Patna High Court - Orders
Deepak Kumar vs State Of Bihar And Anr on 26 November, 2019
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (U/S) No.7 of 2018
Arising Out of PS. Case No.-953 Year-2014 Thana- PATNA COMPLAINT CASE District-
Patna
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Deepak Kumar S/o Late Ramjee Prasad, R/o Nasriganj, P.S.- Danapur, Distt.-
Patna.
... ... Appellant/s
Versus
1. State Of Bihar
2. Sudhansu Kumar S/o Sri B.N. Singh @ Baijnath Singh, M.D. Vaishali
Enterprises, R/o Mohalla- Rupaspur O..S. Colony, Ward No. 39, P.S.-
Rupaspur, district- Patna.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Amardeep Lokpriya,
Mr.Dhananjay Kumar Tiwary, Advocates.
For the State : Mr.Sri Shyed Ashfaque Ahmad, APP
For the Respondent : Mr. Vidhyachal Singh, Adv.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
17 26-11-2019Instant appeal has been filed on behalf of appellant/complainant in accordance with Section 378(4) of the CrPC against the judgment of acquittal dated 08.02.2018 whereby and whereunder Respondent No. 2/accused has been acquitted by the learned ACJM, 1st, Danapur in complaint case No. 855 (c)/2014.
2. It is worth mention to note that vide order dated 22.11.2018 passed in SLA No. 15/2018, appellant had already succeeded in procuring the leave with regard thereto.
3. Succinctly, the case of the appellant/complainant as framed in complaint petition filed on 21.07.2014 is to the Patna High Court CR.APP(U/S) No.7 of 2018(17) 2/53 effect that complainant as well as accused happens to be a bosom friend and on account thereof, have got trust as well as faith upon each other. In the aforesaid background, the accused asked for a friendly loan in the month of March 2014 appertaining to Rs. 25 Lacs and further, assured that the aforesaid amount will be returned back within one month putting reliance upon his assurance, he paid the amount. In the month of 2014, the accused repaid Rs. 1, 24,000/- out of Rs. 25 Lacs, whereupon remaining amount of Rs. 23, 76,000/- stood due and for that, undertook that the aforesaid amount would be repaid in shortest span of time but did not keep his words, whereupon, the complainant exerted pressure for repayment.
Lastly, on 18.06.2014, accused called him at his residence and handed over cheque bearing no. 204735 of Canara Bank which the complainant deposited in his account standing in Axis Bank and as reported, the cheque could not be honoured on account of insufficient fund. Thereafter, the complainant served a registered Advocate notice on 08.07.2014 but, even after receipt thereof, accused failed to make payment of the due amount. Thereafter, the complainant had approached the police wherefrom registration of case was declined as a result of which a Complaint Case has been filed.
Patna High Court CR.APP(U/S) No.7 of 2018(17) 3/53
4. As is evident, after filing of the aforesaid complaint, an inquiry as provided under Section 202 of the CrPC was taken up and after consideration the material having adduced, and being satisfied therewith, the learned lower court found prima facie case, as such, vide order dated 24.06.2015, cognizance of offence punishable under Section 138 of the NI Act was taken, consequent thereupon, the accused/respondent no. 2 was summoned, after appearance of the same, the trial commenced, proceeded and concluded in a manner subject matter of instant appeal.
5. It is further evident from the record of the appellate court that before issuance of summon, Respondent No. 2 put his appearance whereupon, the matter has been heard at length on its merit at the stage of admission itself at the request of the parties, and is finally adjudicated upon.
6. There happens to be categorical argument at the end of the learned counsel for the appellant that concept of law, whereupon, the learned lower court had acquitted the Respondent no. 2, is not at all correct proposition of law as well as happens to be in utter violation of the principle laid down by the Hon'ble Apex Court and so, the same happens to be illegal, erroneous, illegal, perfunctory, whereupon, is fit to be set aside. Patna High Court CR.APP(U/S) No.7 of 2018(17) 4/53
7. It has also been submitted that learned lower court failed to appreciate that there happens to be no cogent, reasonable explanation at the end of Respondent No. 2/accused that cheque no. 204735 was not issued in his favour by the concerned bank, and in likewise manner, his signature over the same. In the aforesaid background, presumption would be against the Respondent no.2/accused in accordance of Section 189 CrPC, though rebuttable. From the record, it is evident that Respondent No.2/accused failed to discharge the onus in order to rebut the precipice. That being so, the learned lower court instead of diverting to irrelevant consideration, should have convicted the Respondent No.2/accused on that very score alone. Hence, the judgment impugned did not justify its alpine, hence is fit to be set aside.
8. On the other hand, learned counsel for the Respondent No. 2 has submitted that the finding so recorded by the learned lower court is in accordance with law and so, should not be interfered with. Further, elaborating the submission, it has been submitted that once there happens to be judgment of acquittal, then in that circumstance, unless and until, there happens to be perversity in ordinary course of nature, the judgment of acquittal should not be interfered with because of Patna High Court CR.APP(U/S) No.7 of 2018(17) 5/53 the fact that by having such finding, the basic principle of criminal jurisprudence that accused is considered to be innocent unless convicted, is found further strengthened. It has also been submitted that even if the facts of the case probabilizes the contrary conclusion to whatever has been recorded by the learned lower court, the finding so recorded in favour of accused is to be honoured, accepted. That being so, in ordinary course of nature, the finding should not be interfered with.
9. Now coming to the facts of the case, it has been submitted that in accordance with Section 139 of the NI Act, legal fiction having been against the accused, is rebuttable one and, from the cross-examination as well as from the cheque itself, it is evident that save and except signature of the accused, other formalities are in different pen hand-writing and that is suggestive of some other kind of activities than whatsoever been alleged and so, the presence of aforesaid pretentious, abstract would defease the version, that being so, the learned lower court rightly observed that the presumption in terms of Section 139 of the NI Act is duly rebutted.
