TaxTMI 
TaxTMI 
2021 (12) TMI 278
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....ainant thus came in contact with the accused and they developed a good relationship. On 31.10.2010 accused met the complainant in his house and requested him to give a loan of Rs. 4,50,000/- to him to meet some urgent requirements. Accused assured the complainant that he would pay back the money within next 45 days. On good faith complainant gave a loan of the amount of Rs. 4,50,000/- to the accused and the accused in turn issued a cheque bearing Nos. CAB00/134-838693 dated 13.11.2010 for an amount of Rs. 4,50,000/- drawn on the SBI in favour of the complainant and instructed the complainant to present the cheque at the bank for encashment only after 45 days. Accordingly, the complainant presented the cheque to the SBI at the Kailashahar branch on 29.12.2010 for encashment. But the cheque was returned with the endorsement that the accused had insufficient fund in his account. On 22.01.2011 i.e. within 30 days of the dishonor of the said cheque, complainant issued a notice through his counsel to the petitioner. The notice was returned unserved with the endorsement of the postal authorities that accused was "out of station for long time". Thereafter, the complaint was filed since the....
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....declined to adduce any evidence on his defence. 6. Having appreciated the evidence, the learned trial court, after hearing the parties at length and considering the submissions made by their counsel, held the accused guilty of offence punishable under Section 138 NI Act and sentenced him to SI for 6 months with a fine of Rs. 4,50,000/- with default stipulation and directed that fine if realized, be paid to the complainant namely Ramsujit Goala. Relevant extract of the judgment of the trial court is as under: "41. In the result, the convict namely Sri Banawari Sinha is hereby sentenced to suffer Simple Imprisonment (SI) for six (6) months and is also sentenced to pay fine of Rs. 4,50,000/- (Rupees four lacs fifty thousand) only for the commission of offence punishable u/s. 138 of the NI Act, in default to pay the amount of fine to suffer Simple imprisonment for 6 (six) months. 42. The surety of the accused-convict stands discharged from the liability of the bail bond. 43. In the event of realization of the fine money amounting to Rs. 4,50,000/- (Rupees four lacs fifty thousand), the same shall be paid to the complainant of this case namely Sri Ram Sujit....
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....l clutch and to evade from having been served the notice, he intentionally remained himself out of station. On perusal of the reply of the appellant in his examination U/s 313 of Cr.P.C. it is also found that the appellant admitted the same address to which the notice was served and as such, the explanation offered by the learned trial court regarding receipt of the notice by the appellant is justified. 8. To prove a case U/s 138 of the NI Act following requirements are to be fulfilled:- I) Drawing of the cheque, II) Presentation of the cheque 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) Returning of the cheque unpaid by the drawee bank due to insufficiency of funds or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank, IV) Giving notice in writing to the drawer of the cheque within 30 days of the receipt of information about the dishonor demanding payment of the cheque amount, and V) Failure of the drawer to pay the cheque amount to the payee within 15 days of the receipt of the said ....
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....the Hon'ble Supreme Court in PARMINDER KAUR VS. STATE OF PUNJAB reported in (2020) 8 SCC 811 wherein the Apex Court vide paragraph 22 of the judgment has held as under: "22. Under the Code of Criminal Procedure, 1973 after the prosecution closes its evidence and examines all its witnesses, the accused is given an opportunity of explanation through Section 313(1)(b). Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial Court in compliance with the mandate of Section 313(4). Such opportunity is a valuable right of the accused to seek justice and defend oneself. Failure of the trial Court to fairly apply its mind and consider the defence, could endanger the conviction itself. Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities. Thus, once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defense plea. " 10. Counsel has also relied on the decision of the Apex ....
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....t against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (Delhi Admn.) while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facts by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise." Again, in its recent judgment in Manu Sao v. State of Bihar [ (2010) 12 SCC 310], a Bench of this Court to which one of us, Swatanter Kumar, J., was a member, has reiterated the above-stated view as under: "12. Let us examine the essential features of this Section 313 CrPC and the principles of law as enunciated ....
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....quiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution." Mr. Bhowmik, learned counsel of the petitioner further contends that the service of notice is a sign qua non for prosecution under Section 138 NI Act. The record would reveal that no statutory notice was served on the accused petitioner. Counsel therefore, urges the court to set aside the impugned judgment and order of conviction and sentence of the petitioner. 11. Mr. P. Roy Barman, learned Sr. Advocate appearing for the complainant submits that complainant being a pensioner on good faith gave loan of a huge sum of Rs. 4,50,000/- to the accused since the accused who was a bank employee assured the complainant that he would pay back the money within 45 days. According to Mr. Roy ....
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....ment of the High Court from the aforesaid stand point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter the impugned Judgment of the High Court is wholly unsustainable in law and we, accordingly set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence." 12. With regard to the service of statutory demand notice, counsel has relied on the decision dated 17.11.2020 of this court in Crl.Rev.P. No. 79 of 2017 whereby it was held by this court that notice, duly directed, shall serve the purpose of law. In the said judgment, earlier decision of this Court in Keshab Banik Vs. Shekhar Banik reported in 2013 1 TLR 528 was relied up....
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....it is duly delivered to him or at the place of his business. 20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape-from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 21. In Maxwell's "Interpretation of Statues" the learned author has emphasized that "provisions relating to giving of notice often receive liberal interpretation." (vide page 99 of the 12th edn.) The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the Legislature. The words in clause (b) of the proviso to section 138 of the Act show that payee has....
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....he Act invites a liberal interpretation for the person who has statutory obligation to give notice. If a strict interpretation is given that the drawer should have actually received the notice or the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies, and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader, and clips on honest payee as that would defeat the very legislative measure. The payee has statutory obligation to give notice because he is presumed to be the loser in the transaction. Payee has to make demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the Legislature say that failure on the part of the drawer to pay amount should have been within 15 days "of the receipt" of the said no....
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....re thereon. During his examination under Section 313 CrP.C. under questions No. 2 and 4, the evidence of PW-1 and 2 with reference to the cheque number were explained to the accused. Accused simply replied that their evidence was false. 15. It is settled that Section 138 NI Act requires proof of the following essential ingredients: (ii) The cheque is drawn on an account maintained by the accused with his banker for payment of any amount to another person from his account in discharge in the whole or part of the debt or liability and (iii) The cheque is returned by the banker in all either because of insufficient fund in the account of the accused to honour the cheque or that the cheque amount exceeds the amount arranged to be paid from that account by an agreement made with the banker. 16. In the present case, the complainant has presented a probable story supported by evidence. It stands established that he developed a relationship with the accused who was a cashier at the Kailashahar branch of SBI where the complainant used to come for drawing his pension. It is not denied that as an employee of the bank the accused maintained a bank account in the said br....
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....e general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid at p 65, para 14). 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 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 ....
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....dduce 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..." 21. With regard to the plea of the accused regarding non service of the statutory notice, the trial court as well as the appellant court has rightly held that notice dated 22.01.2011 ....