Criminal Appeal No. 136 of 2017 · The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 116 of 2018 --------- Kusheshwar Prasad @ Kusheshwar Thakur ... -Versus- Petitioner 1. The State of Jharkhand 2. Satendra Kumar --------- … Opposite Parties CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD --------- For the Petitioner For the State For the O.P. No.2 : Mr. Anish Kr. Mishra , Advocate : Mrs. Mahua Palit, A.P.P. : Mr. Jitendra N. Upadhyay, Advocate --------- JUDGMENT Order No. 11/ Dated 18.12.2023 This Criminal Revision application has been filed on behalf of the petitioner by challenging the judgment dated 04.01.2018 passed in Criminal Appeal No. 136 of 2017 by the learned Sessions Judge, East Singhbhum at Jamshedpur by which the Criminal Appeal preferred by the petitioner has been dismissed, thereby affirming the judgment of conviction and order of sentence dated 12.09.2019 passed by Mr. Arbind Kachhap, Judicial Magistrate, 1st Class, Jamshedpur in connection with C/1 Case No. 3562 of 2014 bearing T.R. No. 173 of 2017 , by which the petitioner has been convicted for the offence under section 138 of N.I. Act and has been sentenced to undergo S.I. for a period of one(01) year and to pay the fine of Rs. 5,00,000/- as compensation amount within one month. 2. The complainant’s case, in brief, is that the petitioner had taken a friendly loan of Rs. 3.00 lakhs from the complainant in the year, 2013 at the time of marriage ceremony of his son which was assured to be returned within one year but, when the said amount was not returned despite lapse of one year then the complainant called upon the petitioner to repay the money for 2 which the petitioner issued a post-dated cheque bearing no.000039 dated 21.05.2014. It has been alleged that when the said cheque was presented then the same was dishonoured by the Bank with a cheque return memo showing "insufficient fund". Thereafter the demand notice through Advocate was sent on 01.09.2014 through registered post with acknowledgement, but despite the receipt of the said demand notice, the petitioner did not pay the money and hence, the complaint case was filed by the complainant . 3. The case of the accused -petitioner is that that prior to presentation of the alleged cheque and its getting dishonoured, a notice was sent on behalf of the petitioner to the father of the complainant wherein it was stated that the five cheques were taken as security from the petitioner and the petitioner was apprehending the foul play by misuse of those cheques. It is further stated that his signature on blank paper was also obtained by the father of the complainant and the complainant was contemplating to misuse these documents. 4. Heard leaned counsel for the petitioner, and leaned
Legal Reasoning
“Para-13:- This Court in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35] had occasion to consider Section 118(a) of the Act. This Court held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable and defendant can prove the non-existence of a consideration by raising a probable defence. In para 12, the following has been laid down: (SCC pp. 50-51) “12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a 12 consideration. Such a presumption is rebuttable. The defendant can prove the non- existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was -24- illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon his failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist.” Para-14:- S.B. Sinha, J. in M.S. Narayana Menon v. State of Kerala [M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 : (2006) 3 SCC (Cri) 30] had considered Sections 118(a), 138 and 139 of the Act, 1881. It was held that presumptions both under Sections 118(a) and 139 are rebuttable in nature. Explaining the expressions “may presume” and “shall presume” referring to an earlier judgment, the following was held in para 28: (SCC p. 49) “28. What would be the effect of the expressions “may presume”, “shall presume” and “conclusive proof” has been considered by this Court in Union of India v. Pramod Gupta [Union of India v. Pramod Gupta, (2005) 12 SCC 1] , in the following terms: (SCC pp. 30-31, para 52) ‘52. … It is true that the legislature used two different phraseologies “shall be presumed” and “may be presumed” in Section 42 of the Punjab Land Revenue Act and furthermore although provided for the mode and manner of rebuttal of such presumption as regards the right to mines and minerals said to be vested in the Government vis-à-vis the absence thereof in relation to the lands presumed to be retained by the