10. It has also been submitted that the Act is enforceable only when there happens to be legally enforceable loan. That means to say, unless and until there happens to be Patna High Court CR.APP(U/S) No.7 of 2018(17) 6/53 loan, it could not be a prosecution under Section 138 of the NI Act irrespective of cheque having been issued by the accused.
So far facts of the case is concerned, it is evident that there happens to be no evidence on the record whereupon, one could infer that the complainant/appellant was in possession of such a huge amount, there happens to be no document, suggesting money having been borrowed by the respondent/accused, there happens to be no evidence relating to part payment i.e., Rs.
1,24,000/-, then in that event, even presence of cheque would not justify the prosecution and that happens to be the reason behind presence of inconsistency in the evidence of complainant, PW-3 on every material aspect.
11. It has further been urged that there is no presumption relating to issuance of notice and on account thereof, the complainant is under obligation to satisfy that the notice having been issued against the accused was duly served upon. So far instant case is concerned, as is evident from the record, the complainant/appellant failed to substantiate by cogent, reliable evidence with regard to service of notice upon Respondent No.2/accused. Consequent thereupon, the finding so recorded by the learned lower court does not warrant interference.
Patna High Court CR.APP(U/S) No.7 of 2018(17) 7/53
12. Also submitted that statement recorded under Section 313 CrPC has not been properly framed. Be that as it may, answered so furnished by the Respondent No. 2/accused, if properly scrutinized, is found duly explainable. Also relied upon the cases of Reena Hazarika v. State of Assam reported in 2018 (4) PLJR 368 (SC), John K. John v. Tom Varghese reported in (2007)12 SCC 714, Krishna Janardan Bhat v. Dattatraya G. Hegde reported in (2008) 4 SCC 54.
13. The first question to be answered is power of the appellate court dealing with the judgment of acquittal as well as, the principle guiding the issue.
14. In Sampat Babso Kale v. State of Maharashtra reported in 2019 CrLJ 2428, it has been held as follows:-
"7. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every Accused person gets strengthened when such an Accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa and Ors. v. State of Karnataka : (2007) 4 SCC 415, laid down the following principles:
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to Patna High Court CR.APP(U/S) No.7 of 2018(17) 8/53 review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
15. In Vijay Mohan Singh v. State of Karnataka reported in 2019 CrLJ 3246, it has been held as follows:-
"11. An identical question came to be considered before this Court in the case of Umedbhai Jadavbhai (supra). In the case before Patna High Court CR.APP(U/S) No.7 of 2018(17) 9/53 this Court, the High Court interfered with the order of acquittal passed by the learned trial Court on re-appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial Court while acquitting the Accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under:
"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to re-appreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This Rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.
11.1 In the case of Sambasivan (supra), the High Court reversed the order of acquittal passed by the learned trial Court and held the Accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the Accused on reversal of the acquittal passed by the learned trial Court, after satisfy that the order of acquittal passed by the learned trial Court was perverse and suffer from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in paragraph 8 as under:
8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We Patna High Court CR.APP(U/S) No.7 of 2018(17) 10/53 find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case : (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.
11.2 In the case of K. Ramakrishnan Unnjithan (supra), after observing that though there is some substance in the grievance of the learned Counsel appearing on behalf of the Accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court Patna High Court CR.APP(U/S) No.7 of 2018(17) 11/53 refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the Accused, the High Court, therefore, was fully entitled to re-appreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eye-witnesses and opined that reasons adduced by the trial Court for discarding the testimony of the eye-witnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court as manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
11.3 In the case of Atley (supra), in paragraph 5, this Court observed and held as under:
"5. It has been argued by the learned Counsel for the Appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In Our opinion, it is not correct to say that unless the appellate court in an appeal Under Section 417, Code of Criminal Procedure came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established Rule that the presumption of innocence of the Accused is not weakened but strengthened by Patna High Court CR.APP(U/S) No.7 of 2018(17) 12/53 the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the Accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. The State : 1952 Cri LJ 331; Wilayat Khan v. State of Uttar Pradesh : AIR 1953 SC 122. In our opinion, there is no substance in the contention raised on behalf of the Appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.
11.4 In the case of K. Gopal Reddy (supra), this Court has observed that where the trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.
12. Considering the aforesaid decisions, it emerges that even in the case where the High Court in an appeal against the order of acquittal interfered with the order of acquittal without specifically considering the reasons arrived at by the learned trial court and without specifically observing that the reasons are perverse, this Patna High Court CR.APP(U/S) No.7 of 2018(17) 13/53 Court can still maintain the order of conviction passed by the High Court, if this Court is satisfied itself that the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it are demonstrably unsustainable and the judgment of the appellate court is free from those infirmities. It also emerges that the High Court is entitled to re-appreciate the entire evidence independently and come to its own conclusion, however, the High Court would not be justified in interfering with the order of acquittal solely on the ground on re-appreciation of the entire evidence that two views are possible."
16. It has been settled at rest that mere dishonour of cheque could not raise a cause of action unless the payee makes a demand in writing to the drawer for payment and the drawer fails as observed by the Apex Court in Rajneesh Aggarwal v.
Amit J. Bhalla reported in 2001 (1) PLJR 177 SC.
