District
: South 24 Parganas.
In the Court of the Learned Fast Track
3rd Court of Additional District Session Judge, at Alipore, South 24
Parganas.
Criminal
Appeal no. 192 of 2018.
In
the matter of :
Shri
Sanjeev Kumar Singh,
_______Complainant.
-
Versus
–
-
Smt. Indira Pal,
_________Accused.
F I R I S H T I
{ Enclosure }
Judicial References
On Legal Liability :
1.
The
accused had discharged his burden that the subject cheques were completed by
the complainant for a non existence debt and therefore the accused could not be
penalized in case such cheque were dishonoured by him.
{
Pyramind Finance Limited – Versus – Ram Krishna Iyer – AIR 2007 ( NOC ) 1092 (
Bom ) }
2.
It
is not obligatory on the accused to separately adduced evidence or to enter the
witness box if he can successfully gather material from the evidence of the
complainant which would sufficiently disprove the presumptive facts,
particularly, in relation to the pre-existence of legal liability or the debt
for discharge of which the cheque was issued.
{
Rajendraprasad Gangabishen Porwal – versus Santoshkumar Parasmal Saklecha –
2008 Cri. L.J. 2955 ( Bom ) }
3.
The
maxim is therefore, intimately connected with the more comprehensive rule of
our law, ex turpi causa non oritur action, on account of which no court will
allow itself to be made the instrument of enforcing obligations alleged to
arise out of a contract or transaction which is illegal.
{
Virender Singh – Versus – Laxmi Narain – AIR 2007 ( NOC ) 2039; 2007 Cri. L.J. 2262 }
4.
There
must be legally enforceable debt, otherwise, no cheque bounce case should be
maintainable.“A statutory presumption has an evidentiary value. The question as
to whether the presumption stood rebutted or not, must, therefore, be
determined keeping in view the other evidences on record. For the said purpose,
stepping into the witness box by the appellant is not imperative......."
{
Muthukumaran – Versus Periyasamy – Madurai Bench of Madras High Court – CRL.
R.C. ( MD ) No. 764 of 2010 }
5.
Thus,
bearing in mind the relevant provisions of the N.I. Act, it must be emphasized
that only legally enforceable debt or liability can be enforced in the
proceedings under section 138 of the said Act, because the explanation to the
penal provision is abundantly clear that the dishonoured cheque must have been
received by the complainant against a legally enforceable debt or liability.
{
Smt. Nanda – Versus – Nandkishor – High Court Judicature at Bombasy – Bench at
Nagpur – Criminal Apeeal no. 467 / 2009 }
On
presumption :
6.
Ss. 138 & 139 - Dishonour of cheque -
Presumption against accused - Rebuttal of - Mode of - Necessary considerations
by court - Stepping into the witness box by the accused, held, not imperative
for said rebuttal - Question whether the presumption stood rebutted or not must
be determined keeping in view the other evidence on record - Where chances of
false implication cannot be ruled out, the background fact and the conduct of
the parties together with their legal requirements are required to be taken
into consideration - Courts must be on guard to see that merely on the
application of presumption as contemplated under S. 139, the same may not lead
to injustice or mistaken conviction – Other principles of legal jurisprudence,
namely, presumption of innocence as a human right and the doctrine of reverse
burden introduced by S. 139 should be delicately balanced - Such balancing acts
would largely depend upon the factual matrix of each case, the materials
brought on record and having regard to legal principles governing the same -
Complaint filed under NI Act alleging that the complainant advanced a sum of Rs
1.5 lakhs to the appellant and the latter on his own went to the house of the
complainant to return the loan by an account payee cheque which got dishonoured
when presented - Plea of appellant that his power-of-attorney holder (with whom
appellant was having differences) misutilised his signed blank cheques through
his relative, the complainant - Raising presumption under S. 139, NI Act,
complainant's case primarily accepted for the reason that the appellant did not
step into the witness box - Trial court not drawing any inference as to the
probability of the complainant advancing a sum of Rs 1.5 lakhs on mere asking
and that too without keeping any documentary proof or requiring presence of any
witness - Purported story that the appellant would himself come forward to
return the amount by a cheque knowing fully well that he did not have any
sufficient funds was difficult to believe - Further, complainant did not say
that he had friendship with appellant - No indication as to any business
transactions between them - Complainant failed to produce any books of accounts
or any other proof to show that he got so much money from Bank - Courts below
failed to notice that ordinarily in terms of S. 269-SS, Income Tax Act, any
advance taken by way of loan of more than Rs 20,000 had to be made by an
account payee cheque only – Considering the peculiar facts and circumstances of
the case, held, courts below approached the matter on wrong application of the
legal principles to the fact situation of the case - Hence, conviction and
sentence set aside,
{ Krishna Janardhan Bhat – Versus – Dattatraya G.
