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TMI Blog2022 (11) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... ithu Ghosh. The allegations made in the petition of complaint were to the effect that the complainant and the accused had business relationship and as such they were known to each other. The accused was chairperson of M/s. Sun Creative Images Pvt. Ltd. and on or about 25.06.07 the complainant entered into an agreement for telecasting a serial 'Ghatak' in Sun TV Bangla. It was agreed by and between the parties that there were number of episodes and each episode was of 23½ minutes. For the said purpose as security deposit a sum of Rs.3,00,000/- was tendered. A further sum was demanded by the accused in order to incorporate the TV channel namely Sun TV Bangla, which the complainant collected from his friends and gave him with a hope that his serial 'Ghatak' would be telecast. It has been alleged that from 26.06.2008 to 12.12.2008 on different dates the complainant paid by cash a sum of Rs.9,70,000/-. In discharge of such debt and legal liability the accused issued an account payee cheque in favour of the complainant for a sum of Rs.9,70,000/- bearing Cheque No. 767432 dated 12.12.08 drawn on Punjab National Bank, G.T. Road Branch, Burdwan. The said cheque was presented several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and return memo dated 28.04.209; Ext.6 and Ext.6/1, deposit slip dated 12.05.09 and bank return memo dated 14.05.09; Ext.7 and Ext.7/1, deposit slip dated 08.06.09 and bank return memo dated 09.06.09; Ext.8, demand notice dated 23.06.09; Ext. 8/1, posted receipt of demand notice dated 23.06.09; Ext.9, envelope which was refused by the accused. PW1, Subrata Bose, complainant in his evidence stated that the affidavit- in-chief which was filed was drafted as per his instruction and he signed the same after going through the contents in each of the pages. The complainant in course of his examination-in-chief on dock also identified the cheque bearing no.767432 dated 12.12.08 drawn on Punjab National Bank, Bardhaman Branch, amounting to Rs.9,70,000/- which was issued by the accused Mithu Ghosh. The witness also identified the deposit slips by way of which the same cheque was presented on 12.12.08, 01.01.09, 17.03.09, 27.04.09, 12.05.09 and 08.06.09; the witness also identified bank return memos in respect of each of the presentation so made which were dated 15.12.08, 02.01.09, 19.03.09, 28.04.09, 14.05.09 and 09.06.09, the deposit slips and the bank return memos were respectively mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned trial Court was the decision of the Hon'ble Supreme Court in Hiten P Dalal -Vs. - Bratindranath Banerjee reported in (2001) 6 SCC 16 and Maruti Udyug Ltd. Vs. Narendra reported in (1999) 1 SCC 113, wherein it has been held by the Hon'ble Supreme Court that by virtue of Section 139 of the N.I. Act the Court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the contrary is proved. According to the learned trial Court although the complainant in the instant case has produced number of documents which would satisfy the requirements of the Negotiable Instrument Act yet the defence/accused did not produce a single document and the defence case was only a case of mere denial. What further weighed with the learned trial Court was that although the complainant relied upon number of documents and also orally deposed to prove his case but the accused neither filed any documents or examined any witness to rebut the prosecution case. The learned trial Court after considering the overall oral and documentary evidence which surfaced in course of the trial of the case was of the opinion that the surrounding circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant is required to prove independently that the cheque in question was issued by the accused in discharge of liability or a legally recoverable debt. The complainant in the present case has failed to discharge such liability as he has not been able to prove that any dates also in respect of which money was advanced or given as loan to the accused. It has been observed by the learned Appellate Court that the cheque in question was signed by the complainant with a different ink and the particulars regarding the date, name and the amount which has been filled up was with different ink, no chit of paper has been produced by the complainant in support of such transaction, the infirmities according to the appellate Court are sufficient for drawing inference in favour of the accused that the cheque was never issued in discharge of liability. With the aforesaid observation the learned Appellate Court decided to set aside the order of conviction and sentence so passed by the learned Trial Court on 07.01.17. Mr. Niladri Sekhar Ghosh, learned Advocate appearing for the appellant submitted that the cheque in question was admitted in evidence without any objection and the learned appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns cited by the appellate Court and the trial Court in their judgment, some precedents of the Hon'ble Supreme Court are