17. In likewise manner, it has also been conclusively held that service of notice of demand is a condition precedent for filing a complaint as observed by the Apex Court in Central Bank of India & Anr v. M/s Saxons Farms & Ors reported in 2000 (1) PLJR 17 (SC). So far legal requirement attracting Section 138 and further the obligation of the accused, more particularly, during course of discharging its obligation in terms of Section 139 of the Act coupled with sanctity of the cheque (Negotiable Instrument) having so issued, in the background of Patna High Court CR.APP(U/S) No.7 of 2018(17) 14/53 conflicting judgment, Krishna Janardan Bhat v. Dattatraya G. Hegde: (2008) 4 SCC 54 relied upon by learned counsel for the respondent no. 2., the matter has come up before three judges Bench in connection with Rangappa v. Mohan reported in 2010 CrLJ 2871 wherein it has been observed as follows:
"8. In the course of the proceedings before this Court, the contentions related to the proper interpretation of Sections 118(a), 138 and 139 of the Act. Before addressing them, it would be useful to quote the language of the relevant provisions:
118. Presumptions as to negotiable instruments. - Until the contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
...
138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with Patna High Court CR.APP(U/S) No.7 of 2018(17) 15/53 both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation. - For the purposes of this section, `debt or other liability' means a legally enforceable debt or other liability.
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.
9. Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act. With respect to the facts of the present case, it must be clarified that contrary to the trial court's finding, Section 138 of the Act can indeed be attracted when a cheque is dishonoured on account of `stop payment' instructions sent by the accused to his bank in respect of a post-dated cheque, irrespective of insufficiency of funds in the account. This position was clarified by this Court in Goa Plast (Pvt.) Ltd. v. Chico Ursula D'Souza : (2003) 3 SCC 232, wherein it was Patna High Court CR.APP(U/S) No.7 of 2018(17) 16/53 held:
"Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation which serves the object of the statute. A post-dated cheque will lose its credibility and acceptability if its payment can be stopped routinely. The purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque.In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong....
10. It has been contended on behalf of the appellant-accused that the presumption mandated by Section 139 of the Act does not extend to the existence of a legally enforceable debt or liability and that the same stood rebutted in this case, keeping in mind the discrepancies in the complainant's version. It was reasoned that it is open to the accused to rely on the materials Patna High Court CR.APP(U/S) No.7 of 2018(17) 17/53 produced by the complainant for disproving the existence of a legally enforceable debt or liability. It has been contended that since the complainant did not conclusively show whether a debt was owed to him in respect of a hand loan or in relation to expenditure incurred during the construction of the accused's house, the existence of a legally enforceable debt or liability had not been shown, thereby creating a probable defence for the accused. Counsel appearing for the appellant-accused has relied on a decision given by a division bench of this Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde : (2008) 4 SCC 54, the operative observations from which are reproduced below (S.B. Sinha, J. at Paras. 29-32, 34 and 45):
29. Section 138 of the Act has three ingredients viz.:
(i) that there is a legally enforceable debt
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
31. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless Patna High Court CR.APP(U/S) No.7 of 2018(17) 18/53 he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different. ...
34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is `preponderance of probabilities'. 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 he relies.
(emphasis supplied) Specifically in relation to the nature of the presumption contemplated by Section 139 of the Act, it was observed;
"45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have been rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as a human right and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought Patna High Court CR.APP(U/S) No.7 of 2018(17) 19/53 on record and having regard to legal principles governing the same.
(emphasis supplied)
11. With respect to the decision cited above, counsel appearing for the respondent-claimant has submitted that the observations to the effect that the `existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act' and that `it merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability' [See Para. 30 in Krishna Janardhan Bhat (supra)] are in conflict with the statutory provisions as well as an established line of precedents of this Court. It will thus be necessary to examine some of the extracts cited by the respondent-claimant. For instance, in Hiten P. Dalal v. Bratindranath Banerjee : (2001) 6 SCC 16, it was held (Ruma Pal, J. at Paras. 22-
23):
"22. Because both Sections 138 and 139 require that the Court `shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn,..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the non- existence of the presumed fact.
23. In other words, provided the facts Patna High Court CR.APP(U/S) No.7 of 2018(17) 20/53 required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
(emphasis supplied)
12. The respondent-claimant has also referred to the decision reported as Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and Ors. : 2008 (8) SCALE 680, wherein it was observed:
"Under Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non- existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal....
This decision then proceeded to cite an extract from the earlier decision in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal : (1993) 3 SCC 35(Para. 12):
"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the Patna High Court CR.APP(U/S) No.7 of 2018(17) 21/53 promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbably or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist.
(emphasis supplied) Patna High Court CR.APP(U/S) No.7 of 2018(17) 22/53 Interestingly, the very same extract has also been approvingly cited in Krishna Janardhan Bhat (supra).
13. With regard to the facts in the present case, we can also refer to the following observations in M.M.T.C. Ltd. and Anr. v. Medchl Chemicals & Pharma (P) Ltd. : (2002) 1 SCC 234 (Para. 19):
" ...The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the `stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused....
(emphasis supplied)
14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no Patna High Court CR.APP(U/S) No.7 of 2018(17) 23/53 doubt that there is an initial presumption which favours the complainant.
Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof.
In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
18. From the perusal of the same, it is crystal clear that the principle so enunciated in Krishna Janardan Bhat v. Patna High Court CR.APP(U/S) No.7 of 2018(17) 24/53 Dattatraya G. Hegde: (2008) 4 SCC 54 has not been approved.
The same view has again been re-affirmed by the Hon'ble Apex Court in Laxmi Dyechem v. State of Gujarat & Ors reported in (2012)13 SCC 375, in Kishan Rao v. Shankargouda reported in 2018 CrLJ 3613, in Rohitbhai Jivanlal Patel v. State of Gujarat reported in 2019 CrLJ 2400, as well as in Bir Singh v.
Mukesh Kumar reported in (2019) 4 SCC 197.