landowners but the same would not mean that the words “shall presume” would be conclusive. The meaning of the expressions “may presume” and “shall presume” have been explained in Section 4 of the Evidence Act, 1872, from a 13 perusal whereof it would be evident that whenever it is directed that the court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression “shall presume” cannot be held to be synonymous with “conclusive proof”.” Para-16:- This Court in M.S. Narayana Menon case [M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 : (2006) 3 SCC (Cri) 30] held -25- that what is needed is to raise a probable defence, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon. Dealing with standard of proof, the following was observed in para 32: (SCC p. 51) “32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.” Para-17:- In Krishna Janardhan Bhat v. Dattatraya G. Hegde [Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] , this Court held that an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. The following was laid down in para 32: (SCC p. 62) “32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.” Para-22:- Elaborating further, this Court in Rangappa case [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendantaccused and the defendant-accused cannot be expected to discharge an unduly high standard of proof. In paras 27 and 28, the following was laid down: (Rangappa case [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] , SCC pp. 453-54) “27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the 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 14 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 defendant-accused cannot be expected to discharge an unduly high standard of proof. 28. 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 -26- 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 materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” Para-25:- We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: Para-25.5:- It is not necessary for the accused to come in the witness box to support his defence. Para-28:- There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in examination-in-chief the complainant has not mentioned as to on which date, the loan of Rs 6 lakhs was given to the accused. It was during cross-examination, he gave the date as November 2011. Under Section 118(b), a presumption shall be made as to date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27-2- 2012, there is not even a suggestion by the complainant that a post-dated cheque was given to him in November 2011 bearing the date 27-2-2012. Giving of a cheque on 27- 2-2012, which was deposited on 1-3-2012 is not compatible with the case of the complainant when we read the complaint submitted by the complainant especially para 1 of the complaint, which is extracted as below: “1. The accused is a very good friend of the complainant. The accused requested the complainant a hand loan to meet out urgent and family necessary a sum of Rs 6,00,000 (Rupees Six lakhs) and on account of long standing friendship and knowing the difficulties, which is being faced by the accused the complainant agreed to lent hand loan to meet out the financial difficulties of the accused and accordingly the complainant lent hand loan Rs 6,00,000 (Rupees Six lakhs) dated 27-2-2012 in favour of the complainant stating that on its presentation it will be honoured. But to the surprise of the complainant on presentation of the same for collection through his bank the cheque was returned by the bank with an endorsement “Funds Insufficient” on 1-3-2012.” Para-29:- Thus, there is a contradiction in what was initially stated by the 15 complainant in the complaint and in his examination-in-chief regarding date on which loan was given on one side and what was said in cross-examination in other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply to the notice denying the execution of cheque or -27- legal liability. Even before the trial court, appellant-accused has not denied his signature on the cheque.” 