Hegde - (2008) 4 SCC 54 }
7.
Ss. 139 and 138 - Presumption that cheque was
issued in discharge of debt or liability - Presumption how to be displaced -
Declaration made by the complainant himself to the Sales Tax Department that no
sale had taken place - Accepted as a valid proof that cheques were not issued
by accused in discharge of any debt or liability to complainant - Accused
therefore by producing this evidence, held to have displaced the presumption
under S. 139 and therefore offence under S. 138 not proved against accused, S.
118 - Presumptions under - Purpose of, held, is to facilitate negotiability of
an instrument - It is for this purpose S. 118 has departed from general law of
contract wherein existence of consideration has to be proved in the first
instance - The Act also creates special rules of evidence for negotiable
instruments,
{ Kumar Exports – Versus – Sharma Carpets - (2009)
2 SCC 513 }
8.
Negotiable Instrument Act, 1881, Section 138 and 139 – Dishonour
of Cheque – Presumption – Accused has denied the transaction with the
complainant – Instrument was given in blank form signature as security for loan
– it demands strict scrutiny – A court is expected to examine whether the
transaction covered by the cheque was genuine and boafide – where the materials
produced disclosed suspicious, circumstances surrounding the treansaction,
unless satisfactory explanation removing such suspicion is tendered by the
holder of the instrument no conviction is legally permissible solely banking
upon the statutory presumptions – Acquital upheld – Law explained ( para 8 )
{ Bhaskaran
Nair – Versus – Mohanan, 2009(4) AICLR ( Ker ) 447 }
9.
The Act raises two presumptions : firstly, in regard to the
passing of consideration as contained in Section 118(a) therein, and Secondly,
a presumption that the holder of cheque receiving the same of the nature
referred to in Section 139 discharged in whole or in part any debt or other
liability. Presumptions both under Section 118 (a) and 139 are rebuttable in
nature. Having regard to the definition of terms “proved” and “disproved” as
contained in Section 3 of the Evidence Act as also the nature of the said
burden upon the prosecution vis a vis an accused it is not necessary that the
accused must step into the witness box to discharge the burden of proof in
terms of the aforementioned provision.
{ K.
Prakashan – Versus – P.K. Surendran, (2008) 1 C Cr LR ( SC ) 384 }
The Golden thread of administration of justice in
criminal case :
10.
The burden of proof in criminal law is beyond all reasonable doubt
– the prosecution has to prove the guilt of the accoused beyond all reasonable
doubt and it is also rule of justice in criminal law that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of the
accused and the other towards his innocence, the view which is favourable to
the accused should be adopted.
{ Umakant
& Anr – Versus – State of Chhatisgarh, 2014 (40 Crimes 93 ( SC ) }
11.
In Bhagwan Singh & Others v. State of M.P. (2002) 4 SCC 85,
the Court repeated one of the fundamental principles of criminal jurisprudence
that if two views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to his innocence, the view
which is favourable to the accused should be adopted. The Court observed as under:-
"7. The golden thread which runs through the web of administration of
justice in criminal case is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the accused should be adopted.
Such is not a jurisdiction limitation on the appellate court but a Judge made
guidelines for circumspection. The paramount consideration of the court is to
ensure that miscarriage of justice is avoided."
{ State of U.P. Versus Banne @ Baijnath & Ors, - Supreme Court
of India – Crminal Appeal No. 1100 of 2001, decided on 10 February – 2009 }
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