TMI Blog2023 (8) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of her personal attendance before the learned trial court concerned, the learned trial court concerned is expected to dispose of the same by dispensing with personal attendance 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 - 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. In want of specific challenge to the summoning order, at this stage, this Court is not inclined to interfere with the same particularly having regard to the observations made - the present application under Section 482 Cr.P.C. is partly allowed. - Hon'ble Ajai Kumar Srivastava-I,J. For the Applicant : Anuuj Taandon,Purnendu Chakravarty For the Opposite Party : G.A. ORDER HON'BLE AJAI KUMAR SRIVASTAVA-I, J. 1. Heard Sri Purnendu Chakravarty, learned counsel for the applicant, Sri Himanshu Suryavanshi, learned Brief Holder for the State and perused the entire record. 2. Vide order dated 14.11.2019, notice wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the money which he alleges to have advanced to the present applicant. He has also submitted that in want of source of money which he states to have advanced, there cannot be a legal presumption of existence of legally enforceable debt against the complainant/ opposite party No.2. He has also submitted that it has been the consistent case of the present applicant that having business association with complainant/ opposite party No.2, the cheque-in-question was issued as a collateral security only. 7. To buttress his aforesaid submission, learned counsel for the applicant has also placed reliance upon the judgments of Hon ble Supreme Court in Rajaram through L.Rs. vs. Maruthachalam (since deceased) through L.Rs. [2023 SCC OnLine SC 48] 8. His next submission is that the impugned order dated 23.10.2019, whereby the non-bailable warrant and process under Section 82 Cr.P.C. have come to be issued, is patently illegal. The same has been issued in a mechanical manner without having regard to the fact that the applicant herein is a woman and a senior citizen. The applicant is contesting the Complaint Case No.1864 of 2012 and was regularly attending the court on date fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing nonbailable warrants. (emphasis supplied) 13. Thus, issuance of non-bailable warrant and process under Section 82 Cr.P.C. simultaneously cannot be appreciated in view of law laid down by the Hon ble Supreme Court in Inder Mohan Goswami s case (supra) and Raghuvansh Dewanchand Bhasin s case (supra) as the same is patently illegal and, therefore, unsustainable. 14. At this juncture, it is apposite to quote Section 205 Cr.P.C., which is extracted herein below:- 205. Magistrate may dispense with personal attendance of accused . (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of this Court in the cases of Bir Singh v. Mukesh Kumar (2019) 4 SCC 197, Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18 SCC 106, Kalamani Tex v. P. Balasubramanian (2021) 5 SCC 283 to buttress his submissions. 26. This Court in the case of Baslingappa v. Mudibasappa (supra) has summarized the principles on Sections 118(a) and 139 of the N.I. Act. It will be relevant to reproduce the same. 25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 25.1. 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. 25.2. The presumption 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. 25.3. 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 rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished that the complainant had not declared that he had lent Rs. 3 lakh to the accused. It further established that the agricultural income also was not declared in the Income Tax Returns. 30. The learned Trial Court further found that from the income which was shown in the Income Tax Return, which was duly exhibited, it was clear that the complainant(s) did not have financial capacity to lend money as alleged. 34. After analyzing all these pieces of evidence, the learned Trial Court found that the Income Tax Returns of the complainant did not disclose that he lent amount to the accused, and that the declared income was not sufficient to give loan of Rs. 3 lakh. Therefore, the case of the complainant that he had given a loan to the accused from his agricultural income was found to be unbelievable by the learned Trial Court. The learned Trial Court found that it was highly doubtful as to whether the complainant had lent an amount of Rs. 3 lakh to the accused. The learned Trial Court also found that the complaint had failed to produce the promissory note alleged to have been executed by the accused on 25th October 1998. After taking into consideration the defence witness ..... X X X X Extracts X X X X X X X X Extracts X X X X
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