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TMI Blog2023 (8) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... aint Case No.1864 of 2012, under Section 138 Negotiable Instruments Act, 1881 (herein after referred to as "Act, 1881", Police Station Gomti Nagar, District Lucknow. 4. The facts of the present case are that a complaint came to be filed against accused/ applicant under Section 138 of the Act, 1881 alleging therein that the present applicant had taken loan of a sum of Rs. 50,00,000/- (rupees fifty lacs) from the opposite party No.2. The opposite party No.2 arranged the money, which he states to have alleged advanced to the applicant by taking money from his relatives. According to the complaint, the present accused/ applicant issued a cheque for Rs. 50,00,000/- (rupees fifty lacs) in discharge of aforesaid debt, which got dishonored due to insufficient fund in the account of the the present applicant. The applicant was issued a legal notice on 14.03.2008. Despite being in receipt of the aforesaid notice, neither any reply was given by the present applicant nor any payment was made within the statutory period. Therefore, the opposite party No.2 being left with no option, filed the instant complaint. The statement of the complainant/ opposite party No.2 was recorded under Section 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der whereby the applicant was summoned to stand trial for the offence under Section 138 of the Act, 1881 has not been challenged by the applicant. However, he has been unable to dispute the fact that the applicant is a woman and a senior citizen. 11. Having heard the learned counsel for the applicant, learned Brief Holder for the State and upon perusal of record, it transpires that the applicant is being tried for the offence under Section 138 of the Act, 1881. On 23.10.2019, due to absence of the applicant in the learned trial court concerned, process under Section 82 Cr.P.C. came to be issued. Admittedly, the present applicant is a woman, who is a senior citizen. 12. The law in respect of issuance of process has been laid down by the Hon'ble Supreme Court in Inder Mohan Goswami's case (supra). Paragraphs No.51, 54 and 55 of Inder Mohan Goswami's case (supra) being relevant are quoted herein below:- "51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. 54. As far as po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndance of the applicant subject to the fact that whenever the learned trial court concerned finds her physical appearance necessary, she may be directed to appear in person. 16. This Court also notices with concern that the complainant has not disclosed any source of fund which he allegedly raised from his relatives for lending the same to the applicant. This Court, on a careful perusal, finds that the applicant has not challenged the order whereby the applicant was summoned to stand trial for the offence under Section 138 of the Act, 1881 . Copy of the same has also not been placed on record. Therefore, at this stage, this Court does not refrain from expressing any opinion on sustainability of entire proceeding. However, it is pertinent to mention that recently the Hon'ble Supreme Court in Rajaram's case (supra) while dealing with criminal appeal in a matter pertaining to Section 138 of the Act, 1881 wherein the accused has taken a plea that the allegation of advancing money to the accused was disputed due to financial condition of the lender, the Hon'ble Supreme Court in paragraphs No.24, 26 to 30 and 34 has held as under:- "24. The learned counsel submitted that there arose n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. It has further been held that 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. It has been held that 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 circumstances upon which they rely. 28. In the said case, i.e. Baslingappa v. Mudibasappa (supra), the learned Trial Court, after considering the evidence and material on record, held that the accused had raised a probable defence regarding the financial capacity of the complainant. The accused was, therefore, acquitted. Aggrieved thereby, the complainant preferred an appeal before the High Court. The High Court reversed the same and convicted the accused. This Court found that unless the High Court came to a finding that the finding of the learned Trial Court regarding financial capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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