33. It has been held in 2023 SCC Online SC 48 passed in Criminal Appeal No. 1978 of 2013, Rajaram Through L.Rs. Vs. Maruthachalam (Since Deceased) Through L.Rs. at para 21,24,26,27,28,29 ,30,39,41 and 46 as follows:- “Para 21:- Ms. Neha Sharma submits that the High Court has erroneously reversed the well-reasoned judgments of the learned Trial Court. She submitted that blank cheques issued in the year 1992 by way of security for chit-funds were misused by the Respondents in the year 1999. She further submitted that in the year 1999, when the cheques were sent for encashment, the Appellant was no longer the proprietor of M/s Brinda Engineering and the bank account on which the said cheques were drawn was not operated after 1992, and had already closed in 1997 due to non-operation. She further submitted that even before the account was closed down, the wife of the Appellant became the sole proprietor of the enterprise, and thus, the appellant could not have signed the said cheques in the capacity of the proprietor of M/s Brinda Engineering.” “Para 24:- The learned counsel submitted that there arose no occasion for the Appellant- Raja Ram to issue a blank cheque in the year 1992 for a chit to be subscribed much later in the year 1995. It is further submitted that even if certain amounts are not accounted for in the Income Tax Returns, this is a matter concerning only the defaulter and Revenue Authority. Thus, a borrower cannot be allowed to take advantage of the same solely on the ground that such an amount does not reflect in the Income Tax Returns. The learned counsel relied on the judgments of this Court in the cases of Bir Singh v. Mukesh Kumar , Rohitbhai Jivanlal Patel v. State of Gujarat , Kalamani Tex v. P. Balasubramanian to buttress his submissions.” “Para 26:- This Court in the case of Baslingappa v. Mudibasappa (supra) has summarized the principles on Sections 118(a) and 139 of the N.I. Act. It will be relevant to reproduce the same. “25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the 16 presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence.” “Para 27:-. It can thus be seen that this Court has held that once the execution of cheque is admitted, Section 139 of the N.I. Act mandates a presumption that the cheque was for the discharge of any debt or other liability. It has however been held that the presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. It has further been held that to rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. It has been held that inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. “Para 28:-. In the said case, i.e. Baslingappa v. Mudibasappa (supra), the learned Trial Court, after considering the evidence and material on record, held that the accused had raised a probable defence regarding the financial capacity of the complainant. The accused was, therefore, acquitted. Aggrieved thereby, the complainant preferred an appeal before the High Court. The High Court reversed the same and convicted the accused. This Court found that unless the High Court came to a finding that the finding of the learned Trial Court regarding financial capacity of the complainant was perverse, it was not permissible for the High Court to interfere with the same.” Para 29:- In the present case, the accused appellant had examined Mr. Sarsaiyyn, Income Tax Officer, Ward No. 18, Circle (II)(5), who produced certified copies of the Income Tax Returns of the complainant for the financial year 1995-1996, 1996-1997, 1997- 1998 and 1998-1999. The certified copies of the Income Tax Returns established that the complainant had not declared that he had lent Rs. 3 lakh to the accused. It further established that the agricultural income also was not declared in the Income Tax Returns. Para 30:- The learned Trial Court further found that from the income which was shown in the Income Tax Return, which was duly exhibited, it was clear that the complainant(s) did not have financial capacity to lend money as alleged. Para 39:- In the present case, we are of the considered opinion that the defence raised by the appellant satisfies the standard of “preponderance of probability”. Para 41:- In that view of the matter, we are further of the considered view that the High Court was not justified in reversing the order of acquittal of the appellant.” 40. It has 17 been held in the case of Rajaram S/O Sriramulu Naidu (Since Deceased) through L.RS. Versus Maruthachalam (Since Deceased through L. RS. Reported in 2023 LiveLaw (SC) 46 at para-20 as follows:- “Para-20:- After analyzing all these pieces of evidence, the learned Trial Court found that the Income Tax Returns of the complainant did not disclose that he lent amount to the accused, and that the declared income was not sufficient to give loan of Rs.3 lakh. Therefore, the case of the complainant that he had given a loan to the accused from his agricultural income was found to be unbelievable by the -29- learned Trial Court. The learned Trial Court found that it was highly doubtful as to whether the complainant had lent an amount of Rs.3 lakh to the accused. The learned Trial Court also found that the complaint had failed to produce the promissory note alleged to have been executed by the accused on 25th October 1998. After taking into consideration the defence witnesses and the attending circumstances, the learned Trial Court found that the defence was a possible defence and as such, the accused was entitled to benefit of doubt. The standard of proof for rebutting the presumption is that of preponderance of probabilities. Applying this principle, the learned Trial Court had found that the accused had rebutted the presumption on the basis of the evidence of the defence witnesses and attending circumstances.”