19. The matter has further been considered by the three judges Bench in MSR Leathers vs. S. Palaniappan and Ors. reported in (2013) 1 SCC 177 wherein the matter in hand was relating to launching of prosecution after having the cheque dishonoured at second occasion also, however, during course of consideration of the same, also dealt with the relevant provisions of the NI Act in detail and for better appreciation, the same is quoted below:-
"11. Section 138 of the Negotiable Instruments Act, 1881, constituting Chapter XVII of the Act which was introduced by Act 66 of 1988, inter alia, provides:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or Patna High Court CR.APP(U/S) No.7 of 2018(17) 25/53 that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to two year, or with fine which may extend to twice the amount of the cheque, or with both
12. The proviso to Section 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.
13. Section 142 of the Negotiable Instruments Act governs taking of cognizance of the offence and starts with a non-obstante clause. It provides that no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, by the holder in due course and such complaint is made within one Patna High Court CR.APP(U/S) No.7 of 2018(17) 26/53 month of the date on which the cause of action arises under clause (c) of the proviso to Section
138. In terms of Sub-section (c) to Section 142, no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class is competent to try any offence punishable under Section 138.
14. A careful reading of the above provisions makes it manifest that a complaint under Section 138 can be filed only after cause of action to do so has accrued in terms of clause (c) of proviso to Section 138 which, as noticed earlier, happens no sooner than when the drawer of the cheque fails to make the payment of the cheque amount to the payee or the holder of the cheque within 15 days of the receipt of the notice required to be sent in terms of clause (b) of proviso to Section 138 of the Act.
15. What is important is that neither Section 138 nor Section 142 or any other provision contained in the Act forbids the holder or payee of the cheque from presenting the cheque for encashment on any number of occasions within a period of six months of its issue or within the period of its validity, whichever is earlier. That such presentation will be perfectly legal and justified was not disputed before us even at the Bar by Learned Counsel appearing for the parties and rightly so in light of the judicial pronouncements on that question which are all unanimous. Even Sadanandan Bhadran's case (supra) the correctness whereof we are examining, recognized that the holder or the payee of the cheque has the right to present the same any number of times for encashment during the period of six months or during the period of its validity, whichever is earlier.
16. Presentation of the cheque and dishonour thereof within the period of its validity or a period of six months is just one of the three requirements that constitutes 'cause of action' within the meaning of Sections 138 and 142(b) of the Act, an expression that is more commonly used in civil law than in penal statutes. For a Patna High Court CR.APP(U/S) No.7 of 2018(17) 27/53 dishonour to culminate into the commission of an offence of which a court may take cognizance, there are two other requirements, namely, (a) service of a notice upon the drawer of the cheque to make payment of the amount covered by the cheque and (b) failure of the drawer to make any such payment within the stipulated period of 15 days of the receipt of such a notice. It is only when the said two conditions are superadded to the dishonour of the cheque that the holder/payee of the cheque acquires the right to institute proceedings for prosecution under Section 138 of the Act, which right remains legally enforceable for a period of 30 days counted from the date on which the cause of action accrued to him. There is, however, nothing in the proviso to Section 138 or Section 142 for that matter, to oblige the holder/payee of a dishonoured cheque to necessarily file a complaint even when he has acquired an indefeasible right to do so. The fact that an offence is complete need not necessarily lead to launch of prosecution especially when the offence is not a cognizable one. It follows that the complainant may, even when he has the immediate right to institute criminal proceedings against the drawer of the cheque, either at the request of the holder/payee of the cheque or on his own volition, refrain from instituting the proceedings based on the cause of action that has accrued to him. Such a decision to defer prosecution may be impelled by several considerations but more importantly it may be induced by an assurance which the drawer extends to the holder of the cheque that given some time the payment covered by the cheques would be arranged, in the process rendering a time consuming and generally expensive legal recourse unnecessary. It may also be induced by a belief that a fresh presentation of the cheque may result in encashment for a variety of reasons including the vicissitudes of trade and business dealings where financial accommodation given by the parties to each other is not an unknown phenomenon. Suffice it to say that there is Patna High Court CR.APP(U/S) No.7 of 2018(17) 28/53 nothing in the provisions of the Act that forbids the holder/payee of the cheque to demand by service of a fresh notice under clause (b) of proviso to Section 138 of the Act, the amount covered by the cheque, should there be a second or a successive dishonour of the cheque on its presentation.
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29. It is trite that the object underlying Section 138 of the Act is to promote and inculcate faith in the efficacy of banking system and its operations, giving credibility to Negotiable Instruments in business transactions and to create an atmosphere of faith and reliance by discouraging people from dishonouring their commitments which are implicit when they pay their dues through cheques. The provision was intended to punish those unscrupulous persons who issued cheques for discharging their liabilities without really intending to honour the promise that goes with the drawing up of such a negotiable instrument. It was intended to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case the cheque was dishonoured and to safeguard and prevent harassment of honest drawers. (See Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. : (2006) 3 SCC 658, C.C. Alavi Haji v. Palapetty Muhammed & Anr. :
(2007) 6 SCC 555 and Damodar S. Prabhu v.
Patna High Court CR.APP(U/S) No.7 of 2018(17) 29/53 Sayed Babulal H. : (2010) 5 SCC 663). Having said that, we must add that one of the salutary principles of interpretation of statutes is to adopt an interpretation which promotes and advances the object sought to be achieved by the legislation, in preference to an interpretation which defeats such object. this Court has in a long line of decisions recognized purposive interpretation as a sound principle for the Courts to adopt while interpreting statutory provisions. We may only refer to the decisions of this Court in New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar : AIR 1963 SC 1207), where this Court observed:
"8. ... It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the Court would be justified in assuming that the Legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its power invalid."
