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TMI Blog2003 (2) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 330 of 2001 from the order dated 26.11.2002 passed by the leaned Metropolitan Magistrate, 28th Court, Esplanade, in C.C. No. 1173/S/95 convicting the Appellant - accused Yogendra Bhagatram Sachdev under Section 138 of the Negotiable Instruments Act and sentencing him to suffer rigorous Imprisonment for one year and to pay a fine of Rs. 5,000/=, in default to suffer rigorous imprisonment for three months with a further direction to the accused to pay an amount of Rs. 1,00,00,000/= as compensation to the complainant. 2. The appeal was filed and was admitted on 21.12.2001. At the stage when the appeal has become ripe for hearing, the applicant-accused files the said application under Section 391 of the Code of Criminal Procedure, praying that the appellant be allowed to lead cogent evidence which is on record by way of documents, but not by of oral (SIC) and that the said Court, that is to say, the Sessions Court either take his evidence itself of direct it to be taken by the learned Magistrate subject to Chapter XXIII, as if it was an enquiry. The said application, as stated above, has been rejected by judgment and order dated 21.11.2002 passed by the Additional Sessions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tering the witness box, the Applicant declined the offer. 7. The defence of the applicant-accused is that he was obliged to pay Rs. 50,00,000/= to the complainant only on transfer of the shares of the applicant in his name and since that transfer had not taken place, he was not liable to pay the amount stated in the cheques and that, since the shares had not been transferred in his name, he had instructed his banker not to make payment. 8. By judgment and order dated 26.11.2001, the applicant was convicted and sentenced by the trial Court. The same is impugned by the applicant filing Criminal Appeal No. 330 of 2001 which was admitted on 21.12.2001. On 3.9.2002, the Criminal Application No. 376 of 2002 to allow the Applicant to examine himself and leave evidence, came to be rejected by the Sessions Court by the impugned order dated 21.11.2002. It is this order which is the subject-matter of challenge in the present criminal application. 9. Learned Counsel Shri. Desai appearing on behalf of the applicant/accused has pointed out that the learned Additional Sessions Judge has declined to exercise power under Section 391 of the Code of Criminal Procedure, 1973 on two grounds; firstly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence but to regularize the trial of the accused and to ensure that the case is establishment against him beyond reasonable doubt, more so when for the purpose of convicting the accused reliance is sought to be placed upon a presumption arising from the report of a Chemical Examiner, who is not examined before the Court, and which substantially raises a presumption of guilt." 12. It is submitted that the aforesaid observations of the Supreme Court are extremely relevant in the present context since, in this case, reliance is placed on the presumption under Section 139 of the Negotiable Instruments Act. However, since the prosecution is relying on this presumption, the accused is the best person to discharge the burden of proof under Section 139 of the Negotiable Instruments Act to rebut this presumption, since he would have personal knowledge of the transactions with the complainant. It is contended that an opportunity must, therefore, be given to the accused to lead his evidence to ensure that he discharges the burden of proof cast on him specially since reliance is sought to be placed on this presumption for convicting the accused under Section 139 of the Negotiable Instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction. It is submitted that the Supreme Court in Hiten Dalal's case 2001 Cri L J 4647 and in the case of K.N. Bina v. Muniyappan 2001 Cri. L.J. 4741 has made it obligatory upon the accused to lead evidence if he desires to rebut the presumption that arises under Section 139 of the Negotiable Instruments Act since the effect of the presumption is to place the evidential burden on the accused of proving that the cheque was not received towards discharge of any liability. The said presumption cannot be rebutted by merely relying upon documents or proving the said documents. It is pointed out that the Supreme Court in the case of Hiten Dalal's case MANU/SC/0359/2001 : 2001CriLJ4647 while considering the Constitution Bench decision in the case of D.B. Desai's case observed as under: "23. The words .....'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by "proof" and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the bare word of the complainant in cross-examination that the physical custody of the shares, which were the subject-matter of the transaction, were always with the accused. Therefore, the accused should be given an opportunity by stepping into the witness-box to prove that the bare word of the complainant is not true. 19. It is submitted that the balance of convenience is also in favour of the accused since no prejudice would be caused to the complainant if the accused is allowed to examine himself and present the aforesaid facts and he would be open to cross-examination by the complainant. On the other hand, irreparable harm will be caused to the accused if he is deprived of this opportunity as he would be sent to jail on a mere technicality. 20. After having given anxious consideration to the submissions of the learned advocate for the Applicant/Accused, I am afraid no case has been made out for interfering with the impugned order of the learned Additional Sessions Judge by granting the relief prayed for. Dealing with the contention that the Hiten Dalal's case and Bina's case (supra) set out a different, if not new, proposition in law which was not in existence pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he object of doing justice between the parties in the facts and circumstances of the case. However, if the purpose of the prosecution or the accused to adduce evidence at the appeal stage is for the purpose of filling in lacunae, then such an application must be rejected. 23. In the present case it is seen that the applicant-accused had not disclosed any defence prior to the trial. The applicant-accused, for reason best known to him, has not sent any reply to the statutory notice of demand under Section 138 of the Negotiable Instruments Act. The failure to reply to this 138 notice not being explained would raise a presumption that the Accused had, in fact, no defence whatsoever. After the prosecution was launched and the evidence on behalf of the complainant concluded and the Section 313 statement of the Accused recorded, the Applicant-accused was offered the opportunity to lead evidence by examining himself or examination of witnesses in his defence. However, he declined to do so. No doubt, he had filed an application dated 19.5.2001 for issue of witness summons, but that application was not pressed and notice was given by the Accused to the complainant under Section 294 Code of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application for witness summons which the accused claims to have filed in the trial Court is to before this Court today. It is not clear whether the case of the applicant-accused is that these witnesses whom he proposed to examine would prove that all shares were not in his custody but in custody of financial institutions. If that was, in fact, his defence, then the applicant-accused will be deemed to have given up this defence by waiving his right to lead evidence and restricting his defence to only the four documents which admittedly cover only some and not all the shares. It is the case of the Applicant/Accused that since there was no consideration, the accused was entitled to stop the payment of the cheques. If this was, in fact, the defence of the accused, he would have replied to the notice field under Section 138 of the Negotiable Instruments Act; he would have insisted on summoning the witnesses whom he proposed to examine by issuing witness summons and he would not have declined the offer of examining himself and lead evidence after his statement under Section 313 of the Code of Criminal Procedure was recorded. 25. It is clear that the accused at the stage of appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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