Arguments
counsel for the State and the learned Counsel for the O.P. No. 2, 5. Learned counsel for the petitioner has submitted that the impugned judgements and order passed by the learned Court below are illegal and not sustainable in the eye of law. It is submitted that the learned Sessions Judge has wrongly dismissed the Criminal Appeal filed on behalf of the petitioner and has wrongly affirmed the judgment of conviction and sentence passed by the learned Court below. It is submitted that a false plea is shown for giving friendly loan of Rs.3,00,000/- to petitioner by the O.P. No. 2 in the complaint case. It is submitted that as a matter of fact the petitioner has sent notice to the father of the complainant informing him that five (05) cheques were taken as securities from the petitioner by the O.P. No. 2 and signature of the petitioner was 3 obtained also by the father of the complainant and as such the petitioner was apprehending foul play on the part of the father of the complainant –O.P. No. 2 and hence he had sent the legal notice dated 01.08.2013 to the father of the complainant-O.P. No. 2. It is submitted that complainant had examined himself only as a witness i.e. C.W. 1 and no other witnesses were examined. It is submitted that O.P. No. 2 has failed to prove legal debt against the petitioner and the petitioner had taken loan only of Rs. 60,000/- from the father of the complainant, but the father of the complainant got five (05) blank cheques signed from the petitioner which were given as security at the time of taking loan of Rs.60, 000/-. It is submitted that the petitioner had no friendly relationship with the complainant and in fact, no transaction took place between them and also stated that he gave five cheques to one Mundrika Yadav i.e. father of the complainant bearing cheque no. 000036, 000037, 000038, 000039 and 000040 respectively however for cheque No. 000039 only, the complaint case was filed by the complainant and further stated that for the purpose of marriage of his daughter, the petitioner had asked for Rs.1,60,000/- from Mundrika Yadav but, he gave only Rs.60,000/- and had taken 5 (five) blank cheques and also took signature on three (03) Agreement papers. Hence the impugned judgments and order passed by the learned Courts below may be set-aside and this Criminal Revision Application may be allowed. 6. On the other hand, learned A.P.P. has submitted that impugned judgments and order passed by the learned Court below are fit and proper and no interference is required. It is submitted that the learned Trial Court below has passed well-reasoned judgment and order and learned Appellate Court below has also affirmed the judgment of conviction and sentence passed by the learned Trial Court and as such there is no illegality in the impugned judgments and order passed by the learned Courts below 4 and as such this Criminal Revision may be dismissed. 7. Learned counsel for the O.P. No. 2 has submitted that this Criminal Revision Application is devoid of merit. It is submitted that the petitioner had taken friendly loan of Rs. 3,00,000/- and has issued the cheque of Rs. 3,00,000/- . However, when the said cheque was presented then it was dishonoured due to “insufficient fund”. It is submitted that the documents were marked as Exhibit -1, Exhibit-2, Exhibit-3, Exhibit-4, Exhibit-5, Exhibit-6 and Exhibit-7 respectively and which fully support of the case of the complainant -O.P. No. 2 . It is submitted that the complainant has been examined as C.W.1 and he also fully supported his case for giving Rs. 3,00,000/- as friendly loan. It is submitted that the petitioner has failed to prove loss of cheques in question before the learned Court below. It is submitted that the petitioner has falsely denied the liability and set-up his wife for filing an informatory petition vide Exhibit B to the effect that her husband had given five (05) cheques to the father of the O.P. No. 2. It is submitted that the father of the O.P. No. 2 had proved legal debt against the petitioner and as such there is no illegality in the impugned judgments and order passed by the learned Courts below. It is submitted that the petitioner is well aware of the fact for taking loan of Rs. 3,00,000/- and hence there is no illegality in the impugned judgments and order passed by the learned Courts below and hence this Criminal Revision may be dismissed. 