TaxTMI 
TaxTMI 
2018 (5) TMI 725
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....ocuments filed by the respondent for return of jewellery were photocopies, thus, inadmissible in evidence. While placing reliance upon the decisions of Supreme Court reported as JT 2011 (3) 3 SC 522 H. Siddiqui (dead) by LRs v. A. Ramalingam and (2016) 16 SCC 483 Rakesh Mohindra v. Anita Beri and Others, it is submitted that admission of a document in evidence does not amount to the proof of contents of the document. It is further submitted that contents of documents of a secondary evidence cannot be admitted in evidence without production of the original, for which reliance is placed upon the decision of Supreme Court reported as JT 2007 (6) SC 64 Smt. J. Yashoda v. Smt. K. Shobha Rani. Lastly, it is urged that non disclosure of the loan amount in the ITR is not fatal to the case and to buttress this argument, reliance was placed upon the decision of coordinate bench of this Court reported as 2015 (221) DLT 585 Lekh Raj Sharma v. Yash Pal Gupta. 3. On the other hand, learned counsel for the respondent submits that Amarjeet Singh (CW-1) admitted the receipts of jewellery vide Ex.CW1/D1 to Ex.CW-1/D3, signatures on Ex.CW-1/D4 and handwriting on Ex.CW-1/D5 in his cross examination....
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....or 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 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 ....
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....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 post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act. 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." 20. The 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 : (2008) 2 SCC (Cri) 166], the operative observations from which are reproduced below: (S.B. Sinha, J. at SCC pp. 61-63, paras 29-32 & 34) "29. Section 138 of the Act has three ingredien....
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....s version. It was reasoned that it is open to the accused to rely on the materials 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. 21. Specifically in relation to the nature of the presumption contemplated by Section 139 of the Act, it was observed: (Krishna Janardhan Bhat case [(2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] , SCC p. 66, para 45) "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....
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....of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but 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) 23. The respondent claimant has also referred to the decision reported as Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm [(2....
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....f 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 nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist." (emphasis supplied) Interestingly, the very same extract has also been approvingly cited in Krishna Janardhan Bhat [(2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166]. 25. With regard to the facts in the present case, we can also refer to the following observations in M.M.T.C. Ltd. v. Medchl Chemicals & Pharma (P) Ltd.[(2002) 1 SCC 234 : 2002 SCC (Cri) 121] : (SCC p. 240, para 19) "19. ... The authority shows that even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 the cou....
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.... guide the construction and interpretation of reverse onus clauses and the defendant-accused 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 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. 6. Briefly stated, the appellant's case is that the respondent purchased diamonds/jewellery from the appellant on credit bases which was acknowledged by the respondent vide MOU dated 18th October, 2012 and in discharge of her liability, she issued post dated cheques including cheque Nos. 95821....
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....defence, respondent cross examined the appellant. Relevant extract of the cross-examination of the appellant is as under: Annexure A is the list of articles. Articles mean jewellery. The goods/jewellery as mentioned in Annexure A has been delivered to the accused on approval basis. That's why no bill/invoice was prepared against the said jewellery. Approval basis means the purchaser shows their products for sale to their customers and if said customers approve and agree to purchase their goods then that product has become final for sale. As per the requirement of customer I issue the bills/invoices of the product/goods which become final for sale. I have not issued any bill with the respect to goods sold. Vol: Because the bill never demanded by the accused. I have not prepared any bills/invoice for the said supplied goods as alleged in my books of accounts also. It is wrong to suggest since I have not entered any entry of the said sale/approval basis goods to the accused, thats why no goods worth Rs. 34 lakhs as alleged was given to accused and her husband namely Rajesh Sharma on approval basis. *** Q. Whether the bill of the goods delivered on approval basis is never ....
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....dmit or deny the suggestion that the goods mentioned in Mark XP were worth Rs.5,06,460/-. Vol: As I do not remember the gold value at that time. (The witness is shown original document Mark XQ and is asked whether it bears his signature at point A.) The Signature at point A are mine and I also admit the contents of the said document. Q: Can you tell the value of the said goods in Mark XQ? Ans: As per my calculation the value of diamonds is Rs.1,09,640/. Gold is 22.708 grams, and its value is as per the market price at that time on CNBC. I am not sure that the gold market rate on 16.01.2013 was Rs.29,300/- per 10 gram i.e the total price of gold was Rs.66,534/-. It is wrong to suggest that the value of diamond in the said document is Rs.3,36,220/-. I cannot admit or deny the suggestion that the goods mentioned in Mark XQ were worth Rs.4,02,754/-. Vol: As I do not remember the gold value at that time. (The witness is shown original document Mark XR and is asked whether it bears his signature at point A.) The signature at point A are mine. Vol: it is not related to the present transaction. I also admit the contents of the said document. Vol: It is part of Mark XP. It is....
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....ent which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to obje....
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....in view of the decision of Supreme Court reported as (2000) 8 SCC 740 Basavaraj R. Patil v. State of Karnataka wherein it was observed that Section 313 Cr.P.C. is only for the benefit of the accused and prejudice, if any, can only be caused to the accused for his non-examination under Section 313 Cr.P.C. and not the complainant. Relevant extract of the report is reproduced as under: 18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab [AIR 1963 SC 612 : (1963) 1 Cri LJ 495] Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focused on the ultimate test in determining whether the provision has been fairly complied with. He observed thus: "The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against h....