TaxTMI 
TaxTMI 
2020 (5) TMI 340
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....r dated 24th October, 2019 passed by the Sessions Judge, Jalaun in Criminal Revision No. 66 of 2019, whereby the revision filed by the applicant against the summoning order dated 7th May, 2019, has been dismissed. 4. The facts, as borne out from the records of the present application, are as follows: The complainant/opposite party no.2 and applicant are relatives, as the applicant is son-in-law of brother of the complainant/opposite party no.2. In month of April, 2016, being the relative of the complainant, the applicant had taken a loan of Rs. 1,90,000/- from the complainant for purchasing of tractor and installation of tube-well on his field, on the assurance that he would repay the same within a year. After expiry of the aforesaid period, when the complainant requested the applicant to return the aforesaid money, he deferred the same. When the complainant exerted pressure upon the applicant to repay the same, he had given a cheque no. 806369 of Vijaya Bank for a sum of Rs. 1,90,000/- to the complainant on 15th January, 2019. On the same day, the complainant has presented the same before the Central Bank of India, where her saving bank account is maintained, for encashment, but....
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....sided in the room of the applicant in November, 2018 and they stole the cheque book of the applicant and by making his forged signatures, they cooked up a false and frivolous story. It is further submitted that the applicant was not engaged in agriculture for which he had to take any loan. His father and two elder brothers are engaged in agriculture. When he came to know that Sandeep son of opposite party no.2 had stolen his cheque book and forged his signatures on one leaf and deposited in the account of opposite party no.2 at Orai as conspired, the applicant gave reply to the legal notice sent by opposite party no.2 through her Advocate on 5th March, 2019. It is further submitted that after getting reply of notice, opposite party no.2 instead of contacting the applicant and clarifying the matter, straightway filed the present complaint case against him on 19th March, 2019 without enclosing copy of the reply of applicant. The concerned Magistrate, without application of judicial mind, took congizance and summoned the applicant on 7th May, 2019. Since the applicant was residing in Delhi, he had no knowledge about the summoning order issued against him and could not appear before th....
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....nst the applicants are not only malicious but also amount to an abuse of the process of the Court. On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the applicants that the proceedings of the above mentioned complaint case are liable to be quashed by this Court. 7. Per contra, Mr. Chauhan learned counsel for the State has opposed the submissions made by the learned counsel for the applicant by contending that there is no illegality or infirmity in the order of summoning of the applicant passed by the concerned Magistrate, as also in the order affirming the same passed by the revisional court. It is further submitted that the submissions made by the learned counsel for the applicant that stolen cheques cannot be a basis of constituting an offence of Section 138 of N.I. Act is liable to be rejected on the ground that it is not a case of fraud, conspiracy or stealing of cheques. As per the own case of the applicant, It is only after receiving legal notice sent by opposite party no.2 through her Advocate, he made an application before the Bank about missing of cheques and stopping of his account only on 28th February, 2019 and thereafter h....
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.....G.A. for the State submits that the present application is liable to be dismissed. 8. I have considered the submissions made by the learned counsel for the applicants and have gone through the records of the present application. 9. Before expressing any opinion on the merits of the case set up by both the parties, it would be worthwhile to reproduce Sections 118, 138 and 139 of the Negotiable Instrument Act, which are quoted herein-below: "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; (c) as to time of acceptance -that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer -that every transfer of a negotiable instrument was made before its maturity; (e) as to order ....
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....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." 10. From the above, it is manifestly clear that a dishonour would constitute an offence only if the cheque is returned by the bank 'unpaid' either because the amount of money standing to the credit of the drawer's account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by him from the bank regarding such dishonor and where the drawer of the cheque fails to ....
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....e presumption under Section 139 is a rebuttable presumption. Before this Court refers to various judgments of the Apex 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. 13. A Three-Judge Bench of the Apex Court in the case of Kali Ram Vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808 has 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 i....
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....iably 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 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......" 15. In M.S. Narayana Menon Alias Mani Vs. State of Kerala and Another, reported in (2006) 6 SCC 39, the Apex Court had considered Sections 118(a), 138 and 139 of the Act, 1881 and held that that presumptions both under Sections 118(a) and 139 are rebuttable in nature. Explaining the expressions....
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....ed 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." 18. In Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, reported in (2008) 4 SCC 54, the Apex Court has 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." 19. The Apex Court again r....
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.... 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 nonexistence was so probable that a prudent man would under the circumstances of the c....
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....ence 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." 23. Elaborating further, the Apex Court has held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendantaccused 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 pr....
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....ich 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 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 presumpt....
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....ation on 21st April, 2001 and when the said blank cheques were alleged filled up on 24th June, 2001 and presented before the Bank, the same were returned dishonoured with the remarks "Said cheque reported lost by the drawer". However, in the facts of the present case, as per the own statement of the applicant that sons of opposite party no.2 went to the place of applicant at New Delhi and stole the cheques of the applicant in November, 2018 and after making forged signatures of the applicant, on 15th January, 2019 opposite party no.2 had presented the same before the Bank but same has been returned by the Bank to the complainant on 19th January, along with return memo that there was no sufficient balance in the account of the applicant. Thereafter the complainant/opposite party no.2 sent a legal notice to the applicant through her advocate on 6th February, 2019 within 15 days of the receipt of return memo, which has been served upon him on 9th February, 2019. Only on 28th February, 2019, the applicant had informed the Bank about his missing of cheques and stoppage of his bank account. Thereafter on 5th March, 2019, he had given reply to the legal notice dated 6th February, 2019 but....
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....he account of the applicant. Therefore, the case relied upon the by the learned counsel for the applicant in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. (supra) is also not applicable. 27. In view of the aforesaid, this Court finds substance in the contention raised by the learned A.G.A. for the State that there is no illegality or infirmity in the orders passed by both the courts below. This Court also finds that the trial Court after examining the original copy of cheque, cheque return memo, bank receipt, notice, notice delivery statement and original registry receipt, has found substance in the submission of the complainant and has observed that prima facie case for the offence punishable under Section 138 N.I. Act is made out against the applicant and he has rightly passed the impugned order dated 7th May, 2019 summoning the applicant. This Court also finds that after hearing the learned counsel for the parties and examining the records available on record, the revisional court has rightly rejected the criminal revision filed by the applicant against the summoning order dated 7th May, 2019. While passing the impugned order, the revisional court has recorded a finding....
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..... Since second revision by the same party is prohibited under Section 397(3), therefore, any argument on `legality' or `propriety' of an order passed by the Court below, ordinarily, is not to be appreciated in proceedings under Section 482 Cr.P.C, unless it is shown, at the macro level, that such an order has resulted from considerations which were totally alien to the process of the Court or have produced incomprehensibly absurd result and, therefore, have resulted in defeating the ends of justice itself. What cannot be done directly, cannot be done indirectly as well. In the present case, except to argue for re- appreciation of the material before the trial Court, there is not even a submission or an allegation regarding any aberration in the process adopted by the Courts for passing the impugned orders. Therefore, power under Section 482 Cr.P.C cannot be exercised by this Court to re-appreciate the same material, which was available before the Courts below and which have been duly appreciated by the Courts below. 29. Apart from the above, this Court also observes that plea taken on behalf of the applicant that the present complaint is not maintainable on the ground that....