TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 652
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....case. Having recorded, thereafter, the statement of the respondent under Section 313 Cr.P.C. on 4.2.2016, she not adducing any evidence in defence, the ACMM heard the parties and, by judgment dated 30.3.2016, pronounced acquittal holding that the statutory presumption (under Section 139 of Negotiable Instruments Act) stood rebutted, the facts pleaded by the appellant (complainant) about the liability being highly improbable. 2. By the criminal appeal at hand, instituted with leave of this Court, as granted by order dated 23.1.2017, in terms of Section 378 (2) Cr.P.C., the complainant seeks to assail the afore-said result of the criminal case. 3. The respondent has resisted the appeal by oral submissions on the basis of trial court record which has been called for and perused. Arguments of both sides, through counsel, have been heard. 4. The background facts, simply put, are that the complainant alleges that he and respondent have been acquainted with each other for a long time, she having approached him for financial assistance and he having advanced an amount of Rs. 2 lakhs to her in February, 2009 for repayment of which she had issued a cheque it bearing No. 263601 dated 12th ....
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....al receipt (Ex.CW-1/11) on 8.12.2009 and under postal certificate (Ex.CW-1/12) also on 8.12.2009, have further been proved. The complainant also brought on record copy of the legal notice dated 25.8.2009 (Ex.CW-1/1) which had been earlier issued by him in the context of previous cheque dated 12.8.2009 which had also returned dishonoured by the bank. 6. In answer to the notice under Section 251 Cr.P.C., the respondent, while pleading not guilty, explained her defence as under:- "I had given blank signed cheque in the name of the complainant without writing the cheque amount. I had taken Rs. 30,000/- from the complainant as loan and the complainant had extended me loan through a cheque drawn on Punjab Nations Bank. The said cheque has been misused by the complainant. I had never taken Rs. 5,00,000/- in cash or in kind from the complainant. The complainant had obtained the receiving from me with regard to Rs. 30,000/- extended by him along with interest of 10% per month. I had given the cheque without writing the cheque amount as it was agreed between us that if I failed to make payment of Rs. 30,000/- along with interest, the complainant could have used this cheque for an amount of....
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....s revealed certain improbable facts, for example, the complainant deposed that he earns an amount of Rs. 12,000 only per month and is dependent upon his parents for his livelihood and day to day survival. Now, it is highly improbable that a person who earns Rs. 12,000/- only per month shall grant a loan of Rs. 5 lakhs to the accused when the accused has already showed inability to repay the earlier loans of Rs. 2 lakhs as alleged by the complainant. From the cross-examination of the complainant, this Court is of the opinion that the complainant is a habitual moneylender and is not an income tax assessee and the complainant is not revealing the true and complete facts of the case before this court. It is a cardinal principle of law that one who seek justice must come to the court with clean hands. Accused has been able to rebut the statutory presumptions mandated by the negotiable instruments act and has been able to prove a defence on the scale of preponderance of probabilities and has proved that the facts and story told by the complainant in his complaint are highly improbable if not impossible. Therefore, in view of my above-mentioned observations and discussions, this court acq....
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....er liability; (ii) that 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; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the 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 the bank; (iv) the payee or the holder in due course of the cheque 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 15 days (now 30 days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice." 12. As observed by this court, in Col. (Retd.) H.C. Goswami vs. State of Delhi & Anr. in WP(Crl) 949/2009 decided on 18th May, 2017:- "8. A bare reading of the above provision shows that mere issuance of a cheque does not constitute an offence. The retur....
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....nal complaint under Section 138 Negotiable Instruments Act admits his signature on the cheque in question, presumption that the cheque pertained to a legally enforceable debt or liability arises under Section 139, such presumption being "of rebuttal nature" and the onus being "on the accused to raise a probable defence". The court noted the statutory presumptions in terms of Section 118 (a) and Section 139 of Negotiable Instruments Act and following the earlier decision in Goaplast (P) Ltd. Chico Ursula D' Souza (2003) 3 SCC 232 also held that such presumption would arise giving rise to prosecution under Section 138 of Negotiable Instruments Act even where the 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 sufficiency of funds in the account" inasmuch as "by countermanding payment of post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138", since a contrary view would render the penal clause a dead letter providing "a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other ....
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.... 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 nonexistence 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....
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....eswara Rao v. Thadikonda Ramulu Firm (2008) 7 SCC 655, it was observed:- "17. 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 nonexistence 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." (emphasis supplied) 20. Taking note of the above judgments, in Rangappa (supra), it was held thus:- "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....