TMI Blog2022 (11) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent had produced Tax Invoice and Challan of selling computers, laptops and accessories to the petitioner. Though Mr. Tiwari, the learned counsel for the petitioner has submitted that the respondent has withdrawn the relevant evidence and because of non-consideration of the same by the learned courts below in their judgments leads to perversity, yet, the same would not disentitled the learned courts below from drawing the statutory presumption available under section 139 of the N.I. Act. What is to be noted here is that the petitioner also failed to make any such prayer before the learned court below for production of the said documents. It also cannot be said that there is any material alteration of the cheques and no adverse inference can be drawn against the respondent and sections 20 and 87 of the N.I. Act would not come into aid of the petitioner. Mr. Deka, the learned counsel for the respondent has rightly pointed out this in his argument and submits that since signed cheques in questions were respondent in discharge of liability, non-existence of which could not be established by leading cogent evidence, it can reasonably be presumed that the cheque was filled in by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he account of the petitioner. Thereafter, the respondent has issued legal notice to the petitioner demanding payment of the cheque amounts. But, the petitioner had failed to make the payment despite of receipt of notice. Then the respondent had filed a complaint before the learned Chief Judicial Magistrate, North Lakhimpur, under section 138 of the N.I. Act. Upon the said complaint, the learned Chief Judicial Magistrate, North Lakhimpur, had taken cognizance and issued process to the petitioner to appear before him and to stand trial. Accordingly, the petitioner appeared before the learned court below and the learned court below had explained the particulars of offence to the petitioner, to which the petitioner had pleaded not guilty and claimed to be tried. Thereafter, examining the witnesses and hearing learned the Advocates of both the parties, the learned Chief Judicial Magistrate; North Lakhimpur has convicted the petitioner under section 138 of the N.I. Act and sentenced him as aforesaid. Being highly aggrieved, the petitioner had filed an appeal against the judgment and order of the learned Chief Judicial Magistrate, before the Learned Sessions Judge, North Lakhimpur. Therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to appreciate that there was material discrepancies in the evidence of the complainant which shakes his credibility as he had given different versions in his examination in chief and cross examination; [ix] That, the learned court below has failed to appreciate that though the presumption under section 139 of the Act is available in favour of the respondent that there is also corresponding presumption of innocence in favour of the petitioner therefore, it is contended to allow this petition by setting aside the impugned judgment passed by the learned court below. 5. Mr. Tiwari, the learned Senior Counsel, appearing for the petitioner, submits that the cheques in question, in fact are bill of exchange, and there was no legally enforceable debt between the parties, in discharge of which the petitioner had issued the aforesaid cheques. Mr. Tiwari further submits that the blank cheques were issued by the petitioner as security, and the same were filled up and presented by the respondent and the same was returned as unpaid due insufficiency of the fund and the cheque amount was not paid on demand. Mr. Tiwari further submits that though the presumption under section 139 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minor in nature and as such they are not material and that in view of admission made by the petitioner that there was business transaction between him and the respondent, and issuance of blank signed cheques to the respondent by him, the presumption under section 139 of the N.I. Act is very much available and it does not matter who had filled up the cheque and it cannot be considered as material alteration. Mr. Deka further pointed out that though the petitioner has adduced defence evidence, yet, the same failed to outweigh the evidence of the respondent and that no adverse inference can be drawn as contended by the learned counsel for the petitioner. Mr. Deka further pointed out that in view of section 87 of the N.I. Act consent is required when material alteration in the instrument is required to be done. But here in this case no material alteration has been done and that though it is contended that the Tax Invoice and the Challan have not been produced before the courts below, yet, the petitioner has failed to file any application under section 91 of the Cr.P.C. for production of the aforesaid Tax Invoice and Challan and he had not made any such exercise during the trial and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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. 11. It is further held that:- 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 4 (2021) 5 SCC 283 5 (2020) 15 SCC 348 6 (2010) 11 SCC 441 Crl.A.1260/2022 7 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. 12. In the case in hand I find that there is no dispute that there was business transaction between the petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oice and Challan of selling computers, laptops and accessories to the petitioner. Though Mr. Tiwari, the learned counsel for the petitioner has submitted that the respondent has withdrawn the relevant evidence and because of non-consideration of the same by the learned courts below in their judgments leads to perversity, yet, the same would not disentitled the learned courts below from drawing the statutory presumption available under section 139 of the N.I. Act. What is to be noted here is that the petitioner also failed to make any such prayer before the learned court below for production of the said documents. Mr. Deka, the learned counsel for the respondent has rightly pointed this out during argument. I am afraid the ratio laid down in the case of Gopal Krishnaji Ketkar (supra) would come into aid of the petitioner as the ratio laid down therein is restricted to its own facts. 15. It also cannot be said that there is any material alteration of the cheques and no adverse inference can be drawn against the respondent and sections 20 and 87 of the N.I. Act would not come into aid of the petitioner. Mr. Deka, the learned counsel for the respondent has rightly pointed out this i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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