TaxTMI 
TaxTMI 
TaxTMI 
2021 (12) TMI 279
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....nesses in support of the allegations made against respondent no. 1. Although the respondent no. 1 cross examined the witnesses of the appellant, he did not lead evidence in his defence. 4. On completion of the proceedings before the Court of Judicial Magistrate, First Class, final arguments were heard and the Magistrate found that the respondent no. 1 deserved to be acquitted. The Magistrate found that the appellant had failed to demonstrate that the cheques in question were issued in respect of specific debt or liability and that therefore, no case for conviction under Section 138 of the aforesaid Act was made out. 5. Mr. Ajit Kantak, learned Counsel appearing for the appellant submitted that the entire approach adopted by the Magistrate was erroneous for the reason that the concept of civil litigation was sought to be read into the present case. It was submitted that the provisions of the aforesaid Act, particularly presumption that arose under Section 139 thereof, was completely ignored by the Magistrate while acquitting the respondent no. 1. It was submitted that the presumption that operated in favour of the appellant and against respondent no. 1 was not rebutted in any mann....
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....s of Panaji bus stand, the appellant was expected to place before the Court the amount allegedly due from the respondent no. 1 in respect of Panaji Bus stand and that the cheques issued pertained to the said amount allegedly due. The learned counsel for the appellant further submitted in the absence of appropriate material being placed on record and the witnesses of the appellant being exposed in cross examination, there was no necessity for the respondent no. 1 to lead evidence in defence. It was further submitted that the presumption that arose under Section 139 of the aforesaid Act was a rebuttable presumption on the test of preponderance of probabilities. The learned Counsel for the respondent no. 1 relied upon the judgment of the Hon'ble Supreme Court in case of the M.S. Narayana Menon alias Mani Vs. State of Kerala and another, (2006) 6 SCC 39, judgments of this Court in the case of Laxmikant D. Naik Vs. Santosh V. Naik, 2006(2) Bom.C.R.(Cri.)830, M/s. Enpee Earthmovers Vs. M/s. Resources International and ors., 2013(1) ABR 646 and judgment and order dated 22.8.2007 passed by this Court Criminal Appeal No. 63 of 2005(Karekar Finance Pvt. Ltd. Vs. Shri M.N. Bashyam and ano....
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....ct period was stated to be one year i.e. from 1.7.2007 to 30.6.2008. 11. The respondent no. 1 was directed to furnish bank guarantee on the basis of existing rates pertaining to the bus stand fees and reference was also made to the revision of the rates of the bus stand fees and parking fees. On 6.5.2009, the appellant, through its Assistant Engineer, sent a letter to respondent no. 1 stating that there were outstanding dues of bus stand fees and parking fees pertaining to Panaji and Bicholim bus stands. The alleged amounts due were stated in the said letter, specifically claiming that the total amount of dues were Rs. 5,56,888/- 12. In response, the respondent no. 1 sent a letter dated 26.6.2009 to the appellant stating that amount due for aforesaid bus stands came to about 3,50,000/-, claiming that certain amounts were not adjusted against the arrears. He stated that he had given two post-dated cheques, making a further specific request to the appellant that the accounts department must verify the dues. 13. It is significant that on 13.6.2007, much prior to exchange of the said communications, the appellant had communicated to the respondent no. 1 that for the period between 1....
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....affidavit in evidence, this witness stated that the respondent no. 1 was liable to pay dues towards bus stand fees for Panaji bus stand and Bicholim bus stand and also parking fees towards Panaji bus stand. This was a clear improvement over the statement in the original complaint, which pertained only to the dues towards bus stand fees of Panaji bus stand. This witness stated that the three dishonoured cheques were issued by the respondent no. 1 towards total outstanding Rs. 5,55,888/- as on 6.5.2009. In the cross examination, this witness claimed that the matter pertained to the dues concerning three bus stands. But, he referred to Exh. 66-C and admitted that the amount shown outstanding was less than the total amount of the three cheques. This witness referred to the notice issued and complaint filed on behalf of the appellant and admitted that there was no mention of Bicholim bus stand fees and further specifically stated that it was true that the notice was defective, as the value was not correctly mentioned. 17. The appellant examined PW3 Tukaram Pawse, the Deputy Finance Controller of the appellant. He stated in cross examination that dues against the respondent no. 1 as on ....
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....he respondent no. 1 to confront the witnesses in cross examination, which brought on record material that effectively rebutted the presumption that could have operated in favour of the appellant under Section 139 of the aforesaid Act. 20. Hence, the appellant is not justified in contending that since the respondent no. 1 failed to lead evidence in defence, the presumption ought to have operated against him. The presumption can be rebutted on the touchstone of preponderance of probabilities and it stands rebutted not necessarily by leading defence evidence on behalf of the accused but it can be rebutted by discrediting the witnesses of the complainant by thorough cross examination. This is exactly what has happened in the present case, which was properly appreciated by the Magistrate while acquitting the respondent no. 1. 21. In this context the learned counsel appearing for the respondent no. 1 is justified in relying upon the judgment of the Hon'ble Supreme Court in the case of M.S. Narayana Menon alias Mani Vs. State of Kerala and another (supra), wherein it was held that in such cases the complainant must place on record details of accounts and books of accounts to demonst....
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....er liability as well. But, in the present case when the stated case of the appellant itself was that the cheques in question were issued specifically with reference to the dues and therefore, the liability pertained only to Panaji bus stand, there was no question of taking into consideration alleged liabilities pertaining to other bus stands, while considering the case of the parties. 26. In the case of K.N. Beena Vs. Muniyappan and another (supra), the Hon'ble Supreme Court referred to the presumption that arises under Sections 118 and 139 of the aforesaid Act. This Court has already discussed the said aspect herein above and it is found that in the facts of the present case, despite presumption that would arise under Sections 118 and 139 of the said Act, the respondent no. 1 could not be held liable for the said offence. 27. In the case of Rangappa Vs. Sri Mohan (supra) the Hon'ble Supreme Court again referred to the presumption that would arise under Section 139 of the aforesaid Act. But, it was held that when the accused is able to raise a probable defence which creates a doubt about existence of a legally enforceable debt or liability, for which the accused can rely ....