30. Reference may also be made to the decision of this Court in Deputy Custodian, Evacuee Property v. Official Receiver : AIR 1965 SC 951), where this Court observed:
"8...The rules of grammar may suggest that when the section says that the property is evacuee property, it prima facie indicates that the property should bear that character at the time when the opinion is formed. But Mr. Ganapathy Iyer for the appellants has strenuously contended that the construction of s. 7(1) should not be based solely or primarily on the mechanical application of the rules of grammar. He urges that the construction for which Mr. Pathak contents and which, in substance, has been accepted by the High Court, would lead to very anomalous results; and his arguments is that it is open to the Court to take into account the obvious aim and Patna High Court CR.APP(U/S) No.7 of 2018(17) 30/53 object of the statutory provision when attempting the task of construing its words. If it appears that the obvious aim and object of the statutory provisions would be frustrated by accepting the literal construction suggested by the respondent, then it may be open to the Court to enquire whether an alternative construction which would serve the purpose of achieving the aim and object of the Act, is reasonably possible".
31. The decision of this Court in Nathi Devi v. Radha Devi : (2005) 2 SCC 271, reiterates the rule of purposive construction in the following words:
"Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted".
32. To the same effect is the decision of this Court in S.P. Jain v. Krishan Mohan Gupta :
(1987) 1 SCC 191, where this Court observed:
"We are of the opinion that law should take a pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabilities of technology and life-style of the community. It is well settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act. We agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltd's case (supra) that legislative futility is to be ruled out so long as interpretative possibility permits".
20. In Basalingappa v. Mudibasappa reported in 2019 (3) PLJR 86 (SC), it has been held as follows:-
"8. We having noticed the facts of the case and the evidence on the record, we need to note the legal principles regarding nature of presumptions to be drawn Under Section 139 of Patna High Court CR.APP(U/S) No.7 of 2018(17) 31/53 the Act and the manner in which it can be rebutted by an Accused. We need to look into the relevant judgments of this Court, where these aspects have been considered and elaborated. Chapter XIII of the Act, 1881 contains a heading "Special Rules of Evidence". Section 118 provides for presumptions as to negotiable instruments. Section 118 is as follows:
118. Presumptions as to negotiable instruments. --Until the contrary is proved, the following presumptions shall be made:
(a) of consideration --that every negotiable instrument was made or drawn 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;
XXXXXXXXXXXXXXXXXXXXXXX
9. Next provision, which needs to be noticed is Section 139, which provides for presumption in favour of holder. Section 139 lays down:
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."
10. The complainant being holder of cheque and the signature on the cheque having not been denied by the Accused, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption Under Section 139 is a rebuttable presumption. Before we refer to judgments of this Court considering Sections 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an Accused especially in a case where some statutory presumption regarding guilt of the Accused has to be drawn. A Three-Judge Bench of this Court in Kali Ram v. State of Himachal Patna High Court CR.APP(U/S) No.7 of 2018(17) 32/53 Pradesh, : (1973) 2 SCC 808 laid down following:
23. ...One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an Accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the Accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the Accused. There are certain cases in which statutory presumptions arise regarding the guilt of the Accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the Accused to rebut the presumption. The onus even in such cases upon the Accused is not as heavy as is normally upon the prosecution to prove the guilt of the Accused.
If some material is brought on the record consistent with the innocence of the Accused which may reasonably be true, even though it is not positively proved to be true, the Accused would be entitled to acquittal.
11. This Court in Bharat Barrel & Drum Manufacturing Co. v. Amin Chand Pyarelal, :
(1999) 3 SCC 35 had occasion to consider Section 118(a) of the Act. This Court held that once execution of the promissory note is admitted, the presumption Under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable and Defendant can prove the non-existence of a consideration by raising a probable defence. In paragraph No. 12 following has been laid down:
12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the Patna High Court CR.APP(U/S) No.7 of 2018(17) 33/53 promissory note is admitted, the presumption Under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The Defendant can prove the non- existence of a consideration by raising a probable defence. If the Defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the Plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the Defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the Plaintiff is entitled under law to rely upon all the evidence led in the case including that of the Plaintiff as well. In case, where the Defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the Plaintiff would invariably be held entitled to the benefit of presumption arising Under Section 118(a) in his favour. The court may not insist upon the Defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the Plaintiff. To disprove the presumption, the Defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist......
12. Justice S.B. Sinha in M.S. Narayana Menon Alias Mani v. State of Kerala and Anr. 6 :
Patna High Court CR.APP(U/S) No.7 of 2018(17) 34/53 (2006) 6 SCC 39 had considered Sections 118(a), 138 and 139 of the Act, 1881. It was held that presumptions both Under Sections 118(a) and 139 are rebuttable in nature. Explaining the expressions "may presume" and "shall presume"
referring to an earlier judgment, following was held in paragraph No. 28:
28. What would be the effect of the expressions "may presume", 'shall presume" and "conclusive proof" has been considered by this Court in Union of India v. Pramod Gupta, : (2005) 12 SCC 1, in the following terms: (SCC pp. 30-31, para 52) It is true that the legislature used two different phraseologies 'shall be presumed' and 'may be presumed' in Section 42 of the Punjab Land Revenue Act and furthermore although provided for the mode and manner of rebuttal of such presumption as regards the right to mines and minerals said to be vested in the Government vis-a-vis the absence thereof in relation to the lands presumed to be retained by the landowners but the same would not mean that the words 'shall presume' would be conclusive. The meaning of the expressions 'may presume' and 'shall presume' have been explained in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that the court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression 'shall presume' cannot be held to be synonymous with 'conclusive proof'.
