TMI Blog2022 (12) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... are not disputed as that of the accused, the provisions of Section 139 of N.I. Act stands attracted immediately. Magistrate is duty bound to draw a presumption under Section 139 of N.I. Act in favour of the complainant and there is no other option available otherwise. The entire material placed by the parties before the trial Court in connection with Exh.24 i.e. promissory note dated 18th April, 2012 nowhere remotely suggests that the accused succeeded in proving contrary thereby dislodging presumption under Section 118 of the N.I. Act. The entire case of the complainant is based on a cheque dated 15th June 2012 for ₹3,00,000/- issued by the accused towards discharge of the amount mentioned in the promissory note at Exh-24. Therefore, apart from the presumption under Section 118 of the N.I. Act, the complainant is also having the support of presumption under Section 139 of the N.I. Act - only because the complaint is lodged with the police station on 2nd July 2012 i.e. on the date when such cheques were already dishonoured, no interference could have been drawn by the learned Court in favour of the accused so as to dislodge presumption under Section 139 of the N.I. Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t received legal notice and replied vide her reply dated 27th July 2012 taking false defence. Accordingly, the appellant lodged complaint under Section 138 of the N.I. Act before the learned Magistrate who after taking cognizance, issued process against the respondent. After the trial concluded, the learned Magistrate dismissed the complaint and acquitted the respondent on the ground that the appellant failed to prove that cheques were issued towards legally enforceable debt. 4. Parties are hereinafter called as a complainant and accused as arrayed before the Trial Court for the sake of brevity. 5. The learned Senior Counsel Ms. Agni, appearing on behalf of the complainant, submitted that both the cheques were issued towards legally enforceable debt and supported by promissory notes which the learned Magistrate has completely ignored. She submitted that observation of the learned Magistrate that promissory notes were not proved for not examining the notary, is unwarranted as the learned Magistrate has failed to take into consideration presumption under Section 118 of the N.I. Act in connection with promissory notes. She then submitted that the accused issued both the cheques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then submitted that the complaint as well as legal notice did not disclose true facts and therefore, evidence brought on record is against the pleadings. He submitted that there is no mention of execution of promissory notes in the legal notice as well as in the affidavit filed by the complainant. He then submitted that one promissory note was admittedly executed by the husband of the accused and therefore, there is no presumption that the wife i.e. the accused is liable to repay such amount. There are no averments in the complaint that the accused undertook to repay the amount mentioned in the promissory note executed by her husband. He then submitted that the cheque which is in respect of the promissory note issued by the husband of the accused cannot be considered as issued towards legally enforceable debt and therefore, on that count the learned trial Court was fully justified in rejecting contentions raised in the complaint as well as in the evidence. 9. Learned Advocate Shri Ramaiya then claimed that evidence suggests that these cheques were taken forcibly by the complainant and that an amount of ₹ 2,30,000/- was already paid and therefore the cheque of ₹3,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court in the case of Gamini Bala Koteswara Rao and others v/s. State of Andra Pradesh through Secretary (2009) 10 SCC 636 and more specifically paragraph No. 14 which reads thus: 14. In the case of Chandrappa and Ors V/s. State of Karnataka (2007)4 SCC 415, the Supreme Court has held in paragraph No.30 thus: 1. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumption under Section 139 of N.I. Act in favour of the complainant and there is no other option available otherwise. 18. In the case of Basalingappa(supra) and on considering the case of Rangappa(supra), the Supreme Court in paragraph 23 has observed thus: 23. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner: i. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. ii. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. iii. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntil the contrary is proved, the following presumptions shall be made:- (a) of consideration -that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date -that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance -that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer -that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements -that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps -that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course -that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the learned Magistrate in paragraph 12 of the impugned judgment that execution of the promissory note is not proved by the complainant although the promissory note is executed before the Notary and that the said Notary is not examined by the complainant, is completely against the settled proposition of law. First of all there is no dispute or denial on the part of the accused that such promissory notes were not even executed by her along with her husband. The only defence is with regard to the cheques in question. Therefore, if it is not a case of the accused that promissory notes are not executed by them, inference drawn by the trial Court for not examining the Notary before whom such promissory notes were executed needs to be considered as unwarranted and without any sufficient material on record. Similarly, the observations of the learned trial Court in paragraph 12 itself show that both promissory notes were forwarded to the expert i.e. CFSL, Hyderabad and the report is received by the Court which is at Exhibit D-87 wherein it has been opined that the person who had signed the cheque have also written on the questioned document i.e. promissory note i.e. Exh C-24. Such r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... installments which can been seen clearly from the passbook of Saraswat Bank, Curchorem-Goa. Even the copy of the passbook of Saraswat Co-operative Bank in the name of the accused and her husband is produced at Exh-31 to show that the payment was made with regard to such a promissory note. 31. However, one thing is clear that reply notice at Exh-26 shows that whatever payment is made as claimed therein, is in connection with another promissory note dated 23rd April 2011. Perusal of the passbook produced at Exh-31 and as pointed above by the learned Counsel for the accused show that there is entry on 17th May 2011 regarding payment by cash to the complainant for ₹30,000/-. Similarly there is an entry dated 26th May 2011 regarding payment of cash to the complainant to the tune of ₹50,000/-. Another entry is dated 14th June 2011 towards payment of cash to the complainant to the tune of ₹30,000/-. There is entry on 18th July 2011 regarding transfer to the complainant to the tune of ₹30,000/- . Then there is entry on 16th August 2011 towards cash payment to the complainant to the tune of ₹30,000/-. On 16th September 2011 there was an entry of transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paying an amount of ₹3,00,000/- which was taken by her by executing the promissory note dated 23rd April 2011, are clearly by misunderstanding the facts and failing to appreciate evidence on record. 35. The promissory note dated 23rd April 2011 referred by the accused in her reply is clearly a different promissory note from Exh-24 and the cheque which is the subject matter of the present proceedings. The learned Magistrate seems to be confused with two promissory notes, one executed on 23rd April 2011 and another executed on 18th April 2012. As earlier observed, the passbook entries produced at Exh-31 clearly show that there were business transactions between the complainant and the accused and accepting such payments made in the years 2011 in connection with promissory note executed in the year 2012 is certainly not permissible and out of context. 36. Thus the promissory note at Exh-24 dated 18th April 2012 executed by the accused for ₹3,000,000/- in favour of the complainant stands proved in evidence and attracts presumption under Section 118 of N.I. Act that it was executed for consideration, by date and time mentioned therein. No evidence has been brought on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort the contention of the complainant and it reads thus: I had given an amount of Rs.3,00,000/- to the accused on 18.04.2012, given in three cheques of Rs.1,00,000/- each. Out of these three cheques one cheque was to be drawn on Central Bank of India, Curchorem branch, another SBI Curchorem and Saraswat Bank Curchorem branch. 41. After few lines, Pw1 then stated as under: The cheques of Saraswat Bank and State Bank were from my account and the cheque from Central Bank was in the account of Peter alias and handed over to Shaikh Hasina. 42. It is necessary to see that during further cross-examination of Pw1, there is no other material with regard to the above aspect except denial. Such statement of the complainant supports the execution of promissory note at Exh-24 by the accused in favour of the complainant. Further issuing cheque of ₹ 3,00,000/- by the accused in favour of the complainant vide Exh-21 again support the contentions brought on record in the evidence of Pw1. Even otherwise Accused in her reply to the legal notice admitted that she took hand loan of ₹ 3,00,000/- from complainant as business transaction. This shows that capacity of complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpected that she had no capacity to give loan of ₹3,00,000/-. Thirdly, the accused executed a promissory note at Exh.24 dated 18th April 2022 which presume the consideration. Similarly, an earlier promissory note produced at Exh-30 dated 23 rd April 2011 again proved that the complainant was having sufficient means to give ₹ 3,00,000/- to the accused as loan, which has been clearly admitted in the reply notice at Exh.26. Thus, the submissions of the learned Counsel Shri J. Ramaiya on this aspect is clearly unacceptable. 