8. Perused the Lower Court Records and considered the submissions of both the sides. 9. It transpires that the above case i.e. this Criminal Revision was filed on 04.02.2018 and therefore the petitioner was granted bail by the Co-ordinate Bench of this Court on 09.02.2018. 5 10. It transpires that the matter was referred even to “Meditation” before the JHALSA vide order dated 24.08.2022 and learned Member Secretary, JHALSA was directed to appoint a Mediator to amicably settle the dispute between both the sides. However the mediation before JHALSA reveals that the mediation between the parties has failed and even on 21.11.2022 learned counsel for both the sides have submitted that the compromise is not possible in the case and as such the case is being heard on its own merit. 11. It transpires that the complaint case was filed on 07.10.2014 on behalf of the O.P. No. 2 and after examining the complainant –O.P.2 on solemn affirmation and, the learned Court below took cognizance against the petitioner for the offence under Section 138 of Negotiable Instrument Act and summon was issued upon the petitioner vide order dated 01.12.2014 passed by the learned Court below and petitioner had appeared and was granted bail on 24.03. 2015 by the learned Court below. 12. The complainant is support his case has got examined himself as C.W. 1 who is the complainant Satendra Kumar. 13. The following documents were marked as Exhibit on behalf of the complainant which were as follows:- (i) Exhibit -1 is Money receipt dated 23.05.2013 ( marked with objection) , (ii) Exhibit-2 is Original cheque bearing No. 000039 dated 21.05.2014 for Rs. 3,00,000/-, (iii) Exhibit-3 is Cheque deposit slip dated 06.08.2014, (iv) Exhibit-4 is Cheque return memo dated 06.08.2014, (v) Exhibit-5 is Copy of legal notice dated 01.09.2014, (vi) Exhibit-6 is Postal receipts dated 01.09.2014 , (vii) Exhibit-7 is Reply of legal notice dated 08.09.2014 and 6 (viii) Exhibit 8 is Complaint Petition. 14. Thereafter the petitioner was examined under section 313 Cr.P.C. by the learned Court below 16.03.2016 and to which he denied the circumstances put forth before him . 15. The petitioner ,in support of his case , has also examined one witness as D.W. 1 . D.W. 1 is Kusheshwar Prasad @ Kusheswar Thakur i.e. the petitioner, himself. 16. The following documents had been marked as the Exhibits on behalf of the petitioner which were as follows:-: (i) Exhibit A is the legal notice dated 01.08.2013 send by the petitioner to Mundrika Yadav i.e. the father of the O.P. No. 2, (ii) Exhibit A/1 is postal receipt dated 01.08.2013 and (iii) Exhibit B is true copy of an informatory petition filed by the wife of the petitioner. 17. Thereafter the learned Court below has convicted the petitioner and has passed the impugned judgment and sentence as discussed above and which has been affirmed by the learned Appellate Court. 18. Hence, the appreciation of evidence of the witnesses is necessary. 19. It transpires that complaint was filed on 07.10.2014 against the petitioner by the O.P. No. 2 by stating therein that the petitioner had taken friendly loan of Rs. 3,00,000/- from the O.P. No. 2 on 23.05.2013 and promised to the return the said amount within one year and thereafter on the request of the amount in question by the O.P. No. 2 , the petitioner is said to have issued post-dated cheque of Rs. 3,00,000/- on 21.05.2014. However, when the said cheque was presented on 06.08.2014, then it was dishonoured by the Bank due to insufficient funds . Thereafter on 01.09.2014 the O.P. No. 2 had send legal notice to the petitioner but 7 the amount in question was not returned and hence complaint case was filed. 20. So far the evidence of the complainant is concerned, C.W. 1 is complainant and he has supported his case during his examination -in -chief which, is filed on an affidavit, and he has stated the facts of the complaint petition. The complainant had proved Exhibit 1 to Exhibit 8 respectively during his evidence and he stated that he is not aware as to where his younger brother Saravan was living and he shown ignorance about the business of his father and he has shown ignorance that his brother has also filed the case upon the petitioner for dishonour of cheque of Rs. 3,00,000/- . He further stated that he had kept Rs, 3,00,000/- in cash in the house which was handed over to the O.P. No. 2 . He had denied the suggestion that the father of the O.P. No. 2 had obtained five (05) blank cheques which were signed by the petitioner on 03.05.2013 at the time of giving loan of Rs, 60,000/- . 