TaxTMI 
TaxTMI 
2023 (7) TMI 1232
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....ria, Police Station Jamuria, District- Burdwan, dealing with petrol, diesel and lubricants and maintains one current account being No.CC 1056 with Dena Bank, Asansol Branch. The accused persons are partners of a concern named and styled as M/s. G. S. Atwal & Co. That in course of running their business the accuseds/respondents used to purchase various kinds of petrol, diesel and lubricants on credit from the appellant and in lieu of such business, the accused persons issued a cheque bearing Cheque No.CAB00/148317/072 dated 25.04.2002 drawn on State Bank of India, Asansol Bazar Branch for Rs.35 lakhs in favour of the appellant's firm on behalf of the respondent no.1 company towards part payment of petroleum products. The said cheque which was handed over to the appellant was placed for encashment with his banker, Dena Bank on 23.08.2002, but the same returned dishonoured on 24.08.2002. On 04.09.2002 the appellant sent a notice under Section 138 of the Negotiable Instruments Act to the accused/respondent no.1 company, through his learned advocate by registered post with A/D demanding payment of the aforesaid sum of Rs.35 lakhs within 15 days from the date of receipt of such no....
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.... the drawer bank is fulfilled. The learned Trial Court however, erroneously interpreted the instant statutory obligations, thereby causing grave miscarriage of justice. The accused persons had tried to prove that the cheque was the subject matter of a forgery case against the complainant being Jamuria Police Station case No.50 dated 14.05.2003 under Sections 406/420/468/469/471 of the Indian Penal Code. The accused i.e. appellant herein was discharged from the said case by the learned Judicial Magistrate, 2nd Court, Asansol on 10.08.2012 and no appeal was preferred by the accused persons/respondents against such order of acquittal, thereby strengthening the instant case of the appellant. It is submitted that Dilsher Singh Atwal is the signatory of the present cheque in his capacity as a partner in the accused firm named and styled as M/s. G.S. Atwal & Company. The learned trial court erroneously came to the conclusion that the signatory is not a partner and further that it is not a partnership firm. The plea has been taken by the accuseds/respondents that the cheque had not been issued by the appellant herein against legally enforceable debt or liability. During the examination....
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....nds on the facts and circumstances of each case. Such evidence must be sufficient, cogent and should prove beyond any reasonable doubt. Therefore a mere explanation is not enough to repel this statutory presumption of law. The Court also has to take into account Section 118 of the Negotiable Instruments Act which states that until contrary is proved, the Court shall make presumptions as to consideration, date, time of acceptance, transfer and that the holder of a negotiable Instruments is a holder in due course. That by virtue of Section 118 of the Negotiable Instruments Act the Court is obliged to presume that the promissory note is made by consideration until the contrary is proved and the initial burden lies on the accused to prove the non existence of such consideration. The said judgments of the Supreme Court have been relied upon. 4. Defence Case Md. Shahjahan Hossain, learned counsel for the respondent/accused persons no. 1 to 3 has also submitted by filing his written notes of argument that the instant appeal is not maintainable in the eye of law and fact as against the opposite parties no. 2 and 3 since they have got no connection with the company and its day to day aff....
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....eport as to the alleged tampering with the date on the cheque (Exhibit 1 and A), where the month (1) has been allegedly made into (4) to extend the time. Exhibit-1 shows that the cheque was issued by the accused firm /respondent and was signed by one of the partners in favour of the complainant. One defence pleaded is that the said partner being a sleeping partner, is thus not liable. Nothing is on record to substantiate the said statement. The Supreme Court in Mohd. Laiquiddin and Anr. Vs Kamala Devi Misra (Dead) by L.Rs & Ors., Civil Appeal Nos. 6933-6934 of 2002 with Smt. Kamala Devi Misra (Dead) by L.Rs & Ors. vs. Mohd. Laiquiddin Khan and Anr., Civil Appeal Nos. 4411-4412 of 2002, on January 05, 2010, held:- "38. In the case of Narayanappa v. Krishtappa, [(1966) 3 SCR 400], the issue was whether on relinquishment of rights by partners of an erstwhile partnership, there was a transfer of immovable property, which required to be registered to constitute a valid transfer. This Court observed: "No doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnersh....
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....tion of innocence of accused which prosecution is required to dislodge by proving its case against accused beyond reasonable doubt, Bir Singh v. Mukesh Kumar, (2019) 4 SSC 197. Burden of rebuttal of presumption. - The presumption mandated by Section 139, does indeed include the existence of a legally enforceable debt or liability. Bare denial of the passing of the consideration and existence of debt, is not enough to rebut the presumption. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complaint in a criminal trial. Rather, 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. Apart from adducing direct evidence to prove that the consideration did not exist, or that he had not incurred any debt or li....
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....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 provisions of this Act, be punished with imprisonment for 8 [a term which may be extended 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 giving a notice; i....
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....uide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof." 16. It is well settled that the proceedings under Section 138 of the Act are quasi-criminal in nature, and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under the Act. 17. Likewise, under Section 139 of the Act, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced by the accused which on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved. In Rohitbhai Jivanlal Patel vs. State of Gujarat and Another4 , this Court has examined the scope of Sections 138 and 139 of the Act, which reads as under:- "15. So far the question of existence of basic ingredients for drawing of presumption under Sections 118 and 139 of the NI Act is concerned, apparent it is that the appellant-accused could not deny his signatures on the cheques in question that had been drawn in favour ....
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....bt 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. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumption....