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TMI Blog2017 (9) TMI 2014X X X X Extracts X X X X X X X X Extracts X X X X ..... However, the cheques were dishonoured when presented on 13.12.2004 and returned with remarks "payment stopped by drawer". The complainant, therefore, issued a legal notice dated 22.12.2004 to the accused. The said notice was replied by the accused on 14.1.2005. Thereafter, the complainant preferred a complaint in the Court of JMFC, Bicholim on 31.1.2005. The learned JMFC, after recording the evidence and after hearing the respective parties, by the impugned judgment and order acquitted the accused and, therefore, the aggrieved complainant has approached this Court. 3. I heard Shri Agni, learned counsel for the complainant and Shri Singbal, learned counsel for the accused. 4. It is the contention of Shri Agni that the learned trial Judge has failed to apply presumption, as provided under Section 139 of N.I. Act as well as misread the averments in the complaint and arrived at an erroneous finding to the effect that the complainant had failed to show that business transaction was completed in respect of which the disputed cheques were issued. He submits that the learned Judge failed to appreciate that once the accused admits the issuance of cheques, burden to prove the defence take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edged by the accused and replied thereto on 14.1.2005. The accused denied of having any transaction of sale of scrap by the complainant. In reply, the accused had stated that there was no occasion of any transaction of scrap material with the complainant and, therefore, there was no question of owing any amount to the complainant. According to the accused, he did issue the cheque in question one month prior to its due date i.e. 10.12.2004. It was issued as an advance to the complainant who undertook that he would bring his machinery for cutting the plant purchased by accused from M/s. Chowgule and Company at Pale Mines. The cheque came to be issued as an advance. Since the complainant failed to bring his machinery for the said work in the stipulated time, he instructed his banker not to make payment of the said cheque. Thus, according to him, there was no legally enforceable debt or liability existed and, therefore, there can be no question of committing any offence punishable under Section 138 of the NIA. 7. It would be interesting to go through the evidence on record, more particularly, cross examination of the complainant - Sheikh Dalal. As already stated herein above, the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d supplied 62 tones and 500 kgs of scarp material to the accused but he failed to produce any proof that 62 tonnes and 500 kgs of scrap material was, in fact, supplied to the accused by him. He admits that he did not have any delivery challan to show that he had supplied the said material to the accused. He further admits that he had not shown the transaction of supply of scrap material worth Rs. 10 lakhs either in the Sale Tax or Income Tax returns in the respective years. All these factors, indeed points towards the fact that the complainant had not approached the Court with clean hands. No person dealing in the business in such a huge quantity and the amount would not keep any documentary evidence either in the form of Income Tax returns or Sales Tax returns or Books of Accounts kept by any prudent man in the regular course of his day to day business. It is apparent that there was no legally enforceable liability or debt against the accused in the absence of any trustworthy evidence of delivery of scrap materiel to the accused and other things as stated herein above. This is significant in the light of the fact that the complainant did admit in his cross-examination that he is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stent defence would not be of any assistance to the complainant to establish his case beyond all reasonable doubts. In criminal trial, accused can raise inconsistent defences. It is apparent from the cross-examination of PW 1 and the evidence of the accused that the disputed cheques were issued by the accused, as an advance, for the purpose of cutting and lifting the old machinery by the complainant as the accused had contracted with M/s. Chowgule and Company for cutting and lifting the same within a stipulated time. The disputed cheque, therefore, cannot be held to have drawn for an existing debt or liability. The explanation appended to Section 138 of N.I. Act explains the meaning of the expression "debt or other liability". Section 138 of the N.I. Act treats dishonoured cheque as an offence if the cheque is issued in discharge of any debt or other liability. It clearly means that in order to attract an offence under Section 138 of the Act, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. The drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the