…. Amarendra Kumar Singh @ Amrendra Kumar Singh @ Amarendra Kumar Singh @ Amarendra v. 1. The State of Jharkhand 2. Suresh Yadav
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 338 of 2019 …. Amarendra Kumar Singh @ Amrendra Kumar Singh @ Amarendra Kumar Singh @ Amarendra Singh@Amarendra Kumar Singh @ Amrendra Kumar Singh …… Petitioner Versus 1. The State of Jharkhand 2. Suresh Yadav ----- …… Opp. Parties CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Petitioner : Mr. Shobhakar Mishra, Advocate For the State : Mrs. Priya Shrestha, Spl. P. P. For the O. P. No. 2: Mr. Randhir Kumar, Advocate …… JUDGMENT 23/10.04.2024 The present Criminal Revision No. 338 of 2019 has been filed by the petitioner challenging the Judgment dated 11.02.2019 passed in Criminal Appeal No. 73/2018 passed by learned Sessions Judge Koderma in which the learned Court has upheld the judgment of conviction and order of sentence dated 29.06.2018 passed in Complaint Case No. 996 of 2016 corresponding to T. R. No. 466 of 2018 passed by Mr. Vishal Shrivastava, learned CJM Koderma in which the learned Court below had convicted the petitioner for the offence under Section 138 of the N. I. Act and had sentenced the petitioner for the offence under Section 138 of the N. I. Act S.I. for a period of One Year and to pay the compensation of Rs 1,50,000/-. 2. The complainant’s case, in brief, is that the complainant Suresh Yadav is owner of one Tata 210 JCB Machine and earns his livelihood by letting out the said machine. It is stated that accused Amrendra Kumar Singh entered into an agreement of hire -1- of the said machine @ Rs.1,80,000/- rent per month excluding cost of diesel consumed in operating the machine and operator and maintenance charge has to be borne by the complainant. It is further stated that in the month of November, 2015 the said machine was let out to the accused, who worked till the year 2016 without making any accounts. Upon request of complainant for payment of rent of the machine, the accused issued two cheques bearing no. 726730 of Rs. 1.00 lac dated 18.03.2016 and another cheque no. 726728 of Rs. 1,50,000/- dated 02.06.2016 drawn on SBI, Chhota Govindpur, Jamshedpur Branch. The accused suggested to present the said cheque after 2-3 months in his account for payment. It is further alleged that both the cheques were deposited by the complainant in his account on 09.06.2016 which were dishonoured with endorsement "insufficient fund" and cheques were returned with return memo. Thereafter the complainant sent a legal notice through his Advocate on 25.06.2016 and also requested the accused to make payment of the cheque amount but he did not pay the amount rather abused him in filthy language on 18.07.2016. Thereafter this complaint case was lodged on 20.07.2016. 3. Heard learned counsel for the petitioner and learned APP for the State and learned counsel for the opposite party no. 2. 4. It is submitted by the learned counsel for the petitioner that the judgments and order passed by the learned Court below are illegal, arbitrary and not sustainable in law. It is submitted that the judgments passed by the learned Courts below have resulted into miscarriage of justice. It is submitted that the petitioner has already paid entire rent to opposite party no. 2, however, opposite party no. 2 has not returned the cheques taken as securities. -2- It is submitted that the Demand Notice was issued after 15 days of Cheque Bounce. It is submitted that on 28.03.2016 the above mentioned cheques were stopped payment and on 04.04.2016 Opposite Party No. 2 had received Rs. 2.00 Lakhs from petitioner. It is submitted that Opposite Party No. 2 has altered the cheques by putting date and amount. It is submitted that cheques were given as security not for discharge of debt amount. It is submitted that petitioner has paid entire payable rent of Tata 210 Machine on 22.03.2016 and 04.04.2016. 5. It is submitted that petitioner has returned all the amount to the opposite party No.2 on 04.04.2016 and the Opposite Party No. 2 had put his signature over the revenue ticket and payment bills. It is submitted that on 22.03.2016, the petitioner had deposited Rs. 50,000/- cash on bank account of Opposite Party No. 2 having SBI Bank Account No. 30589935543 S.B.I. Bank. However, the opposite party no. 2 has fabricated entire matter with intention to fraud the petitioner and wanted to grab his hard earned money and the opposite party no. 2 has received his entire payable amount. 6. Learned counsel for the petitioner has relied upon the judgment in the case of M/ Sindus Airways Pvt. Ltd. Ors. Vs. M/S Magnum Aviation Pvt. Ltd. Anr. having case No. Cr. Appeal No. 830 of 2014 decided on 07.04.2014 reported in 2014(3) East Cr. C 167(SC) and in the Case of Ganesh Pandharinath Sapkale and Anr. Vs. Dhanraj Pandharinath Sapkale & anr. having case No. Criminal Writ Petition No. 177 of 2013 decided 01.03.2013 reported in 2013 (21) RCR (Criminal) 427. 7. It is submitted that the petitioner has made payment of Rs 2.5 lakh to Opposite Party No.2 on 04.04.2016 and Rs 50,000/- on -3- dated 22-03-16 to the Opposite party No. 2 as his payable amount for rent of Machine, however the opposite party No. 2 had not returned the security cheques. Therefore the petitioner had requested the Bank for stop payment of the Cheque, hence both i.e. the learned Trial Court below and learned Appellate Court below failed to consider the same, which has resulted into miscarriage of justice. It is submitted that the evidence of stop payment of cheque No. 726730 dated 18.03.16 and Cheque No.726728 date 02.06.2016 and the Bank statement from 28.03.2016 to 28.03.2016 of State Bank Of India Chhota Govindpur Jamshedpur having branch Code 6712 Account No.11338749535 were filed by petitioner before the learned lower court below and the photocopy of SBI Bank Passbook and account book of petitioner and also the certified copy of cross- examination of complainant accepting the signature over revenue ticket and tapering of cheques and the copy of the maintenance receipts and spare receipts also have been annexed with this Criminal Revision Application. It is submitted that certified copy of the SBI Bank Passbook, account book of petitioner, cross- examination of Complainant, maintenance receipts and repair receipt are enclosed with an affidavit as Annexure 13 series to this Criminal Revision and as such, the judgments of conviction and
