TaxTMI 
TaxTMI 
2024 (2) TMI 1011
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....ng the power under Section 357(3) of the Code of Criminal Procedure. 2. The brief facts leading to this Criminal Revision are that the complainant-opposite party Baldeo Prasad Mehta had filed a complaint with these allegations that he had good terms with the accused Rakesh Kumar Sinha, who wanted to sell his land, so he approached to the complainant and complainant became ready to purchase the same and Rs. 20 lakhs was given in advance. Despite having taken the advance amount of Rs. 20 lakhs from the complainant, the accused had sold the same to another person. When the complainant made demand to refund the money, he issued two cheques each of Rs. 10 lakhs dated 06.03.2014 and 08.03.2014 bearing cheque Nos. 610799 and 610800 respectively. The complainant presented both the cheques for encashment in the account of Bank of India, Hazaribag but both the cheques were returned dishonored on 27.03.2014 on account of insufficient funds in the account of the drawer of the cheques. The complainant sent the legal notice to the accused on 07.04.2014. On 30.04.2014, the petitioner-accused asked to the complainant why the legal notice was sent to him, on which, he further promised to return th....
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....he order of sentence dated 26.07.2017 passed by the learned trial Court and the impugned judgment dated 07.03.2021 passed by the learned Appellate Court, the instant Criminal Revision has been directed on behalf of the petitioner-convict on the ground that both the learned Courts below have passed the judgment on the wrong appreciation of the evidence. The learned Courts below have not taken into consideration that from the legal notice itself no liability arises for the alleged cheque. No other kind of document was ever executed for the alleged liability and the learned trial Court relied upon the oral testimony of the complainant. Neither the alleged cheques were issued by the petitioner-convict nor the said cheques were filled by him. The learned Court below raised the presumption under Section 139 of the N.I. Act in a wrong way. The complaint was also filed after lapse of statutory period, as such, the complaint should have been dismissed by the learned Courts below. In view of the above, prayed to allow this Criminal Revision and set aside the impugned judgment of conviction and the order of sentence passed by the learned trial Court, which was affirmed by the learned Appellat....
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....n for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date:-that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance:-that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer:-that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements:-that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp:- that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course:-that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving ....
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....int, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period; (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. 15. As per the allegations made in the complaint petition, two cheques w....
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....f the evidence on record, it is found that two cheques dated 06.03.2014 and 08.03.2014 were presented by the complainant before his banker and the same were dishonored on 27.03.2014, as such, both the cheques were presented by the complainant within a period of six months from the date of issuance of the cheques. Since both the cheques were dishonored on 27.03.2014 and after receiving of the return memo from the concerned bank for both the cheques, the complainant had issued the notice to the accused on 07.04.2014, as such, the same is also within 30 days in view of the proviso (a) of Section 138 of the N.I. Act and this notice was received by the accused on 10.04.2014 as evident from Exhibit-5 and the accused failed to make the payment in compliance of the notice within 15 days from the date of receipt of notice by 24.04.2014 in view of the proviso (c) of Section 138 of the N.I. Act. The cause of action to file the complaint arose to the complainant on 24.04.2014 and the complaint should have been filed within thirty days from the date of arising cause of action to file the complaint, which has arose in view of the proviso (c) of Section 138 of the N.I. Act and in view of sub clau....
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.... determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability." 16.1 The Hon'ble Apex Court in the case of Yogesh Jain Vs. Sumesh Chandra reported in 2022 Live Law (SC) 879 held that once the cheque is issued and upon getting dishonored statutory notice is issued, it is accused to dislodge the legal presumption available under Section 118 and 139 of the N.I. Act. Relevant paragraph reads as under: "Once a cheque is issued and upon getting dishonoured a statutory notice is issued, it is for the accused to dislodge the legal presumption available under Sections 118 and 139 resply of the N.I. Act. Whether the cheque in question had been issued for a time barred debt or not, itself prima facie, is a matter of evidence and could not have been adjudicated in an application filed....
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....eld that 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. 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." 17. In order to rebut both these presumptions on behalf of the convict petitioner, no oral or documentary evidence was adduced. The only defence, which has been taken by the petitioner-convict during trial was that the cheques were issued in good faith because of friendship of him with the complainant. This suggestion was also given that in regard to sale of the land, no document was executed and there was no alleged liability for issuance of cheques. To this effect, on behalf of the petitioner-convict, no evidence has been adduced....