TMI Blog2023 (2) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... pite of the said circumstances the petitioner has still not paid the balance amount of Rs. 4 lakhs (compensation). The petitioner is to pay the balance amount (compensation) within two months from the date this order, failing which the petitioner will undergo the sentence in default of payment of compensation - Application dismissed. - CRR 435 of 2020 - - - Dated:- 8-2-2023 - The Hon ble Justice Shampa Dutt ( Paul ) For the Petitioner : Mr. Samiran Mondal, Mr. Avhinanda Dan. For the Opposite Party : Mr. Sanjoy Bose, Mr. Priyankar Basu Mullick ORDER Shampa Dutt (Paul), J.: The present revisional application has been preferred by the Petitioner/Convict against an order dated 29.08.2019 passed by the Learned Additional District and Sessions Judge, 1st Fast Track Court, Bichar Bhavan, Calcutta, in Criminal Appeal No. 07/2017, affirming partly the order dated 19.11.2016 passed by the Learned Metropolitan Magistrate 12th Court, Calcutta in Complaint Case no. 4042 of 2009. The petitioner s case is that there was a previous acquaintance between the present petitioner and the opposite party herein based on which both the parties entered into a memorandum of u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of conviction against the petitioner herein. That even after the repeated denial by the petitioner against the signatures made in the issued demand notice by the opposite party, the court in lieu of testifying the said signatures on the document, held it to be that of the petitioner without initiating process to verify the same. The Learned Judge, however, adjudicating against the petitioner, in the absence of any documents of the postal authorities, showing service of demand notice upon the petitioner, has caused grave injustice to the petitioner. The Learned Trial Judge erroneously adjudicated the matter solely based on mere fact that plausible explanation by way of rebuttal evidence must be given irrespective of the fact that the evidences produced by the prosecution. As such any production of further evidences by the petitioner was not possible since no such transaction took place as is made out between the parties established at any point to time. The impugned orders are otherwise bad in law and as such the same are liable to be set aside. The learned Trial Judge failed to understand the motive of the complainant to falsely implicate your petitioner so as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. On going through the judgements of the learned Magistrate and the learned Session Judge, it is before this court that there is sufficient evidence to show that the cheque was duly issued and after completion of all formalities the proceedings under section 138 NI act was initiated. The learned Magistrate on considering the evidence before the court and materials on record, convicted the petitioner/accused. The session Judge after considering the materials on record, modified the judgment and order of the Magistrate and set aside the substantive part of imprisonment keeping the order to pay compensation intact. The said findings of the learned Sessions Judge is in accordance with law and has been modified in the interest of justice. Section 139 N.I Act which goes like this:- Section 139 of Negotiable instruments Act lays down:- 139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 138, for the discharge, in whole or in part, of any debt or other liability. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque. 22. In Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16, this Court held that both Section 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in State of Madras vs. Vaidyanatha Iyer AIR 1958 SC 61, this Court held that it was obligatory on the Court to raise this presumption. 23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability. 28. In R. Vijayan vs. Baby and Another (2012) 1 SCC 260 this Court observed that the object of Chapter XVII of the Negotiable Instruments Act is both punitive as also compensatory and restitutive. It provides a single forum and single proceeding for enforcement of criminal liability by reason of dishonour of cheque and for enforcement of the civil liability for realization of the cheque amount, thereby obviating the need for the creditor to move two different fora for relief. This Court expressed its anguish that some Magistrates went by the traditional view, that the criminal proceedings were for imposing punishment and did not exercise d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. vs. Surinder Kumar Ors. (1992) 1 SCC 489, what is binding on all courts is what the Supreme Court says under Article 141 of the Constitution, which is declaration of the law and not what it does under Article 142 to do complete justice. 35. Furthermore, to quote V. Sudhish Pai from his book Constitutional Supremacy - A Revisit :- Judgments and observations in judgments are not to be read as Euclid s theorems or as provisions of statute. Judicial utterances/pronouncements are in the setting of the facts of a particular case. To interpret words and provisions of a statute it may become necessary for judges to embark upon lengthy discussions, but such discussion is meant to explain not define, Judges interpret statutes, their words are not to be interpreted as statutes. Thus, precedents are not to be read as statutes. 36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mptions 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 of an offence or fraud, or has been obta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue and the deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the trial Court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law. xx xx xx 17. Even if we take the arguments raised by theappellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar , where this court held that: Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 18. Considering the fact that there has been anadmitted business relationship between the parties, we are of the opinion that the defence raised by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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