Facts
order of sentence passed by the learned Trial Court and hence, the judgment passed by the learned Appellate Court may be set aside and the Criminal Revision Application may be allowed. 8. On the other hand, learned counsel for the State has opposed the prayer and has submitted that the judgments and order passed by the learned Courts below are fit and proper and no -4- interference is required from this Court. It is submitted that learned Courts below have rightly rejected the defence of the petitioner. It is submitted that petitioner has not denied the signature on the cheque in question. It is submitted that complainant and his witnesses have fully supported the case of the complainant and hence, this Criminal Revision Application may be dismissed. 9. Learned counsel for the opposite party no. 2, after adopting the submission of the learned counsel for the State, has further submitted that this Criminal Revision Application is devoid of merit. It is submitted that the judgments and order passed by the learned Courts below do not require any interference from this Court. It is further submitted that both the learned Courts below have correctly considered and appreciated the evidence of both the sides and the learned Trial Court had rightly convicted the petitioner for the offence under Section 138 of the N. I. Act and had passed necessary sentence as mentioned above and had rightly held that the petitioner is liable to pay the cheque amount of Rs. 2,50,000/- in question. Mere stopping Bank Account from operation by way of “Stop Payment” is not proper, rather it shows that it was the intension the accused-petitioner for not making any payment. It is submitted that the petitioner has failed to produce original passbook before the learned Court below despite repeated demand. It is submitted that the petitioner has hired the Vehicle in question on rent from the complainant- O. P. No. 2. It is submitted that complainant has fully supported his case during his evidence in the learned Court below. It is submitted that the complaint petition has been filed after reluctant of the petitioner to pay the cheque amount in question. It is submitted that Ext. -1, Ext.- 1/1, Ext. -2, Ext.-2/1, Ext. -3, Ext. -4 and Ext. -5 fully supported the -5- case of the complainant-opposite party no. 2. It is submitted that both the parties have entered into an Agreement and complainant had given JCB Machine on monthly payment of Rs. 1,80,000/- and the accused-petitioner was liable to pay legal dues. It is submitted that Ext. –A has been admitted by the complainant by putting his signature page-8 of book work. It is submitted that Ext.-A to A/2 and Ext.-B respectively cannot be relied upon. It is submitted that the Complaint Case has been filed within fifteen (15) days and not after seventeen (17) days as has been alleged by the petitioner. It is submitted that the petitioner has failed to give reply to the Legal Notice marked as Ext. –C. It is submitted that this is a case of dishonour of two cheques, which were presented by the complainant in the bank and hence, this Criminal Revision Application is devoid of merit and as such, this Criminal Revision Application may be dismissed. 10. Perused the Lower Court Records and considered the submission of both the sides. 11. It transpires that the Complaint Case was filed on 20.07.2016 under Section 138 of the N. I. Act by the complainant against the petitioner. 12. It transpires that after enquiry, cognizance was taken under Section 138 of the N. I. Act against the petitioner vide order dated 02.08.2016 by the learned Court below. 13. Thereafter complainant had appeared and was granted bail and on 30.10.2017. 14. The substance of accusation was explained to the petitioner in Hindi on 30.10.2017 to which he pleaded not guilty and claimed to be tried. 15. The complainant-O.P. No. 2 had got examined only one (01) witness in support of his case, who is as follows:- -6- (i) C.W.-1 Suresh Yadav i.e. Complainant himself. 16. It transpires that the following documents had been marked as the Exhibits on behalf of the complainant- opposite party no. 2, which are as follows:- (i) Ext-1:-Cheque bearing No-726730 dt-18.03.2016, (ii) Ext-1/1:-Cheque bearing No-726728 dt-02.06.2016, (iii) Ext-2:- Bank Return Memo dt-09.06.16 regarding cheque, which has been proved as Ext-1, (iv) Ext-2/1:- Bank Return Memo dt-09.06.16 regarding cheque, which has been proved as Ext-1/1, (v) Ext-3:- Advocate's Notice dated 25.06.2016, (vi) Ext-4:- Postal receipt dt-25.06.2016 and (vii) Ext-5:- Complaint petition. 17. The petitioner has got examined only one (01) witness in support of his case, who is as follows:- (i) O.P.W.-1:-Amarendra Kumar Singh i.e. the petitioner himself. 18. It transpires that the following documents had been marked as the exhibits on behalf of the accused-petitioner, which are as follows:- (i) Ext-A:-Signature of complainant on Book No.-02, page No.-08, (ii) (iii) (iv) Ext-A/1:- Register of Book No.-02 at page-1 to 9, Ext-A/2:- Register of Book No.-01 at page-1 to 17 and Ext-B:- Signature of accused on photo copy of pass book of page. 19. It transpires that statement of the petitioner has been recorded under Section 313 of the Cr. P. C. by the learned Court on 08.01.2018 in which the petitioner denied the circumstances put forth against him. 20. Thereafter, the learned Court below after considering the -7- case of both the sides has convicted the petitioner for the offence under Section 138 of the N. I. Act and had sentenced the petitioner to undergo S. I. for a period of one (1) year and to pay a sum of Rs. 1, 50,000/- as compensation to the complainant. 21. Thereafter, the learned Appellate Court has dismissed the Criminal Appeal No. 73 of 2018 filed on behalf of the petitioner and hence, this Criminal Revision Application has been filed. 22. Therefore, appreciation of evidence of both the sides is required. 23. From perusal of the complaint case, it would appear that the complainant had handed over his Tata 210 JCB to the accused- petitioner on rent on monthly payment of Rs. 1,80,000/- except cost of diesel consumed in operating of machine and maintenance of operator and machine was to be done by the complainant. Machine was handed over to the accused-petitioner by the complainant in November, 2015 and it had worked till the year 2016, but there was no accounting by the accused-petitioner with the complainant. When the complainant demanded amount in question, then the petitioner handed over two cheques one bearing no. 726730 dated 18.03.2016 amounting to Rs. 1,00,000/- drawn by SBI, Chhota Govindpur, Jamshedpur Branch and another cheque bearing no. 726728 dated 02.06.2016 amounting to Rs. 1,50,000/- drawn by SBI, Chhota Govindpur, Jamshedpur Branch and has assured that it will be cleared after 2-3 months when it will be deposited in his account. The complainant deposited both the cheques on 09.06.2016 in his SBI Account, but the same was returned as being dishonoured. Thereafter, Legal Notice was sent on 25.01.2016 through his counsel, which was received by him, but neither reply was given nor payment was made. However, on 18.07.2016, the accused-petitioner came to the house of the -8- complainant and abused him in filthy languages and informed him for not making any payment, then the informant gave information to the police station, but it was not registered and hence the complaint case was filed on 20.07.2016 by one Suresh Yadav. 24. It transpires that the complainant had also filed his Solemn Affirmation (in short SA) on affidavit in Hindi on 02.08.2016. Thereafter, the learned Court below has taken cognizance under Section 138 of the N. I. Act on 02.08.2016. 25. So far as the oral evidence is concerned, C.W.-1 Suresh Yadav i.e. the complainant himself, who has stated that the accused-petitioner came to his house in the year 2015 to took Tata 210 Machine for cutting the soil on the monthly rent of Rs. 1,80,000/-, which continued to November, 2015 till March, 2016 and in the meantime, there was no accounting between both the sides. On demand, the petitioner handed over two cheques of Rs. One (01) Lakh and Rs. 1.50 lakh respectively. However, both the cheuqes were presented to the Bank, then the same were dishonoured. He has proved the cheques marked as Ext.-1 and 1/1 respectively. He has further proved the dishonoured slip of Bank Marked as Ext. -2 and 2/1 respectively. Thereafter he sent Legal Notice through the Advocate on 25.06.2016, which was marked as Ext. -3 and carbon copy of notice marked as Ext. -3. He has further marked the postal receipt as Ext.-4 and complaint petition marked as Ext. -5. 26. During cross-examination, he has stated that he acquainted with the petitioner, Amrendra Kumar Singh 4-5 months earlier prior to handing over the vehicle and they met for the first time at Dehri though one Tulsi Yadav. Thereafter second meeting took place on 07.11.2015 with the accused-petitioner and they used to talk on phone. He admitted that they used to take on -9- phone. However, he could not give any evidence for talking with the petitioner prior to 07.11.2015. Thereafter on 07.11.2015, they met at his house and prior to this he never came to his house. It was agreed that Machine will run 240 hours and the petitioner will pay a fixed payment and he will pay further on more running of Machine, but he has not documentary proof of this talk. His machine had worked at Jhigapani Railway Line. He admitted that there is no paper with regard to transaction between both the sides and one Mahabir Yadav was Poclain Machine Operator and Raju Yadav was also operator. Tulsi Yadav was his friend and Devdhari Yadav was his partner. There was the date in the first cheque, but in the other no date was mentioned. He received first cheque on 18.03.2016, but by that time, no accounting was done. The petitioner has not paid any cash after handing over the cheque on 18.03.2016. However, he admitted at para-32 that the petitioner has deposited Rs. 50,000/- in his Bank Account on 22.03.2016, but the petitioner had not paid Rs. 85,000/- between 03.03.2016 to 22.03.2016. He denied that a sum of Rs. 61,718/- was not spent in maintenance of machine from 22.11.2015 to 09.03.2016. He denied the suggestion that the accused has paid Rs. 85,000/- between 03.03.2016 to 22.03.2016. He denied the suggestion that the accused has paid Rs. 61,718/- in machine maintenance between 22.11.2015 to 09.03.2016. He denied the suggestion that the petitioner has paid Rs. 24,781/- between 20.11.2015 to 20.03.2016 in the account of the operator for food and advance by the petitioner. He also denied the suggestion that Rs. 18,000/- was paid rent for Trailer. He denied the suggestion that the accused his paid Rs. 2,16,499/- on 04.04.2016 against these cheques by the accused-petitioner to him. He denied the suggestion that after all accounting, the petitioner has paid the entire amount. Even he -10- denied the suggestion that accounting paper contains his signature as well as the signature of his partner, Devdhari. 27. During further cross-examination, he could not state as to whether the accused has been received notice or not and he cannot file any documentary paper in support of the same. He filed this case after 1-2 months after sending the notice. He has mentioned in the notice of the amount and which he requires. He admitted that notice contained the clause that complainant will bear the expenses of machine maintenance and staff, but the diesel belong to party i.e. the petitioner. He admitted that he had not file any account paper for expenditure of maintenance in Court. He admitted the signature at Page No. 8 of Book No. 2, his signature on the Stamp Ticket in the account, which has been marked as Ext.-A. He admitted that Devdari Yadav had accompanied him at the time of accounting. He denied the suggestion for not doing account after receiving the entire amount. He denied the suggestion that a sum of Rs. 48,581/- was due with the accused and he had informed the accused to take back the cheques after making payment of Rs. 48,581/- only. 28. Thus, it is evident from the evidence of the complainant that there was certain transaction for the payment of Rs. 1,80,000/- although he has denied the suggestion for receiving Rs. 85,000/- and Rs. 61,718/-. However, he admitted his signature on Ext. –A on the Book No. 2 at Page-8. Thus, the evidence of the complaint appears to be incorrect on the point of payment of money. However, his evidence shall be scrutinized after considering the documents filed by him and also considering the evidence and documents of the defence side. 29. O.P.W.-1 is Amrendra Kumar Singh i.e. the petitioner -11- himself and he has proved the photocopy of the passbook of Bank in two sheets having affidavit of P. K. Bhagat Notary Public, Jamshedpur, which contains name and signature of O. P. W.-1 on both pages and the Bank Passbook marked as Ext.-B. He has produced the Register having signature of Suresh Yadav marked as Ext.-A earlier, which was prepared by him and contains the initial on all pages its page-8 signed of Suresh Yadav and page -9 signed by him and one Devdhari Yadav and both Devdhari Yadav and Suresh Yadav are partners. He has proved the page -1 to 9 of registered as Ext.-A/1. He has further proved the pages 1 to 17 of 2nd Register in his writing and signature marked as Ext. –A/2. He has taken machine of the complainant- Suresh Yadav on rent for doing soil work and for which he has handed over two cheques bearing nos. 726730 and 726728 and both cheques were of total Rs. 2.50 Lakh which were handed over by him to the complainant- Suresh Yadav as security. He has paid cash of the amount of both cheques, taken as security to the complainant and for which the complainant- Suresh Yadav had also put his signature on the revenue receipt on its receiving. He has got no dues against the complainant- Suresh Yadav and this case has been filed by the complainant to extort money from wrong intention. During cross-examination, he has stated that complainant- Suresh Yadav is the Owner of the Machine, which was being used for soil cutting and he has taken on rent the said machine on payment of 1.80 Lakh per month and which was being used by him. He denied the suggestion that conditions on which machine was taken, was not fulfilled. He has asserted to issue two cheques for taking the vehicle on such conditions from the complainant. He can file the original passbook whenever it is required in the Court. However, payment has not been made to Suresh Yadav i.e. the -12- Complainant by this passbook, rather payment was made by cash and for which he has submitted documentary evidence to the Court. He has submitted two copies of the accounting before the Court, although first copy does not contain the signature of Suresh Yadav, but Suresh Yadav i.e. the complainant has signed in the 2nd copy and contains were written by him on the copy. 30. Thus, from scrutinizing the evidence of O.P.W.-1 is Amrendra Kumar Singh, it would appear that he has paid cash of Rs. 2,50,000/- to the complainant-Suresh Yadav in lieu of the said two cheques, which were handed over as security and receiving of payment of cash by the complainant-Suresh Yadav also bear his initial i.e. mini signature. He has asserted that there is no dues against him. He has further proved Ext.-B, which are two sheets of passbook in the name of petitioner. He has further proved the Register having pages-1 to 9 as Ext. –A/1 and it also bears the signature of the complainant- Suresh Yadav on page-8. He has further proved 2nd Register, which is page- 1 to 17, which has been marked as Ext. –A/2. 31. So far as the documentary evidence is concerned, Ext. –A is the signature of the complainant –Suresh Yadav at page-8 of Book-2 though the contents are faint at the left side, but it reveals that payment of maintenance amount of machine by the petitioner and the petitioner had earlier paid Rs. 2,16,499/- and subsequently paid Rs. 2,50,000/-, which has been shown as deduction and he has further paid Rs. 80,000/- shown as deduction and the balance amount is seen merely Rs. 48,581/-. Ext. –A and A/1 are the signature of Devdhari Yadav and Suresh Yadav, which was shown to the complainant during evidence of OPW-1. 32. From perusal of Ext. –A and A/1 respectively, it would appear that at the relevant time, total dues was Rs. 5,95,080/- -13- against which the petitioner has paid Rs. 2,16,499/- and Rs. 2,50,000/- ( i.e. the cheque amount in question, which is subject matter of the case) and also Rs. 80,000/-, which were deducted on different dates and the balance of Rs. 48,581/- out of Rs. 5,95,080/- has been shown. 33. Ext.- A/2 are the scanned copy of the Register -2 pages 1 to 17 in the signature of the petitioner-Amarendra Kumar Singh, which reveals that work started from 25.11.2015 till 14.03.2016. Thus, Ext. –A, Ext.-A/1 and Ext. –A/2 have not been objected by the complainant-Suresh Yadav. 34. Thus, it would appear that transaction between the parties has been ended on 14.03.2016 itself. Although Ext. –A/2 does not contain the signature, but it can be used for limited purposes and to corroborate the evidence of OPW.-1 i.e. the revisionist- petitioner. 35. This Court is not looking into the expenses made on various counts, it also includes the repairs of other services etc. as contents of the same has not been brought on record during examination in-chief or cross-examination of the petitioner- Amarendra Kumar Singh while he has been examined as OPW-1. 36. Learned counsel for the petitioner has relied upon the judgment rendered in the case of Dhaval Rejendrasing Atalia Vs. State of Gujrat and Anr. reported in 2017 (2) DCR 68 by the Gujrat High Court. 37. Learned counsel for the petitioner has relied upon the judgment rendered in the case of M/s Modi Cements Ltd. Vs. Kuchil Kumar Nandi in Criminal Appeal No. 24446 of 1998 decided on 02.03.1998 by the Hon’ble Supreme Court, which supports the case of the petitioner. 38. The petitioner has further filed supplementary affidavit on -14- 21.12.2022 showing evidence of stop payment of cheque no. 726730 and 726728 and for accepting the signature of the complainant –Suresh Yadav over revenue ticket and tampering of cheques and copies of the maintenance receipts are enclosed with the 2nd supplementary affidavit as Annexure-13 series. 39. From perusal of page-76 of the 2nd supplementary affidavit, it would appear that the complainant- Suresh Yadav had received Rs. 2,50,000/- cash on 04.04.2016 from the revisionist- petitioner- Amarendra Kumar Singh in lieu of cheque no. 726730 dated 18.03.2016 and another cheque no. 726728 dated 02.06.2016
Legal Reasoning
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 -33- 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 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 legal liability. Even before the trial court, appellant-accused has not denied his signature on the cheque.” 53. It transpires that Mahabir Yadav and Raju Yadav, who were Poclain Machine Operator, have not been examined on behalf of the complainant even Tulsi Yadav, who was his friend and Devdhari Yadav, who was partner of the complainant, had not been examined. 54. It transpires from the evidence of the complainant that there was non-payment of certain amount, thus the complainant had filed this case under N. I. Act, although it was the case of civil dispute. Complainant had himself admitted and stated in evidence that the petitioner has not paid Rs. 85,000/-. Although, he admitted in para-32 that the petitioner had deposited Rs. 50,000/- in his Bank Account and the complainant had admitted the signature at page-8 of book-2 marked as Ext.-A, which clearly reveals regarding the payment of Rs. 2,16,499/- by the petitioner to the complainant-opposite party no. 2. Ext. A and A/2 clearly show that the petitioner has paid Rs. 2,16,499/- in cash as accounted to the opposite party no. 2 and had paid Rs. 2,50,000/ to the opposite party no. 2 and which has been deducted from the total amount of -34- Rs. 5,95,080/- which is evident from the Ext. –A and Ext. –A/1 respectively. Ext. –A contains the signature of Devdhari Yadav (who has not been examined) though he was partner of the complainant and Ext.-A/1 contains the signature of complainant Suresh Yadav. 55. Thus, the revisionist-petitioner has rebutted the presumption drawn against him by the complainant in light of the provisions of Section 139 of the N. I. Act. It transpires that both the Court i.e. the Appellate Court as well as learned Trial Court have not appreciated the evidence of the revisionist-petitioner and the learned Trial Court has incorrectly and illegally convicted the petitioner for the offence under Section 138 of the N. I. Act and illegally affirmed by the leaned Appellate Court below vide judgment dated 11.02.2019 passed in Criminal Appeal No. 73 of 2018 by the learned Sessions Judge, Koderma. 56. Under the circumstances, the judgment dated 11.02.2019 passed in Criminal Appeal No. 73/2018 by Learned Principal District & Sessions Judge Koderma and the judgement of conviction and order of sentence dated 29.06.2018 passed in Compliant Case No. 996/2016 corresponding to T. R. No. 466 of 2018 by Mr. Vishal Shrivastava, learned CJM Koderma in which the learned Court has convicted the petitioner for the offence under Section 138 of the N. I. Act and has sentenced the petitioner for the offence under Section 138 of the N. I. Act S.I. for a period of One Year along with compensation of Rs 1,50,000/-, are set aside and the petitioner- Amarendra Kumar Singh @ Amrendra Kumar Singh @ Amarendra Kumar Singh @ Amarendra Singh@Amarendra Kumar Singh @ Amrendra Kumar Singh is acquitted from the charge for the offence under Section 138 of the N. I. Act and the petitioner- Amarendra Kumar Singh @ -35- Amrendra Kumar Singh @ Amarendra Kumar Singh @ Amarendra Singh@Amarendra Kumar Singh @ Amrendra Kumar Singh is discharged from the liability of bail bonds and petitioner- Amarendra Kumar Singh @ Amrendra Kumar Singh @ Amarendra Kumar Singh @ Amarendra Singh@Amarendra Kumar Singh @ Amrendra Kumar Singh is not required to pay Rs. 1,50,000/-. 57. Thus, this Criminal Revision No. 338 of 2019 is allowed. Kamlesh/N.A.F.R. (Sanjay Prasad, J.) -36-
Arguments
towards final payment of Tata 210 (Mr. Suresh Yadav) at Chaibasa dated 04.04.2016. Thereafter page-77 is signature of the petitioner as well as Suresh Yadav i.e. the complainant on the Register marked as Ext.-A and Ext.-A/1 respectively. 40. It reveals from the scanned copy of the Lower Court Records that although it is faint one that the petitioner has proved Ext.-A, which contains the signature of the complainant-O.P. No. 2 as Ext. –A/1, even the first Register marked as Ext. –A and page -8 book-2 reveals the signature of the complainant-Suresh Yadav and Devdhari Yadav. Therefore the petitioner has proved the payment of cash of Rs. 2,50,000/- in lieu of cheque no. 726730 and cheque no. 726728 even the complainant- O. P. No. 2 has mentioned the first cheque of dated 18.03.2016, however, the date on the 2nd cheque has not been mentioned and thus, it is a case of filling of cheques evenafter payment made by the revisionist- petitioner to the complainant-O. P. No. 2. 41. It has been held in the judgment rendered by the Hon’ble Supreme Court in the case of Krishna Janardhan Bhat Versus Dattatraya G. Hegde reported in 2008 (1) Supreme 306, at para-22, 23, 25, 26 and 29 as follows:- -15- “ Para-22:-. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct. Para-23:- 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 records. 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-25:- Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities . Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. Para-26:- A statutory presumption has an evidentiary value. The question as to whether the presumption whether 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. In a case of this nature, where the 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. Para-29:- Disputes and differences between him and R.G. Bhat stood established by admission of the respondent himself. Similar industry was being run by R.G. Bhat although he was acting as the constituted attorney of the appellant. According to the -16- appellant, R.G. Bhat had cheated him. The counterfoil showed that not more than Rs. 20,000/- had ever been withdrawn from that bank at a time. The courts were required to draw an inference as to the probability of the complainants advancing a sum of Rs. 1.5 lakhs on mere asking and that too without keeping any documentary proof. Even there was no witness. The 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 is difficult to believe.” 42. It has been held in the judgment rendered 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:- “ 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 -17- 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 to see that merely on 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 Apex Court in the -18- 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 -19- 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.” 43. It has been held in the case of Lekh Raj Sharma Versus Yash Pal Gupta passed in Crl. L. P. No. 567 of 2014 vide judgment dated 30.06.2015 by Delhi High Court. Thus cheque amount is not legally enforceable debt at para-21, 22 and 27 as follows:- “ Para-21:- The finding that, as the amount of loan disbursed to the respondent was not shown in the balance sheet and ITR, the appellant could not be said to have proved its case beyond reasonable doubt, is also erroneous. In this regard, reference may be placed on the decisions of the Bombay High Court in: i) Deelip Apte vs. Nilesh P. Salgaonkar & Anr., 2006 (6) BomCR 653, wherein the Court observed: "The learned J.M.F.C. has also held against the complainant the fact that the complainant had not shown the amount advanced by him in his income tax returns. I do not think that every person who gives friendly loans does in all cases show such loans in their income tax returns more so if they are payable on demand after short time. The learned acquitting J.M.F.C. entirely lost sight of the several presumptions which the law has enacted in favour of the complainant." (Emphasis Supplied) ii) Mr. Krishna P. Morajkar vs. Mr. Joe Ferrao, 2013 CRIJ (NOC) 572 Bombay (Decided on 19.07.2013), wherein the Court observed: "The underlined observations do not disclose as to where can one find a prohibition on recovering amounts not disclosed in income tax returns. With utmost humility, I have to state that I have not come across any provision of Income Tax Act, which makes an amount not shown in the income tax returns unrecoverable. The entire scheme of the Income Tax Act is for ensuring that all -20- amounts are accounted for. If some amounts are not accounted for, the person would be visited with the penalty or at times even prosecution under the Income Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income Tax Act. Infraction of provisions of Income Tax Act would be a matter between the revenue and the defaulter and advantage thereof cannot be taken by the borrower. In my humble view, to say that an amount not disclosed in the income tax returns becomes irrecoverable would itself defeat the provisions of Section 138 of the Negotiable Instruments Act. Apart from the purpose of this Act, which has been outlined by the learned Single Judge in Shri Deelip Apte (supra) as well as in Sanjay Mishra (supra), it ought to be seen that the moment a person seeks to recover through a cheque an amount advanced in cash it gets amounted for in the system and the revenue authorities can keep a track of that and if necessary tax the person. To brand an amount which is not shown in Income Tax Act as unaccounted money would be too farfetched and, therefore, I am