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TMI Blog2023 (9) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... of 19th Metropolitan Magistrate, Calcutta, in connection with Complaint Case No. 440/10 corresponding to T.R. No. 1699/14 under Section 138 of the Negotiable Instruments Act, 1881, thereby observing that the accused person is found not guilty for offence under Section 138 of the Negotiable Instruments Act, 1881 and accordingly the accused person/opposite party was acquitted from the instant case. The appellant states that the appellant is a partnership firm which deals in gold (business) for manufacturing gold ornaments. That the opposite party/accused was a karigar/job contractor of the appellant's shop and he was known to the appellant for a few years and he used to manufacture gold ornaments after taking gold from the appellant. That in course of such business dealings by and between the appellant and the opposite party/accused person for last few years, the appellant acquired confidence towards the opposite party. On the basis of that assurance the appellant placed an order with the opposite party and for that purpose the opposite party took from the appellant gold to the tune of Rs.20 lakhs for manufacturing gold ornaments with the understanding and assurance that the oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to file the appeal in the instant case. Pursuant to the aforesaid order the appellant has preferred this appeal against the impugned judgment and order before the Hon'ble Court. It is submitted that the accused person/opposite party as a counter blast to the appellant's case also lodged a false criminal case against the appellant being G.R. Case No. 1291/10 arising out of Baranagar Police Station Case No. 168 dated 29.04.2010 under Sections 342/506/420/406/34 of the Indian Penal Code. In that case after trial the Learned Judicial Magistrate, 3rd Court, Barrackpore, North 24 Parganas was pleased to acquit the appellant and the other persons from that false case. The opposite party/accused person has also filed a criminal case against the appellant Vide G.R. No. 768/10, which is at present pending before the Learned 13th Metropolitan Magistrate, Calcutta. During investigation of the said case the police personnel has taken all the original bills, vouchers and other documents relating to the transactions and/or agreements made between the appellant and the opposite party and at present those documents are in police custody. Thus it is prayed that in the aforesaid facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document regarding the business transaction as the police seized all the documents. But nothing have come up before court regarding seizure made by the police. The complainant further stated that the transactions were made by challan but he failed to produce such challan also. The very important ingredients in a case U/s 138 of NI Act is that the liability of accused must be proved. The complainant failed to produce any document in regard to the business transaction. In the instant case the complainant was also not aware of the date when the payment was made and how the payment was made and from where the payment was made. It appears that there is a serious lacuna in the evidence of the complainant which strike at the root of a complaint U/s 138 of Negotiable Instruments Act and the same would vitiate the ultimate conclusion to be reached by this court. It is also a fact that the complainant failed to produce any document as to the loan transaction. Thus where there is such a lacuna and where the complainant failed to set aside such lacuna whether by way of evidence or documents in my opinion the complainant failed to succeed so in the instant case. In view of such facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (emphasis supplied) The above view was recently reiterated by a three-Judge Bench of this Court in Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283. 15. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under Section 139. 16. In Anss Rajashekar v. Augustus Jeba Ananth, (2020) 15 SCC 348, a two Judge Bench of this Court, of which one of us (D.Y. Chandrachud J.) was a part, reiterated the decision of the three Judge Bench of this Court in Rangappa v. Sri Mohan, (2010) 11 SCC 441, on the presumption under Section 139 of the NI Act. The court held: 12. Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability. The expression "unless the contrary is proved" indicates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebt 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 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 circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence." 13. It can thus be seen that this Court has held that once the execution of cheque is admitted, Section 139 of the N.I. Act mandates a presumption that the cheque was for the discharge of any debt or other liability. It has however been held that the presumption under Section 139 is a reb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te parties to rebut the said presumption and proceed accordingly in accordance with law. And on consideration of the fresh materials on record including the evidence, decide the case a fresh and pass a Judgment in accordance with law preferably within six months from date of communication of this order. The appeal being CRA 154 of 2017 is accordingly allowed. The judgment and order dated 3rd day of November, 2016, passed by the Learned Court of 19th Metropolitan Magistrate, Calcutta, in connection with Complaint Case No. 440/10 corresponding to T.R. No. 1699/14 under Section 138 of the Negotiable Instruments Act, 1881, thereby observing that the accused person is found not guilty for offence under Section 138 of the Negotiable Instruments Act, 1881, is here by set aside. The Trial Court to proceed with the trial expeditiously in accordance with law on ensuring the presence of the accused persons by due process of law. All connected applications, if any, stands disposed of. Interim order, if any, stands vacated. Copy of this judgment be sent to the learned Trial Court for necessary compliance. Urgent certified website copy of this judgment, if applied for, be supplied expedit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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