TaxTMI 
TaxTMI 
2021 (3) TMI 1461
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....y for his business work and for purchasing a house. He assured the complainant to return the amount as early as possible. Due to the relationship, the complainant deposited time to time Rs. 19,45,000.00/- through NEFT/RTGS in the account of the accused's proprietorship firm "Purohit Agency" and Rs. 55,000.00/- through cash payment on credit. In the said deposited amount, a sum of Rs. 1,90,000/- was deposited by the complainant through Gopal Singh (PW-2). The complainant gave a sum of total Rs. 20,00,000.00/- to the respondent on credit. The complainant demanded his money. Then, the accused issued a cheque No.797972 dated 16.10.2017 payable on Indian Bank, Almora for the sum of Rs. 20,00,000.00/- in regard to the credit amount given to the accused. The said cheque was deposited by the complainant in his account. The said cheque was dishonoured by the bank of the accused with note of "exceed agreement". The complainant acknowledged the dishonoured cheque on 02.11.2017 and a legal notice was sent to the accused on 09.11.2017, which was served upon the accused on 17.11.2017. A reply was given by the accused on false and misconceived facts. Since no payment was forthcoming pursuant to t....
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....thout the firm being arraigned as an accused, the accused would not be liable for prosecution under Section 138 of the Act, 1881. 12. Challenging the judgment of acquittal, the complainant has filed this criminal appeal after obtaining special leave. 13. Heard learned counsel for both the parties and perused the record. 14. Mr. Sanjay Kumar, learned counsel for the appellant submitted that the "Purohit Agency" was being run in the proprietorship of the respondent and the Cheque-in- question was issued by the respondent putting his signature with a seal of the "Purohit Agency" as a proprietor; the said cheque was given to the appellant to present in the bank; after acknowledged the dishonoured cheque on 02.11.2017, a demand notice was sent to the respondent on 09.11.2017, which was served upon the respondent on 17.11.2017; the reply was given by the respondent on false and misconceived facts; the amount of the cheque was not paid; the learned trial court committed wrong in holding that there was no legal debt or liability; the settled proposition of law is that no one should be left remediless; the learned trial court acquitted the respondent on the technical ground that wi....
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....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 in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." 17. Section 138 of the Act, 1881 defines the ingredients of the offence. The following ingredients are required to be satisfied for making out a case under Section 138 of the Act, 1881: (i) that a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount o....
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....rument were made in the order in which they appear thereon; (f) as to stamp -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." 20. Next provision, which needs to be noticed is Section 139 of the Act, 1881. Section 139 of the Act, 1881 provides for drawing the presumption in favour of holder. Section 139 is to the following effect; "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." 21. In Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Cour....
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....e existence of a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means "taking as true without examination or proof". 16. Section 4 of the Evidence Act inter alia defines the words "may presume" and "shall presume" as follows: "4. 'May presume'.-Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it: 'Shall presume'.-Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved: In the former case, the court has an option to raise the presumption or not, but in the latter case, the court must necessarily raise the presumption. If in a case the court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is dispro....
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....the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce 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. Apart from adduci....
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....stion was not given in respect of any debt or liability, however, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence, even the evidence adduced on behalf of the complainant can be relied upon. 24. In Rangappa vs. Sri Mohan (Supra), the Hon'ble Supreme Court has held that in view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. It is for the accused to rebut the said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by the complainant. 25. The respondent-accused denied his signature on the cheque. The accused has not led any evidence in support of this plea. The accused even did not come in the witness box to support his case. In the reply to the notice of the appellant-complainant, it was not mentioned that there was no transaction between the complainant and the accused and all the transactions of the complainant were with his brother Mohan Prasad Purohit. There was no case in the reply of the accused that the complainant had taken seven cheques from the shop of his brother and the cheque-in- question wa....
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....ave not been challenged by the complainant in the cross-examination of these two witnesses. The learned counsel for the respondent further submitted that the complainant Ramesh Nagarkoti (PW1) has admitted in his cross-examination that the cheque-in- question belonged to the firm and the said cheque was given to him as a firm. The complainant further stated in his cross- examination that he did not know about the partners of the firm. The learned counsel for the respondent contended that in absence of partnership firm being arraigned as an accused, prosecution of a partner of the firm for the cheque bounce under Section 138 of the Act, 1881 is not maintainable. 29. In reply, the learned counsel for the appellant submitted that the settled proposition of law is that no one should be left remediless but the decision of the learned trial court acquitting the accused on the technical ground that in absence of the firm being arraigned as an accused, the accused would not be liable, is not sustainable in the eyes of law because the complainant has been left remediless. The learned counsel for the appellant further submitted that the complainant should have been directed to amend his c....
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....g anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any Director, Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly." 22. On a reading of the said provision, it is plain as day that if a person who commits the offence under Section 138 of the Act is a company, the company as well as every person in charge of and responsible to the company for the conduct of business of the company at the time of commission of offence is deemed to be guilty of the offence. The first proviso carves out under what circumstances the criminal liability would not be fastened. Sub-section (2) enlarges the criminal liability by incorporating the concepts of connivance, negligence and consent that engulfs many categories of officers. It is worth noting that in both the provisions, there is a "deemed" concept of criminal liability. ....