TaxTMI 
TaxTMI 
2017 (8) TMI 573
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....r, thereafter, unsuccessfully appealed before the ASJ-02 (East), Karkardooma Courts vide Crl. Appeal No.57/2012. The Appellate Court did not find any merit in his appeal and dismissed the same. 3. The present revision petition assails both the judgments by the courts below. 4. A complaint was filed by the respondent alleging that he was known to the petitioner who had approached him for financial help of Rs. 20 lakhs for 10 days. On such demand by the petitioner, it was further alleged that a sum of Rs. 17,20,000/- was paid to him in the month of April, 2008 against an oral agreement. In discharge of such liability, the petitioner is said to have issued two post dated cheques on 03.04.2008 in the name of the respondent; one of 05.04.2008 (Cheque No.432458, drawn on HDFC Bank Ltd. Guwahati, Assam for an amount of Rs. 7,20,000/-) and the other of 08.04.2008, (Cheque No.432457 drawn on the same bank for an amount of Rs. 10 lakhs), with a caveat that those cheques would not be presented in the bank till 22.05.2008. The aforesaid cheques were presented for encashment and they were returned unpaid vide memo dated 24.05.2008. For one cheque of Rs. 7,20,000/-, there was an instruction to....
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....gh, admitted that he knew Anil Shandilya but has not spoken about him either in his complaint or in his evidence. Another aspect which was dwelled by the petitioner was the document adduced on his behalf (Mark D1) which is a "money receipt cum agreement to sell", which was executed between the petitioner and one Madan Verma. The case of the petitioner is that such an agreement was entered into through the agency of one Anil Shandilya who brokered the agreement for purchase of property bearing No.N-27, First Floor, South Extension, Part-I for a total consideration amount of Rs. 72 lakhs. The aforesaid agreement which is also in the nature of a money receipt indicates that advance/part payment was made vide two cheque Nos.432458 and 432457 for the amount of Rs. 7,20,000/- and Rs. 10 lakhs respectively which was accepted by the respondent, Rajiv Kashyap. The petitioner had made out a case that he had given those cheques in question to the broker, Anil Shandilya and at his instance the cheque was drawn in favour of the respondent who was an associate of aforesaid Anil Shandilya. The further case of the petitioner is that the deal for purchase did not finalize and therefore the petition....
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....tion of the respondent that on the demand of the petitioner, Rs. 17,20,000/- was given in cash. In discharge of the aforesaid liability of the petitioner, two cheques were drawn in the name of the respondent, which were dishonoured. It has further been submitted on behalf of the respondent that even if one of the cheques was returned because of alteration, that also would fall within the genus of "dishonour" of cheque, making the petitioner liable to be prosecuted under Section 138 of Negotiable Instruments Act. The "agreement to sell cum receipt" brought on record by the petitioner is not a document which could be relied upon. The notice regarding dishonor of cheques was promptly sent to the petitioner and it was wrong for the petitioner to contend that such notice was not received by him. 18. A bare perusal of the Trial Court judgment reveals that the contradiction in the statement of the respondent as well as the documents produced by him were noted by the learned Trial Court but were not given any weightage; rather the Trial Court relied upon the fact that the petitioner himself accepted in his cross-examination that he had taken overdraft from Vijaya Bank and was under some l....
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....the petitioner has not been able to rebut the presumption under Section 139 of Negotiable Instruments Act, 1881:- "8. In support of his contention that some property transaction was entered into between him and Anil Shandilya, the appellant had brought on record a money receipt cum agreement. This document was never proved as only photocopy of the agreement was filed on record. The appellant did not even seek the permission of the court to allow this document to be accepted as a secondary evidence. The document has not been proved as per the Indian Evidence Act at all and cannot be accepted against the complainant even for the purposes of rebuttal of presumption. The document in any case is not in the name of either the complainant or alleged Anil Shandilya. The appellant therefore has failed to rebut the presumption regarding the consideration as laid down u/s 139 NI Act." 21. It would be necessary to refer to the relevant provisions of the Negotiable Instruments Act for appreciating the contentions of the parties. 118. Presumptions as to negotiable instruments. - Until the contrary is proved, the following presumptions shall be made: (a) of consideration: that every negotia....
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....441 has held as follows: "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 accused/defendant cannot be expected to discharge an unduly high standard or 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....