in respectful disagreement with the observations in Sanjay Mishra (supra), which in fact amounts to reading an additional requirement in Section 138 of the Negotiable Instruments Act, and legislating that such amounts becomes irrecoverable. At the cost of repetition, for saying that an amount not disclosed in income tax returns cannot be legally recoverable liability, some provisions of law to that effect would have to be shown. Such provision was not noticed by me and even the learned Counsel for the respondent could not show any such provision to me." (Emphasis Supplied) Para-22:- Similarly, in the present case, the loan given by the petitioner was a friendly loan for the business of the accused- respondent, in the background that they had known each other for about 40 years. It was payable in a short period of time. Thus, I do not find any merit in the submission of the respondent that -21- since the name of the accused-respondent has not been shown in the balance sheet, or the amount had not been disclosed in the ITR, it stands established that the loan was not disbursed by the appellant. Para-27:- The accused is obliged to set up a probable defence. The defence cannot be only a "possible" defence. It cannot be premised on the mere ipse dixit of the accused. There should be some credible material or circumstance available on record which should lead the Court to conclude that the defence/explanation for issuance of the dishonoured cheque is a probable one. For the reasons aforesaid, in my view, the findings and conclusions drawn by the learned MM on facts is palpably wrong, and it is also based on an erroneous view of the law.” 44. It has 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 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 -22- 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.” 45. It has been held in the case of M. A. Abida Versus HMT Watches Ltd. and Anr. passed in Crl. M. C. No. 2366 of 2008 disposed of on 25.02.2014 by Kerala High Court at para-43 and 50 as follows:- “Para-43:- There is no meaning in contending that these cheques were not relating to the transactions which were settled by the Settlement Committee. As I have pointed out earlier, it is evident from page No.2 of Annexure-A5 that after payment of the full amount, an amount of 38 lakhs arrived at the settlement made by the Settlement Committee, M/s HMT Watches Ltd. had to return '57 Nos. of security cheques' held by them, to the petitioner. Matters being so, it is evident that these 57 cheques based on which the present complaints have been filed are the very same 57 Nos. of cheques mentioned in page No.2 of Annexure A5. It is further evident from the contents of Annexure A5 that those cheques were issued as "security cheques". When the amounts relating to those credit transactions for which 57 undated cheques were issued, were settled and those payments were made, those 57 cheques are to be treated as cheques without any consideration. Further, it cannot be treated as cheques issued in discharge of any legally enforceable debt or liability so as to make out an offence within the meaning of Section 138 of the N.I. Act. Para-50:- Following the decision in Rahul Builders' case supra, the Division Bench of this Court in Joseph Sartho v. G. Gopinathan and Another 2009 (2) R.C.R. (Criminal) 625:2008 (4) KLT 509, which was a case wherein a cheque was issued in discharge of a debt and subsequently the payee has received part- -23- payment of amount covered by the cheque, it has been held that the bouncing of such a cheque, which did not represent the whole amount covered by the cheque cannot be made use of, for filing a complaint alleging an offence under Section 138 of the N.I.Act. In John G. v. Alosious and Another, 2010 (2) KLT 901, it has been held, "The Explanation to S.138 of the Negotiable Instruments Act would show that the debt or liability mentioned in S.138 is legally enforceable debt or liability. When there is part payment before presenting the cheque, it could not be said that there is legally enforceable debt or liability to the extent shown in the instrument. When the amount shown in the cheque is more than what is legally due or enforceable, no offence u/S.138 is made out, unless the cheque is presented with endorsement regarding partial discharge." 46. It has been held in the case of M/s Indus Airways Pvt. Ltd. and Ors. Versus M/s Magnum Aviation Pvt. Ltd. and Anr. reported in 2014 (3) East Cr. C 167 (SC) at para-17,19 and 20 as follows:- “ Para-17:-The Kerala High Court in Ullas had an occasion to consider Section 138 of the N.I. Act. In that case, the post-dated cheque was issued by the accused along with the order for supply of goods. The supply of goods was not made by the complainant. The accused first instructed the bank to stop payment against the cheque and then requested the complainant not to present the cheque as he had not supplied the goods. The cheque was dishonoured. The single Judge of the Kerala High Court held, “………Ext.P1 cheque cannot be stated to be one issued in discharge of the liability to the tune of the amount covered by it, which was really issued, as is revealed by Ext. D1, as the price amount for 28 numbers of mixies, which the complainant had not supplied. ....” Para-19:- The above reasoning of the Delhi High Court is clearly -24- flawed inasmuch as it failed to keep in mind the fine distinction between civil liability and criminal liability under Section 138 of the N.I. Act. If at the time of entering into a contract, it is one of the conditions of the contract that the purchaser has to pay the amount in advance and there is breach of such condition then purchaser may have to make good the loss that might