TaxTMI 
TaxTMI 
2023 (8) TMI 461
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....cheque no. 366919 dated 14.12.2008 drawn on Allahabad Bank, Sodepur branch, District North 24 Parganas for a sum of Rs.2,60,000/- (Two Lakhs Sixty Thousand Only) on promise that the same would be honoured on its presentation for payment. The petitioner presented the aforesaid cheque for payment with his banker Indusind Bank Ltd., 3A, Upper Wood Street, Kolkata-700017 on 08.06.2009 i.e. within the validity period of its presentation. The aforesaid cheque was dishonoured with the remarks "Insufficient Fund" and as such the said cheque was returned to your petitioner with Banker's Return Memo dated 09.06.2009 which was received by the petitioner on 09.06.2009. The petitioner through his advocate Mr. Jamini Ranjan Ghosh sent a notice of demand dated 12.06.2009 u/s 138(b) of the negotiable Instruments Act, 1881 there by demanding payment of cheque amount within 15 days from the date of receipt of notice. The aforesaid demand notice was sent through Registered Post with A/D on 12.06.2009. The A/D card has been proved and marked exhibit 5 by the learned Magistrate. On completion of trial, the learned Magistrate convicted the accused/opposite party no.1 as above. On appeal by the convic....
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....cheque stating that the said cheque was presented without any liability on his part. The Ld. Judge failed to consider the statement of the accused in his cross examination dated 29/11/2016 which read as "In spite of receiving the notice I have not written any reply letter to the complainant regarding non-supply or the issuance of security cheque towards the complainant". That the promissory note was executed on 11.11.2008 but the cheque was issued on 14.12.2008 and as such in no way it can be said that the said cheque was issued as security on the basis of promissory note. That the impugned order/Judgement passed by the Ld. Sessions Court is otherwise bad both in facts and law and is liable to be set aside. Mr. M. Nandi, learned counsel for the opposite party No.1, submits that the learned session Judge rightly set aside the judgement of the learned Magistrate which was not in accordance with law. The findings of the learned session Judge is in accordance with law and on proper appreciation of evidence and as such the Revision is liable to be dismissed. Heard the counsels at length. Perused the materials as record including the judgement under revision. Considered. Section 13....
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....s that the respondent No. 1 completely failed to discharge his initial burden of proof by producing minimum documents to rope in the revisionist for liability. The so called promissory note (exhibit-1) can not be relied upon as the witness of such execution is the wife of respondent No. 1 and has been examined to prove it nor there is the writer who wrote it has been examined, so exhibit-1 can not be relied upon as it has not been admitted into evidence in accordance with the requirement of proving a document under the law of evidence Act." The said findings of the learned session Judge is clearly bad in law. The Session Judge has totally misinterpreted the provision under Section 139 N.I Act which goes like this:- Section 139 of Negotiable instruments Act lays down:- "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. Nature and Scope.- This Section raises presumption of law that cheque duly drawn was in discharge of debt or liability. However, presumption is rebuttable and....
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.... onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque. 22. In Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16, this Court held that both Section 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in State of Madras vs. Vaidyanatha Iyer AIR 1958 SC 61, this Court held that it was obligatory on the Court to raise this presumption. 23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution 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 and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the....
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.... accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability. 28. In R. Vijayan vs. Baby and Another (2012) 1 SCC 260 this Court observed that the object of Chapter XVII of the Negotiable Instruments Act is both punitive as also compensatory and restitutive. It provides a single forum and single proceeding for enforcement of criminal liability by reason of dishonour of cheque and for enforcement of the civil liability for realization of the cheque amount, thereby obviating the need for the creditor to move two different fora for relief. This Court expressed its anguish that some Magistrates went by the traditional view, that the criminal proceedings were for imposing punishment and did not exercise discretion to direct payment of compensation, causing considerable difficulty to the complainant, as invariably the limitation for filing civil cases would expire by the time the criminal case was decided. 29. In R. Vijayan vs. Baby and another (supra....
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..... Sudhish Pai from his book "Constitutional Supremacy - A Revisit":- "Judgments and observations in judgments are not to be read as Euclid's theorems or as provisions of statute. Judicial utterances/pronouncements are in the setting of the facts of a particular case. To interpret words and provisions of a statute it may become necessary for judges to embark upon lengthy discussions, but such discussion is meant to explain not define, Judges interpret statutes, their words are not to be interpreted as statutes. Thus, precedents are not to be read as statutes." 36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he a....
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....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 of indorsements -that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps -that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course -that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. xx xx xx 139. Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the c....
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....eth of the established legal position as discussed above, and amounts to a patent error of law. xx xx xx 17. Even if we take the arguments raised by theappellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite "Bir Singh v. Mukesh Kumar", where this court held that: "Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt." 18. Considering the fact that there has been anadmitted business relationship between the parties, we are of the opinion that the defence raised by the appellants does not inspire confidence or meet the standard of 'preponderance of probability'. In the absence of any other relevant material, it appears to us that the High Court did not err in discarding the appellants' defence and upholding the onus imposed upon them in terms of Section 118 and Section 139 of the Negotiable Instruments Act." As su....