TaxTMI 
TaxTMI 
2024 (3) TMI 399
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....appellant/complainant. It was pleaded by the complainant that the accused had purchased building material from him and in order to liquidate the part payment on account of cost of the building material, the respondent had issued the aforesaid cheques in favour of the appellant/complainant. It seems that when these cheques were presented for encashment by the appellant/complainant with his banker, the same were returned unpaid on account of insufficiency of funds vide memo dated 31.05.2016. The appellant/complainant is stated to have served a legal notice dated 06.06.02016 upon the respondent/accused asking him to make the payment of the cheque amount to him, but the accused/respondent failed to do so, which ultimately resulted in filing of the complaint before the learned trial court. 03. Vide order dated 05.05.2016, the learned trial court issue the process against the respondent and on 05.10.2016, upon appearance of the accused, his plea under Section 242 of J&K Cr.P.C. was recorded. In his statement recorded under Section 242 of J&K Cr. P.C., the respondent/accused, while admitting issuance of the cheques as also his liability to the tune of Rs. 2,88,000/-, submitted that he ha....
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....ishonoured on account of insufficiency of funds and notice of demand was served upon the accused, a presumption under Sections 118 and 139 of the NI Act regarding existence of a legally enforceable liability arises in favour of the complainant. According to the appellant, the evidence produced by the respondent/accused before the trial court does not rebut the said presumption as the same is contradictory and un-reliable in nature. 07. I have heard learned counsel for the parties and perused the grounds of challenge, the impugned judgment and the record of the trial court. 08. There is no dispute to the fact that the cheques, which are subject matter of complaint filed by the appellant against the respondent, had been issued by the respondent in favour of the appellant. It is also an admitted case of the parties that the respondent used to purchase the building material from the appellant and in this regard a commercial transaction was going on between them. It is also not in dispute that the respondent had issued the cheques in question in favour of the appellant to discharge his liability towards him. The dishonour of the cheques on account of insufficiency of funds is also an ....
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....he 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 private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the ....
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....se with the appellant and make payment to him. The witnesses have stated that they paid an amount of Rs. 40,000/- to the appellant in the Police Station, whereafter the vehicle was allowed to proceed. They have also stated that thereafter they withdrew an amount of Rs. 2,10,000/- by operating the ATM card of accused on several occasions over a period of 5/6 days and they paid the said amount to the appellant/complainant. 14. The aforesaid statement of both the above named defence witnesses is corroborated in material particulars by the statement of DW-Daljit Singh, the then SHO, Chanderkote. He has clearly stated that he had intervened in the matter. Although, he has stated that amount of Rs. 40,000/- was not paid in his presence, yet he has gone on to state that the appellant/complainant conveyed to him that the Mates have paid an amount of Rs. 40,000/- to him. He has further stated that after a few days, he was conveyed by the Mates that they have paid an amount of Rs. 2.00 lacs to the appellant but he is not retuning the cheques. He has stated that the appellant came to the Police Station and when he enquired from him about this and asked him as why despite receiving the paymen....
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....to whether or not the learned Magistrate was legally justified in his approach of not recording the statement of the accused under Section 342 Cr. P.C. In this regard, we need to notice the procedure prescribed under the Code of Criminal procedure for trial of summons cases. Chapter-XX of the J&K Code of Criminal Procedure, which is applicable to the instant case, provides the procedure of the trial of summons cases by a Magistrate. Section 242 of the Cr.P.C, which falls in the aforesaid Chapter, mandates a Magistrate to state the particulars of the offence to the accused and he has to be asked if he has any cause to show why he should not be convicted. As per Section 243 of the Cr. P.C., if the accused admits that he has committed the offence, his admission has to be recorded, whereafter he has to be convicted. Section 243-A Cr.P.C relates to conviction, on the plea of guilty in absence of an accused in petty cases. As per Section 244 Cr.P.C, when no admission is made by the accused, the Magistrate has to hear the complainant, take all such evidence as may be produced in support of the prosecution, hear the accused and take all such evidence as he produces in his defence. Section ....
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....e, observed as under: "It has been contended that none of the sections prescribing the procedure to be followed in summons cases contain the words " before he is called on for his defence" whereas in the sections prescribing the procedure to be followed in the trial of warrant and Sessions cases those words are used, and therefore, it was not intended that it should be obligatory on the Court to question the accused in summons cases, as section 244 only required that the accused should be heard. I doubt whether that is a sound argument, as every accused person has a right to be called on for his defence, and when section 244 lays down that the Magistrate shall hear the accused, it certainly means that he should ask the accused what he has to say in his own defence against the charge which has been brought against him, and in explanation of the evidence which has been led to support the charge. It does not seem to me that there is very much difference between hearing the accused and questioning him generally to enable him to explain the circumstances appearing in the evidence against him; and if it had not been for the provisions of section 364, it would be perfectly correct if ....
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....o which provisions of sections 346 to 352 pertain. This would lead to many anomalies which could never have been the intention of the legislature. 25. For all the aforesaid reasons, the view taken by the learned trial Magistrate that there was no requirement of recording the statement of the accused under Section 342 Cr. P.C. is not in accordance with law. Thus, even in summons trial cases a criminal court is obliged to question the accused generally on the case after the witnesses of the prosecution have been examined. 26. It is a settled law that the incriminating circumstances, regarding which no explanation has been called from the accused, cannot be used against him while deciding veracity of the accusation against him. The evidence which has not been put to an accused has to be eschewed from consideration. Therefore, the evidence, as regards service of demand notice upon the respondent/accused having not been put to him, cannot be taken into consideration while deciding the veracity of the accusations against him. Had this incriminating circumstance been put to the accused/respondent, he may have come up with a suitable response to the same but because it has not been put t....