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TMI Blog2023 (11) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... to stay the complaint filed by respondent no.2 in the Court of Ld. Judicial Magistrate First Class, Valia, District Bharuch bearing Criminal Case No.691/2021 under section 138 of the Negotiable Instrument Act at Annexure A and further orders as well proceeding thereof. (C) The cost of this petition be granted. (D) Your Lordship be pleased to grant such other and further reliefs that is just, fit and proper in the facts and circumstances of the case." 3. For the purpose of admissibility of this petition, relevant facts are stated thus :- 3.1. Respondent no.2 has filed Criminal Case No.691 of 2023 before the learned JMFC, Valiya under section 138 of N.I.Act alleging that as many as 4 cheques totaling Rs.28 lakhs given by the petitioner have been return unpaid. Amount of cheques are not paid even after statutory notice was served (Annexure A). Complainant has filed private complaint alleging offence under section 138 of N.I.Act against the petitioner. 3.2. Learned JMFC, Valiya has issued process against the present petitioner. Process was challenged by way of Criminal Revision Application No.94 of 2023 before the learned District Court, Bharuch. Detail and comprehensive judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and set aside process issued against the petitioner. 5. On the other hand, learned APP would submit and support order of issuance of process. 6. Having heard learned advocate for the petitioner, at the outset, it is noticed that against the petitioner Criminal Case is filed under section 138 of N.I.Act. The Court after prima facie verifying material on record issued process for the offence punishable under section 138 of N.I.Act. The trial of the offence is at large before the learned Trial Court. It is to be noticed that in offence under section 138 of N.I.Act, provision of law provides for presumption under section 139 of N.I.Act which reads as under :- "139. Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability." 6.1. So it raises presumption in favour of the complainant that he has received cheques of nature referred in section 138 of the N.I.Act for discharge of debt, in whole or in part or any other liability. The complainant being holder of the cheques and in view of the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon." 9. In Kumar Exports v/s. Sharma Carpets [(2009) 2 SCC 513], the Hon'ble Apex Court again examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted. Para 18 to 20 are relevant, which reads as under :- "18. Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 418] summarized the principle as under :- "23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:- (i) 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. (ii) 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. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or 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. (iv) 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. (v) It is not necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were liable to pay. Such approach of the trial Court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law. xx xx xx 17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite "Bir Singh v. Mukesh Kumar", where this court held that: "Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would 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." 12. Looking back to the contention raised by the petitioner, it is the case of the petitioner that there is difference in agreement to sell and complaint regarding number of flats and therefore, it cannot be said that questioned cheques were given for discharge of any liability. This argument was canvassed with a view to submit that transaction is different. Cheques in question is given for transaction for flat Nos.C/402 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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