21. Thus from the evidence of C.W. 1, it is the evident that although he is running a Khatal and selling milk and the petitioner used to take milk and he has denied for taking five (05) blank cheques by his Father and has also shown ignorance that even his father had filed a case against the petitioner. 22. It transpires further from Exhibit 1 that a money receipt ( marked with objection) of Rs. 3,00,000/- was prepared and which was signed by the petitioner and which also bears RTI of one Devi and one Chandrika Prasad Yadav i.e. the father of the O.P. No. 2- complainant . However, the money receipt does not disclose the date rather date of giving cash in mentioned in the middle as “23.05.2013”. Even the two (02) witnesses of said money receipt had not been examined on behalf of the complainant –O.P. No. 2 . 23. It also transpires that the Exhibit 2 is a cheque of Rs. 3,00,000/- in the name of the O.P. No.2 which is signed by the 8 petitioner, and Exhibit 3 is the Bank slip for depositing the cheque, and Exhibit 4 is the cheque return memo dated 06.08.2014, and Exhibit 5 is legal notice dated 01.09.2014 and Exhibit 6 is the postal receipt of the said legal notice and Exhibit 7 is the reply dated 08.09.2014 of the petitioner to Sri Sushil Kumar Sharma, Advocate sending legal notice on 01.09.2014 and Exhibit 8 is the complaint petition. 24. It is evident that one Mundrika Yadav who is the father of the complainant –O.P. No. 2 has not been examined by the complainant as the witness for receiving the said amount. 25. D.W.1 is the petitioner himself and during evidence he had stated for merely taking Rs. 60,000/- and he had stated that though he had demanded Rs. 1,60,000, from the father of the O.P. No. 2 but the father of the O.P. No. 2 got obtained five (05) cheques bearing cheque Nos. 000036, 000037, 000038, 000039 and 000040 and had also got the signature of blank papers and on three (3) Agreements . Thereafter he started demanding Rs. 1,00,000/- then he refused to pay and then the petitioner has send the legal notice on 01.08.2013 through his the lawyer to Mundrika Yadav ( i.e. the father of the complainant –O.P. No. 2 ) stating therein that the petitioner had given five (05) cheques bearing cheque Nos. 000036, 000037, 000038, 000039 and 000040 respectively . It further reveals that although the petitioner had demanded loan of Rs.1,60,000/- but the O.P. No. 2 had paid only Rs. 60,000/- to the petitioner. 26. The petitioner has proved the legal notice marked as Exhibit “A” and the postal receipt of the said legal notice marked as Exhibit A/1 and he also stated that even his wife has filed an Informatory petition before the learned Chief Judicial Magistrate , Jamshedpur vide Informatory Petition No. 908 of 2013 against the father of the complainant –O.P. No. 2 and three(03) other brothers 9 namely Santosh Yadav, Surendra Yadav and Praveen Yadav on 19.09.2013 and she had apprehended that the blank cheques can be converted into and used against the petitioner . 27. The petitioner i.e. O.P. W. 1 had been examined on behalf of the complainant O.P. No. 2 and he had stated that he is acquainted with the father of the complainant-O.P. No. 2 for last 10- 15 years and C.W.-1 also admitted that he has instituted the above case for dishonour the cheque No. 000039. 28. Exhibit A is the legal notice send to the father of the O.P. No. 2 by the petitioner through his counsel on 01.08.2013 stating wherein that he had taken five (05) blank cheques in view of giving loan of Rs. 60,000/- only instead of Rs. 1,60,000/- at the time of marriage his son and remaining Rs. 1,00,000 /- had not been paid to him and he had induced his wife to take part in Chit Fund and to join the Scheme. 