13. It was noted that the expression "shall presume" cannot be held to be synonymous with conclusive proof. Referring to definition of words "proved" and "disproved" Under Section 3 of the Evidence Act, following was laid down in paragraph No. 30:
30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter Patna High Court CR.APP(U/S) No.7 of 2018(17) 35/53 before it, it either believes that the consideration 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.
14. This Court held that what is needed is to raise a probable defence, for which it is not necessary for the Accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon. Dealing with standard of proof, following was observed in paragraph No. 32:
32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
15. In Krishna Janardhan Bhat v. Dattatraya G. Hegde, : (2008) 4 SCC 54, this Court held that an Accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. Following was laid down in Paragraph No. 32:
32. An Accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An Accused has a constitutional right to maintain silence. Standard of proof on the part of an Accused and that of the prosecution in a criminal case is different.
16. This Court again reiterated that whereas prosecution must prove the guilt of an Accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an Patna High Court CR.APP(U/S) No.7 of 2018(17) 36/53 Accused is "preponderance of probabilities". In paragraph No. 34, following was laid down:
34. Furthermore, whereas prosecution must prove the guilt of an Accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an Accused is "preponderance of probabilities". 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 he relies.
17. In Kumar Exports v. Sharma Carpets, :
(2009) 2 SCC 513, this Court again examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted. In paragraph Nos. 18 to 20, following has been laid down:
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, say a note, was executed by the Accused, the Rules of presumptions Under Sections 118 and 139 of the Act help him shift the burden on the Accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the Accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved"
in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once Patna High Court CR.APP(U/S) No.7 of 2018(17) 37/53 clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
20. ........................The Accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the Accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the Accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist....
18. A Three-Judge Bench of this Court in Rangappa v. Sri Mohan, : (2010) 11 SCC 441 had occasion to elaborately consider provisions of Sections 138 and 139. In the above case, trial court had acquitted the Accused in a case relating to dishonour of cheque Under Section 138. The High Court had reversed the judgment of the trial court convicting the Accused. In the above case, the Accused had admitted signatures on the cheque. This Court held that where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque Patna High Court CR.APP(U/S) No.7 of 2018(17) 38/53 pertained to a legally enforceable debt or liability, however, this presumption is of a rebuttal nature and the onus is then on the Accused to raise a probable defence. In Paragraph No. 13, following has been laid down:
13. The High Court in its order noted that in the course of the trial proceedings, the Accused had admitted that the signature on the impugned cheque (No. 0886322 dated 8-2-2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the Accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the Accused was not probable.
19. After referring to various other judgments of this Court, this Court in that case held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability, which, of course, is in the nature of a rebuttable presumption. In paragraph No. 26, following was laid down:
26. In light of these extracts, we are in agreement with the Respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat, : (2008) 4 SCC 54 may not be correct.
However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the Accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
20. Elaborating further, this Court held that Section 139 of the Act is an example of a reverse Patna High Court CR.APP(U/S) No.7 of 2018(17) 39/53 onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the Defendant-Accused and the Defendant-Accused cannot be expected to discharge an unduly high standard of proof. In paragraph Nos. 27 and 28, following was laid down:
27. Section 139 of the Act is an example of a reverse onus Clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption Under Section 139 is a device to prevent undue delay in the course of litigation.
However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the Defendant-Accused cannot be expected to discharge an unduly high standard of proof.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an Accused has to rebut the presumption Under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the Accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the Accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the Accused may not need to adduce evidence of his/her own.
21. We may now notice judgment relied by Patna High Court CR.APP(U/S) No.7 of 2018(17) 40/53 the learned Counsel for the complainant, i.e., judgment of this Court in Kishan Rao v. Shankargouda, : (2018) 8 SCC 165. This Court in the above case has examined Section 139 of the Act. In the above case, the only defence which was taken by the Accused was that cheque was stolen by the Appellant. The said defence was rejected by the trial court. In paragraph Nos. 21 to 23, following was laid down:
21. In the present case, the trial court as well as the appellate court having found that cheque contained the signatures of the Accused and it was given to the Appellant to present in the Bank, the presumption Under Section 139 was rightly raised which was not rebutted by the Accused. The Accused had not led any evidence to rebut the aforesaid presumption. The Accused even did not come in the witness box to support his case. In the reply to the notice which was given by the Appellant, the Accused took the defence that the cheque was stolen by the Appellant. The said defence was rejected by the trial court after considering the evidence on record with regard to which no contrary view has also been expressed by the High Court.
22. Another judgment which needs to be looked into is Rangappa v. Sri Mohan : (2010) 11 SCC 441. A three-Judge Bench of this Court had occasion to examine the presumption Under Section 139 of the 1881 Act. This Court in the aforesaid case has held that in the event the Accused is able to raise a probable defence which creates doubt with regard to the existence of a debt or liability, the presumption may fail.
Following was laid down in paras 26 and 27:
(SCC pp. 453-54)
26. In light of these extracts, we are in agreement with the Respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat, may not be correct. However, this does not in any way cast doubt on the correctness of the Patna High Court CR.APP(U/S) No.7 of 2018(17) 41/53 decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the Accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
27. Section 139 of the Act is an example of a reverse onus Clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption Under Section 139 is a device to prevent undue delay in the course of litigation.
However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the Defendant-Accused cannot be expected to discharge an unduly high standard of proof.
23. No evidence was led by the Accused. The defence taken in the reply to the notice that cheque was stolen having been rejected by the two courts below, we do not see any basis for the High Court coming to the conclusion that the Accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability. How the presumption Under Section 139 can be rebutted on the evidence of PW 1, himself has not been explained by the High Court.