circumstances of the case act upon the plea that it did not exist. The complainant has failed to bring on record any evidence in the form either Books of Accounts as he has been carrying the business of scrap or returns of Sales Tax or Income Tax in order to substantiate his contention that he had, in fact, delivered scrap worth Rs. 10 lakhs to the accused. The learned trial Court has, therefore, rightly observed that it is highly unbelievable that a businessman or a trader would supply the material of Rs. 10 lakhs without recording any entries in his Books of Accounts and if he is doing so, he is suppressing his dealings from the Government Authorities. He even could not furnish the details of transportation or weighing machinery where the goods alleged to have been weighed. Rather, he improved his version subsequently by giving name of weighing bridge without producing any document to that effect. It is difficult to believe that no receipts were issued after the truck loads are weighed at the weighing machine. 12. In the case of M/s. Kumar Exports Vs. M/s. Sharma Carpets in Criminal Appeal No. 2045 of 2008 (arising out of Special Leave Petition (Criminal) No. 955 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue. 12. The defence of the appellant was that he had agreed to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on August 6, 1994 for a sum of Rs. 1,90,348.39. Having regard to the materials on record, this Court is of the opinion that the respondent failed to establish his case under Section 138 of the Act as required by law and, therefore, the impugned judgment of the High Court is liable to be set aside". 13. The ratio therein is squarely applicable to the present set of facts. In the case at hand the accused has rightly rebutted the presumptions on the basis of complaint, reply to the notice as well as from the cross-examination of the complainant. After having rebutted the presumption, which is acceptable in all the circumstances of the case and on preponderance of probabilities, the burden shifted back to the complainant, which he failed to discharge and there is no question of presumption again under Sections 118 and 139 of N.I. Act, coming to the rescue of the complainant. 14. The Hon'ble Supreme Court in Rangappa Vs. Sri Mohan [(2010) 11 SCC 441] in paragraph 26 overruled the ratio of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde [(2008) 4 SCC 54] to a very limited extent. Paragraph 26 in Rangappa's case (supra) observed thus:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... den of proof cast on him under Section 139 of the Act, no exception thereto can be taken. 17. In John K. John V. Tom Varghese (supra), the complainant did not approach the Court with clean hands. His conduct was not that of a prudent man. No instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It such case, it was open for the High Court to draw its own conclusion therein. 18. As already discussed above, the complainant had not executed any instrument or any documents. In paragraph 44 of the said judgment, which is about presumption of innocence as a human right. Paragraph 44, reads thus:- "44. The presumption of innocence is a human right. [See Narender Singh & Anr. v. State of M.P. (2004) 10 SCC 699, Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. (2005) 5 SCC 294 and Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director (2007) 1 SCC 70] Article 6(2) of he European Convention on Human Rights provides : Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Although India is not bound by the aforementioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent into hands of complainant, which is a question of fact and therefore, the learned Single Judge declined to quash the proceedings under Section 482 of the Cr.P.C. On similar point, the learned counsel for the complainant, has placed reliance on the following authorities: i. 2005 (1) ALL MR 261 : Madhukar Raghunath Bhave Vs. M/s. Wyawahare & Sons and Ors. ii. 2010 ALL MR (Cri) 1441 : Nitin s/o. Bapurao Mankar Vs. Shri Vyankatesh Housing Agency and Anr. iii. 2008 ALL MR (Cri) 157 : Shri Anant Dhargalkar VS. Shri Digambar Korgaonkar. 21. In Madhukar Bhave's case (supra), it was held that as per Section 118 of Negotiable Instruments Act, burden of rebuttal proof was on the defendant which he could not discharge. 22. In Nitin Mankar's case (supra), similar is the ratio as regards the presumption under Section 139 of the N.I. Act about which the observations made by the Hon'ble Supreme Court in M/s. Kumar Exports cited supra is a good law. 23. The learned trial Court has thus, considered all the aspects of the case and rightly reached a conclusion that the complainant has failed to prove the case under Section 138 of the N.I. Act and thereby rightly acquitted the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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