29. Thus, from through going to the evidence of the petitioner who was examined as O.P.W. 1 and the documents marked as Exhibit A and A/1 respectively, it is evident that even before institution of the Complaint Case, the petitioner had send the legal notice dated 01.08.2013 to the father of the O.P. No. 2 for taking five (05) blank cheques Nos. 000036, 000037, 000038, 000039 and 000040 respectively with the signature of the petitioner on 01.08.2013 i.e. much prior to Filing of the Complaint Case On 07.10.2014 by the complainant -O.P. No.2 i.e. one year , two months before filing of the Complaint Case. 30. It further transpires that the complainant was examined as C.W. 1 and he has denied the suggestion for getting five (05) blank cheques Nos. 000036, 000037, 000038, 000039 and 000040 from the petitioner by the father of the complainant and as such the complainant had not examined his father as a witness in the instant complainant case filed by him. 10 31. It has been held in the case of Sanjay Mishra Versus Kanishka Kapoor @ Nikki reported in 2009 (0) Cr. L. J. 3777 by the Bombay High Court, at para- 11, 12, 13 and 15 as follows:- to see that merely on “Para-11:- The Apex Court also reiterated well established legal position that for rebutting the presumption under section 139 of the said Act, it is not necessary in every case for the accused to step into the witness box. The Apex Court held that the standard of proof on the part of the accused and that of prosecution in a criminal case is different. The prosecution has to prove the guilt of an accused beyond reasonable doubt, but the standard of proof so as to prove a defence is "preponderance of probability". Inference of preponderance of probabilities can be drawn even by reference to circumstances. In paragraph 44 the Apex Court observed thus: ". The presumption of innocence is a human right (See Narendra Singh v. State of M.P., Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Rajesh Ranjan Yadav v. CBI.) Rights Article 6(2) of the European Convention on Human provides: "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused's rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard the application of presumption as contemplated under section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. ..." (Emphasis added) In paragraph 45 the Apex Court held thus: "45.We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as human rights and the doctrine of reverse burden introduced by section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same." (Emphasis added) The Apex Court held that presumption of innocence forms part of human rights and therefore the doctrine of reverse burden introduced by section 139 has to be delicately balanced. Para-12:- Now turning back to the facts of the present case, assuming that the presumption under section 139 of the said Act regarding existence of debt or liability is not rebutted, in order to attract section 138, the debt or liability has to be a "legally recoverable" debt or liability. As held by the 11 Apex Court in the case of Krishna Bhat (supra) there is no presumption under section 139 of the said Act that the debt is a legally recoverable debt. In the case of Goa Plast (P) Ltd.Vs. Chico Ursula D'Souza [(2004) 2 Supreme Court Cases 235] the Apex Court reiterated that a debt or liability subject matter of section 138 means a legally enforceable debt or liability. Para-13:- In the present case, there is a categorical admission that the amount allegedly advanced by the applicant was entirely a cash amount and that the amount was "unaccounted". He admitted not only that the same was not disclosed in the Income Tax Return at the relevant time but till recording of evidence in the year it was not disclosed in the Income Tax Return. By no stretch of imagination it can be stated that liability to repay unaccounted cash amount is a legally enforceable liability within the meaning of explanation to section 138 of the said Act. The alleged debt cannot be said to be a legally recoverable debt. Para-15:- The Apex Court has held that the laws relating to the said Act are required to be interpreted in the light of the object intended to be achieved by it despite there being deviation from general law. The Apex Court expressed that the object of section 138 of the said Act was to ensure that commercial and mercantile activities are conducted in smooth and healthy manner. The explanation to section 138 of the said Act clearly provides that a debt or other liability referred to in section means a legally enforceable debt or other liability. The alleged liability to repay an unaccounted cash amount admittedly not disclosed in the Income Tax Return cannot be a legally recoverable liability. If such liability is held to be a legally recoverable debt, it will render the explanation to section 138 of the said Act nugatory. It will defeat the very object of section 138 of the Act of ensuring that the commercial and mercantile activities are conducted in a healthy manner. The provision of section amount. A cheque 138 cannot be resorted to for recovery of an unaccounted issued in discharge of alleged liability of repaying "unaccounted" cash amount cannot be said to be a cheque issued in discharge of a legally enforceable debt or liability within the meaning of explanation of section 138 of the said Act. Such an effort to misuse the provision of section 138 of the said Act has to be discouraged.” 32. It has been held in the case of Basalingappa vs. Mudibasappa reported in (2019) 5 SCC 418 at paragraph nos. 13, 14, 16, 17, 22, 25, 25.05, 28 and 29 as follows:-