22. The above case was a case where this Court did not find the defence raised by the Accused probable. The only defence raised was that cheque was stolen having been rejected by Patna High Court CR.APP(U/S) No.7 of 2018(17) 42/53 the trial court and no contrary opinion having been expressed by the High Court, this Court reversed the judgment of the High Court restoring the conviction. The Respondent cannot take any benefit of the said judgment, which was on its own facts.
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 for the Accused to come in the witness box to support his defence.
21. In M/s. Shree Daneshwari Traders v. Sanjay Jain & Anr. reported in AIR 2019 SC 4003, It has been held as follows:-
"16. Under Section 138 of the Negotiable Instruments Act, once the cheque is issued by the Patna High Court CR.APP(U/S) No.7 of 2018(17) 43/53 drawer, a presumption Under Section 139 of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred to Under Section 138 of the Negotiable Instruments Act is for the discharge in whole or in part of any debt or other liability. The initial burden lies upon the complainant to prove the circumstances under which the cheque was issued in his favour and that the same was issued in discharge of a legally enforceable debt.
17. It is for the Accused to adduce evidence of such facts and circumstances to rebut the presumption that such debt does not exist or that the cheques are not supported by consideration. Considering the scope of the presumption to be raised Under Section 139 of the Act and the nature of evidence to be adduced by the Accused to rebut the presumption, in Kumar Exports v. Sharma Carpets : (2009) 2 SCC 513, the Supreme Court in paras (14-15) and paras (18-
20) held as under:
14. Section 139 of the Act provides that 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.
15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume"
(rebuttable), (2) "shall presume" (rebuttable), and (3) "conclusive presumptions" (irrebuttable). The term "presumption" is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the Patna High Court CR.APP(U/S) No.7 of 2018(17) 44/53 satisfaction of the tribunal. Presumption literally means "taking as true without examination or proof".
........
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, say a note, was executed by the Accused, the Rules of presumptions Under Sections 118 and 139 of the Act help him shift the burden on the Accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the Accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved"
in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
20. The Accused in a trial Under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or Patna High Court CR.APP(U/S) No.7 of 2018(17) 45/53 that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an Accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The Accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the Accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the Accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question 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.
[underlining added].
18. In the present case, by examining himself as PW-1, the complainant has discharged Patna High Court CR.APP(U/S) No.7 of 2018(17) 46/53 the initial burden cast upon him that the cheques were issued for the rice bags purchased on credit. With the examination of PW-1, the statutory presumption Under Section 139 of the Act arises that the cheques were issued by the Respondent- Accused for the discharge of any debt or other liability in whole or in part. The courts below disbelieved the evidence of the complainant on the ground that there are no averment in the complaint that the commodities were sold for cash and that the rice bags were sold on credit and the cheques were issued for the goods sold on credit. Though the complaint contains no specific averments that the cheques were issued for the purchase made on credit, in his evidence, PW-1 clearly stated that the cheques were issued for the commodities purchased on credit. The courts below erred in brushing aside the evidence of PW-1 on the ground that there were no averment in the complaint as to the purchases made by cash and purchase. The courts below also erred in not raising the statutory presumption Under Section 139 of the Act that the complainant received the cheques to discharge the debt or other liability in whole or in part.
19. It is for the Respondent-Accused to adduce evidence to prove that the cheques were not supported by consideration and that there was no debt or liability to be discharged by him. The receipts-Ex.-22/C (colly) relied upon by the Respondent-Accused do not create doubt about the purchases made on credit and the existence of a legally enforceable debt for which the cheques were issued. The courts below erred in saying that by the receipts-Ex. 22/C (colly), the Respondent-Accused has rebutted the statutory presumption raised Under Section 139 of the Negotiable Instruments Act. The oral and the documentary evidence adduced by the complainant are sufficient to prove that it was a legally enforceable debt and that the cheques Patna High Court CR.APP(U/S) No.7 of 2018(17) 47/53 were issued to discharge the legally enforceable debt. With the evidence adduced by the complainant, the courts below ought to have raised the presumption Under Section 139 of the Act. The evidence adduced by the Respondent- Accused is not sufficient to rebut the presumption raised Under Section 139 of the Act. The defence of the Respondent that though he made payment for the commodities/rice bags, the blank cheques were not returned by the Appellant-complainant is quite unbelievable and unacceptable. The impugned judgment of the High Court cannot be sustained and is liable to be set aside. The Respondent-Accused is convicted Under Section 138 of the Negotiable Instruments Act in both the complaints; however, considering that the cheque transaction was of the year 2003, at this distant point of time, we do not deem it appropriate to impose any sentence of imprisonment on the Accused.
20. In the result, the impugned judgment of the High Court in Criminal Appeal Nos. 53 and 54 of 2006 is set aside and these appeals are allowed. The Respondent-Accused is convicted Under Section 138 of Negotiable Instruments Act and a fine of Rs. 2,97,150/- (Rs. 53,171/- + Rs. 1,93,979/- + compensation of Rs. 50,000/-) is imposed on the Respondent in default of which, the Respondent shall undergo imprisonment for six months. The fine amount of Rs. 2,97,150/- is to be deposited before the trial court within twelve weeks from today, failing which the Respondent shall be taken into custody to serve the default sentence. On deposit of fine amount, the amount of Rs. 2,97,150/- shall be paid to the Appellant-complainant.
22. Now so far presumption against registered notice is concerned, in N. Parameswaran Unni v. G. Kannan reported in 2017 CrLJ 2838, it has been held as follows:-
Patna High Court CR.APP(U/S) No.7 of 2018(17) 48/53 "13. It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of Section 138 stands complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption."