45. As far as the cheque of ₹3,00,000/- signed by the accused qua the complaint dated 15th June 2012 produced at Exh-21 is concerned, except creating some confusion, presumption under Section 139 of N.I. Act has not been rebutted. 46. The learned Magistrate accepted that filing of complaint with the police dated 2nd July 2012 by the accused, as sufficient to rebut presumption under Section 139 of N.I. Act. First of all it is clear from the record that said cheque was signed and issued on 15th July 2012. Complainant presented the said cheque for encashment, within its validity time. However, Saraswat Co-Operative Bank Ltd. i.e. the banker of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count of the accused may deposit such cheques for realisation and on being bounced, could lodge false criminal cases under N.I. Act. 49. First of all the date of such complaint lodged with Curchorem Police is 2nd July 2012 i.e. on the date when the cheques were already bounced/dishonoured. The alleged incident of threatening is dated 15th July 2012 and that too in the residence of the accused which is in Curchorem itself. There is no explanation from the accused as to why she failed to lodge the complaint on the same day or at the most on the next day of the alleged incident. Admittedly, no action was taken by the police. Purpose of lodging such a complaint is obvious. It was lodged only on getting knowledge from her own bank that the cheques were presented and dishonoured. Similarly, the accused by mentioning in paragraph 4 of the said complaint dated 2nd July 2012 admits that there is no sufficient balance in her account though she issued cheques in favour of the complainant. Surprisingly, no letter was addressed to the complainant not to present such cheques. No instructions were given to the bank to stop payment of such cheques as such cheques were issued under threat or coe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother aspect which needs to be noted is the promissory note produced by the complainant at Exh-23 which is admittedly executed by the husband of the accused. During evidence it is the case of the complainant that the promissory note at Exh-23 for ₹1,30,000/- was executed by the husband of the accused and in discharge of such loan amount, the accused issued cheque in favour of the complainant dated 15th July 2012 for ₹1,30,000/- produced at Exh-22. 54. However, averments in the main complaint and specifically paragraph 1 show otherwise. Said paragraph 1 shows that the accused took a hand loan and she executed two promissory notes dated 28th April 2012 amount to ₹3,00,000/- and ₹1,30,000/- respectively, registered with the Notary public. Similarly, towards repayment and the said amount of loan accused issued two cheques dated 15th July 2012 for ₹3,00,000/- and ₹1,30,000/-. Thus paragraph 1 of the complaint specifically shows that the accused took loan of ₹4,30,000/- and executed two promissory notes in favour of the complainant and thereafter in discharge of such loan she issued two separate cheques. 55. The affidavit-in-verification a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of ₹1,30,000/- was not given to the accused. 59. The learned Senior Counsel Ms. A. Agni while relying in the case of ICDS Ltd (supra) claimed that the word any debt or other liability has to be construed in favour of the complainant since the cheque was issued by the wife in discharge of loan given to her husband. 60. In ICDS Ltd (supra), the question for consideration was to the effect as to the maintainability of the proceedings under Section 138 of N.I. Act viz-a-viz the guarantor. In that matter the husband of respondent No.1 entered into a hire-purchase agreement with the appellant for the purpose of purchase of car and his wife stood as guarantor in respect of hire-purchase facilities. In that respect, the Supreme Court observed that respondent no.1 being the wife, was guarantor in the hire-purchase agreement for repayment of loan obtained by her husband, issued cheque towards part payment in favour of the appellant, which was not accepted by the High Court thereby dismissing the complaint as not maintainable. In this context the Supreme Court observed that the cheque is issued by the guarantor though the wife of the borrower therefore the wording un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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