAN 4 of 2018 (Old No. CRAN 3752 of 2018) - - - Dated:- 16-11-2021 - THE HON BLE JUSTICE TIRTHANKAR GHOSH For the Petitioner : Mr. Debasish Roy, Mr. Dilip Kumar Maity Mr. Prasanta Kumar Das For the Opposite Party no.1 : Mr. Pawan Kumar Gupta Ms. Sofia Nesar Mr. Santanu Sett ORDER Tirthankar Ghosh, J:- The present revisional application has been preferred against the judgment and order dated 13th April, 2017 passed by the learned Additional Sessions Judge, 2nd Court, Krishnagar, Nadia, in Criminal Appeal No. 05 of 2017 wherein the learned Appellate Court was pleased to dismiss the appeal and affirmed the judgment and order of conviction and sentence passed by the learned Judicial Magistrate, 2nd Court, Krishnagar, Nadia in connec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in order to prove its case relied upon the oral evidence of the complainant and 9 documents while the defence/accused/petitioner in order to rebut the prosecution case examined two witnesses which included the accused himself and one Arun Kumar Khanderwal. The documents which have been relied upon by the prosecution are: (i) Disputed Cheque No. 041051 dated 24.02.14 Exhibit-1, (ii) The deposit slip of Bank of Baroda dt. 22.04.14 Exhibit-2, (iii)Return memo of dated 23.04.14 Exhibit-3, (iv) Copy of demand notice dated 19.05.14-Exhibit-4, (v) Postal receipt of notice dated 19.05.14- Exhibit-4/1, (vi) Returned A/D card of demand notice Exhibit-4/2, (vii) Reply of demand notice dated 19.06.14 Exhibit-5, (viii) Certified copy of sale deed no.18852/14 Exhibit-6, (ix) Certified copy of sale deed no. 18853/14 Exhibit-6/1. The documents which have been relied upon by the accused/defence before the learned trial Court are: (i) Deposit slip of Bank of Baroda dated 18.08.14 Exhibit-A, (ii) Copy of Cheque no.000008 dated 18.08.14 Exhibit-B, (iii) Bank transactions of accused dated 18.04.14- Exhibit- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to state that even if the fact as stated by the accused is correct then also the payment was made on 18.08.2014 which was much beyond the period of 15 days from the date of receipt of the demand notice which was issued by the complainant. It would be pertinent here to rely on Ext.5 which was an Advocate s Letter issued on behalf of the present petitioner and admitted in evidence as Ext. 5. The contents therein categorically states that a cheque amounting to rupees ten lakh was handed over pursuant to registration of the sale deed but the same was not allowed to be en-cashed as it was a condition precedent that the same could be en-cashed only on delivery of the original sale deed, CS Record and RS Record and other documents which the complainant did not deliver to the present petitioner, such letter was dated on 19.06.2014. Therefore, there is no dispute that no payment was made in respect of the dishonoured cheque within the statutory period of time as contemplated under the provisions of Section 138 of the Negotiable Instruments Act. The evidence further reflects that there were two sale deeds which were marked as Ext.6 and Ext.6/1 in respect of two different properties and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed not for discharge of any debt or liability in terms of Section 138 of the Act, which reads as under:- 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 for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 8 [a term which may be extended to two years'], or with fine which may extend to twice the amount of the cheque, or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defendantaccused cannot be expected to discharge an unduly high standard or proof. 16. It is well settled that the proceedings under Section 138 of the Act are quasicriminal in nature, and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under the Act. 17. Likewise, under Section 139 of the Act, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced by the accused which on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved. I have considered the arguments advanced by both the sides which were in fact reiteration of their pleadings which was taken up before the trial Court as well as the appellate Court and I have also considered the judgments delivered by the trial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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