23. In the background of , the settled principle of law as enunciated by the Apex Court referred hereinabove, now the facts of the case is to be recapitulated in order to properly appreciate the same in consonance with the finding so recorded by the learned lower court. From the record, it is evident that altogether three PWs have been examined who are PW-1, Dilip Kumar, PW-2, Binod Kumar and PW-3, Deepak Kumar. Side by side, prosecution has also exhibited Cheque, Ext-1, copy of Advocate notice, Ext-2, Registered Postal receipt, Ext-3, complaint petition, Ext-4. Nothing has been adduced on behalf of defence/Respondent No.2
24. The evidence of PWs-1 and 2 are not at all relevant because of the fact that they are not the persons anyway concerned with the affairs, although, came to the side of the complainant, PW-3. PW-3, during course of examination-in-
chief has stated that he gave friendly loan of an amount of Rs. Patna High Court CR.APP(U/S) No.7 of 2018(17) 49/53 25 Lacs on an undertaking at the end of the accused that the same will be returned back within one month. In the month of April, 2014, a sum of Rs. 1, 24, 000/- was returned back whereupon, Rs. 23, 76,000/- remained due for which, on persistent demand, accused issued a Cheque on 18.06.2014 which he deposited in his account running in the Axis Bank, Danapur which was dishonoured as, the bank had reported that signature is mismatching. He had deposited the slip issued by the bank. He served registered Advocate notice on 08.07.2014, exhibited the receipt issued by the post office. As within stipulated period, accused failed to pay, on account thereof, got this case filed. During cross-examination at para-3, he has stated that there was no document relating to aforesaid transaction.
Cash payment was made. In para-7, he has stated that no other case has been instituted for realization of the amount. In para-9, he has stated that Advocate notice was sent on 08.07.2014 but neither any reply was received by him nor payment was made, on account of failure of payment, the case has been filed. In para-13, he has stated that he is not remembering the Cheque no.. Cheque was given on 18.06.2014 and on the same day, it was deposited in the bank for encashment. He has received the slip from the bank that on account of insufficient fund, the Patna High Court CR.APP(U/S) No.7 of 2018(17) 50/53 cheque has not been encashed. In para-15, he has stated that accused has brought the cheque duly signed since before. He had not signed the cheque at his house. In para-17, he has stated that the Advocate notice was sent after the cheque got dishonoured. In para-18, he has stated that he had informed the incident of cheque bounce through Advocate notice. The most surprising feature is the suggestion given to the PW-3 at para-
28, "it is not a fact that no such kind of occurrence had ever taken place rather on account of old enmity, this false case has been instituted. It is not a fact that accused had not issued a cheque and, after creating a forged signature, this false case has been instituted."
25. From the record, it is evident that nothing has been adduced in defence. On 27.11.2017, while argument was going on, a petition was filed on behalf of defence that the cheque be sent to a hand-writing expert in order to examine the signature over the relevant cheque which the learned lower court vide order dated 10.01.2018 rejected the same and, Respondent No.2/accused had not challenged the same.
26. It is also to be taken into consideration that during course of cross-examination, the Respondent No. 2/accused had not challenged the cheque leaf bearing no. 204735 was not Patna High Court CR.APP(U/S) No.7 of 2018(17) 51/53 issued by the Bank in his favour nor there happens to be any disclosure at the end of the Respondent No.2/Accused as to how the appellant/complainant succeeded in procuring the same and further, steps having taken at the end of Respondent No. 2/Accused with regard thereto. That means to say, when the conduct of the Respondent No. 2/Accused is taken together with the suggestion having given to the PW-3/appellant/complainant, it is apparent that Respondent No. 2/accused had not denied issuance of cheque. That means to say, there happens to be admission by way of suggestion and the same, has been accepted by the Apex Court in Tarun Bora @ Alok Hazarika v.
State of Assam reported in 2002 CrLJ 4076, It has been held as follows:-
"16. In cross-examination the witness stated as under:
"Accused-Tarun Bora did not blind my eyes nor he assaulted me."
17. This part of cross-examination is suggestive of the presence of accused -- Tarun Bora in the whole episode. This will clearly suggest the presence of the accused -- Tarun Bora as admitted. The only denial is the accused did not participate in blindfolding the eyes of the witness nor assaulted him.
27. After going through the judgment impugned, it is evident that the learned lower had drawn inference against the case of the appellant/complainant under para-8 whereunder the Patna High Court CR.APP(U/S) No.7 of 2018(17) 52/53 learned lower court had observed that there happens to be no supportive document with regard to part payment appertaining to Rs. 1,24,000/-. Furthermore, also relied upon the decision of Kerala High Court in relation to Cr. Appeal No. 560/2007 wherein, it has been observed that complainant is under obligation to furnish positive evidence with regard to receipt of Advocate Notice. Contrary to the principle laid down by the Apex Court.
28. However, failed to appreciate the mandate of law, object of the statute in consonance with the relevant evidence of PW-3 coupled with the suggestion given by the Respondent No. 2/Accused coupled with the silence of the accused in order to discharge the burden as envisaged under Section 139 of the NI Act.
29. Consequent thereupon, the judgment impugned is set aside. Appeal is allowed. The appellant is found guilty for an offence punishable under Section 138 of the NI Act and hence is directed to undergo RI for one year as well as fined twice of the amount of cheque, in default thereof, to undergo SI for three months. In case of deposit of fine amount, half will be given to the appellant/complainant. Respondent No. 2/accused/convict is directed to surrender before the lower court within fortnight to Patna High Court CR.APP(U/S) No.7 of 2018(17) 53/53 serve out the sentence.
(Aditya Kumar Trivedi, J)
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