required to be considered. In Oriental Bank of Commerce -Vs. - Prabodh Kumar Tewari reported in 2022 SCC OnLine SC 1089 the relevant paragraphs are set as follows: "4. The respondent admits that he signed and handed over a cheque to the appellant. According to the respondent a signed blank cheque was handed over by him. The question which arises in the appeal is whether the High Court was correct in permitting the respondent to engage a hand-writing expert to determine whether the details that were filled in the cheque were in the hand of the respondent. For the reasons set out below, we have allowed this appeal against the order of the High Court for the reason that Section 139 of the NI Act raises a presumption that a drawer handing over a cheque signed by him is liable unless it is proved by adducing evidence at the trial that the cheque was not in discharge of a debt or liability. The evidence of a hand-writing expert on whether the respondent had filled in the details in the cheque would be immaterial to determining the purpose for which the cheque was hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 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 citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."" In P. Rasiya -Vs. - Abdul Nazer reported in 2022 SCC OnLine SC 1131, the Hon'ble Supreme Court has dealt with the issue relating to nature of transactions and source of funds of the complainant in the backdrop of the provisions of Section 138 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odified by the learned Sessions Court is hereby restored. Now, the accused be dealt with as per the order passed by the first Appellate Court/Sessions Court." In Tedhi Singh -Vs. - Narayan DassMahant reported in (2022) 6 SCC 735 the Hon'ble Supreme Court was pleased to deal with the manner in which complainant is expected to lead evidence in a proceeding under the provisions of Section 138 of N.I. Act. It has been held that unless the accused in reply notice to the statutory notice sent is able to set up a case regarding the capacity of the complainant there is no requirement of the complainant to lead such evidence. In case the accused intends to demonstrate he has to examine his witness and place documentary materials to rebut the prosecution or the complainant's case. The following paragraphs of the cited judgment require consideration and are set out as follows: "8. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the NI Act provides that court shall presume that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. This pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant is in peril for the reason that the accused has established a probable defence." In the present case the only relevant answers in cross-examination were a mode of denial wherein PW1 answered in respect of a question of the accused that "Not a fact that, the accused persons never issued cheque of the amount Rs.9,70,000/-". A series of question were asked in reply to which the following answers were given by the PW1 in cross-examination which are set as follows: "Not a fact that, I did not give any money to the opposite party for which I am (read 'have') demanded my dues from him. Not a fact that, I cannot claim any dues (read 'dues') from him. Not a fact that, I have filed a false and fabricated case. Not a fact that, I have not filed any bank related document. Not a fact that, I have deposed falsely before this court." In this case the accused did not adduce any evidence nor did she rely upon any documentary materials to rebut the prosecution or the complainant's case. As such the aforesaid three judgments of the Hon'ble Supreme Court assumes importance in view of the fact that all the questions which were confronted relate to source of funds of the complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, no evidence to that effect is reflected in the cross-examination of PW1 (the sole witness in this case). Further, no materials have been produced to show as to how the cheque was in possession of the complainant as there are no allegations of lost cheque or the signature in the cheque being forged. Although it is permitted in a case of such nature to raise a probable defence from the available materials in the cross-examination of the prosecution witness only, but the nature of the cross-examination and the probable defence raised by the accused do not qualify as a rebuttal to the provisions under Section 139 of the N.I. Act and the learned Appellate Court unnecessarily resorted to the issue of difference in ink as no case has been made out by the accused for the cheque having been lost or the same was obtained by coercion. Having regard to the factual circumstances presented by the prosecution/complainant in this case in its evidence and the accused having failed to create or raise any defence to rebut the statutory presumption and having regard to the aforesaid three cited judgments of the Hon'ble Supreme Court the order of the Appellate Court calls for interference. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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