Decision
“Para 46:-.. In the result, we pass the following order: (i) Criminal Appeal Nos. 1978 of 2013 and 1990 of 2013 are allowed and the common judgment of conviction dated 28 October 2008 and order of sentence dated 30 October 2008 respectively are quashed and set aside. The judgments and orders dated 10 July 2011 passed by the learned Trial Court is confirmed. (ii) Civil Appeal Nos. 10500 of 2013 and 10501 of 2013 are dismissed. However, the decrees of the High Court are modified, thereby restricting them to the amount already deposited by the appellants in this Court in the civil and criminal proceedings, along with interest accrued thereon. (iii) The respondents in both the Civil Appeals would be entitled to withdraw 50% of the amount each from the amount deposited in this Court with interest accrued upto date. 34. Although , it is well settled from the judgment of the Apex Court that if the signature of the holder of the cheque is validly proved then liability under section 138 of N.I. Act is made against the said person but it is also well settled that the presumption is rebuttable under section 139 of the Negotiable Instrument Act. 35. It also transpires that the petitioner has not denied the signature on the cheques issued by the petitioner to the father of the O.P. No. 2 which was later on converted into the cheque marked as Exhibit 2 dated 21.05.2014 for a sum of Rs. 3,00,000/- . However neither the learned Trial Court below nor the Appellate Court below 18 have considered the defence of the petitioner and both the learned Court below had not considered the fact that the presumption under section 139 of the Negotiable Instrument Act is rebuttable and have failed to consider the defence of the petitioner. 36. From perusal of the Exhibit A i.e. the Legal Notice send by the petitioner to the father of the O.P. No. 2. it would appear that five (05) cheque Nos. 000036, 000037, 000038, 000039 and 000040 have been mentioned including cheque No. 000039 which has been marked as Exhibit 2 which is cheque of Rs. 3,00,000/- signed by the petitioner on 21.05.2014 . 37. It is further evident that the complainant-O.P. No. 2 had not denied the legal notice dated 01.08.2013 send by the petitioner to one Mudrika Prasad Yadav who is the father of the O.P. No.2 . 38. It is further transpires that the learned Appellate Court below has simply rejected the defence of petitioner by observing that the petitioner has taken the plea of loss of cheque in Exhibit A and also not in confirmative in Exhibit B without looking into the fact that the petitioner has send the legal notice to the father of the O.P.No.2 as early as on 01.08.2013 i.e. the prior to one year two months ago before institution of the Complaint Case. 39. It appears that the complainant has not filed the Income tax return before the learned Court below for given the amount loan of Rs.3,00,000/- to the petitioner for year 2013 and the complainant has not examined his father even though he was asked during his cross- examination that his father had taken 5 (five ) cheques Nos. 000036, 000037, 000038, 000039 and 000040 respectively and given Rs. 60,000/- to him. Although the petitioner had taken specific defence that the O.P. No. 2 had no financial capacity to give loan to the accused –petitioner. 40. Under the circumstances, the impugned judgment dated 04.01.2018 passed in Cr. Appeal No. 136 of 2017 by the Court of 19 learned Sessions Judge, East Singhbhum and the judgment of conviction and order of sentence dated 12.09.2019 passed by Mr. Arbind Kachhap, Judicial Magistrate, 1st Class , Jamshedpur in connection with C/1 Case No. 3562 of 2014 having T.R. No. 173 of 2017 are set-aside, in the interest of justice and the petitioner namely Kusheshwar Prasad @ Kusheshwar Thakur is acquitted for offence under section 138 of the N.I.Act and the petitioner is discharged from the liability of the bail bonds. 41. Thus, this Criminal Revision No. 116 of 2018 is allowed. (Sanjay Prasad, J.) Bibha/