have occasioned to the seller but that does not create a criminal liability under Section 138. For a criminal liability to be made out under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. We are unable to accept the view of the Delhi High Court that the issuance of cheque towards advance payment at the time of signing such contract has to be considered as subsisting liability and dishonour of such cheque amounts to an offence under Section 138 of the N.I. Act. The Delhi High Court has traveled beyond the scope of Section 138 of the N.I. Act by holding that the purpose of enacting Section 138 of the N.I. Act would stand defeated if after placing orders and giving advance payments, the instructions for stop payments are issued and orders are cancelled. In what we have discussed above, if a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise and material or goods for which purchase order was placed is not supplied by the supplier, in our considered view, the cheque cannot be said to have been drawn for an existing debt or liability. Para-20:- In our opinion, the view taken by Andhra Pradesh High Court in Swastik Coaters, Madras High Court in Balaji Seafoods, Gujarat High Court in Shanku Concretes and Kerala High Court in Ullas is the correct view and accords with the scheme of Section 138 of the N.I. Act.” 47. It has been held by the Hon’ble Supreme Court in the case of Krishna Janardhan Bhat Versus Dattatraya G. Hegde reported in 2008 (1) RCR (Criminal) 695 at para-33, 34 and 35 as follows:- -25- “ Para-33:- But, we may at the same time notice the development of law in this area in some jurisdictions. The presumption of innocence is a human right. [See Narender Singh & Anr. v. State of M.P., 2004(3) RCR (Criminal) 613:2004(3) Apex Criminal 269: (2004) 10 SCC 699, Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. 2005(2) Apex Criminal 389:(2005) 5 SCC 294 and Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director 2007(1) RCR (Criminal) 166: 2006 (3) Apex Criminal 700: (2007) 1 SCC 70] Article 6(2) of he European Convention on Human Rights 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 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 to see that merely on the application of presumption as contemplated under Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a negative has been emphasized. It is not suggested that a negative can never be proved but there are cases where such difficulties are faced by the accused e,g,. honest and reasonable mistake of fact. In a recent Article “The Presumption of Innocence and Reverse Burdens : A Balancing Duty” published in [2007] C.L.J. (March Part) 142 it has been stated :- “In determining whether a reverse burden is compatible with the -26- presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice “where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment.” Para-34:-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. Para-35:- Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the courts below approached the case from a wholly wrong angle, viz., wrong application of the legal principles in the fact situation of the case. In view of the legal position as has been enunciated by this Court in M.S. Narayana Menon (supra) and later cases, we are of the opinion that the High Court should have entertained the -27- revision application.” 48. It has been held in the case of Aneeta Hada vs. M/s Godfather Travels and Tours Pvt. Ltd. reported in (2012) 5 SCC 661 at paragraph nos.59 and 64 as follows: is hereby overruled. The decision “Para-59:- In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] does not correctly lay down the law and, in Anil accordingly, Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. The decision in Modi Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove. Para-64:- Keeping in view the anatomy of the aforesaid provision, our analysis pertaining to Section 141 of the Act would squarely apply to the 2000 enactment. Thus adjudged, the Director could not have been held liable for the offence under Section 85 of the 2000 Act. Resultantly, Criminal Appeal No. 1483 of 2009 is allowed and the proceeding against the appellant is quashed. As far as the Company is concerned, it was not arraigned as an accused. Ergo, the proceeding as initiated in the existing incarnation is not maintainable either against the company or against the Director. As a logical sequitur, the appeals are allowed and the proceedings initiated against Avnish Bajaj as well as the Company in the present form are quashed.” 49. It has been held in the case of Charanjit Pal Jindal vs. L.N. Metalics reported in (2015) 15 SCC 768 at paragraph nos.11 and 12 as follows:- “Para-11:- From find that after the aforesaid finding, we analysing all the provisions and having noticed the different decisions rendered by this Court, the three-Judge Bench arrived at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning a company as an accused -28- is imperative. Hence in this case, we find no reason to refer the matter to the larger Bench. 12. In the present case, only the appellant was impleaded as an accused. In that view of the matter, we are of the view that complaint with respect to the offence under Section 138 read with Section 141 of the Act was not maintainable following the decision in Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] . We set aside the judgment dated 17-4-2010 passed by the trial court, the order dated 27-5-2011 passed by the appellate court and the impugned judgment dated 9-11-2012 passed by the High Court of Orissa, Cuttack in Charanjit Pal Jindal v. L.N. Metalics [Charanjit Pal Jindal v. L.N. Metalics, Criminal Revision No. 467 of 2011, decided on 9-11-2012 (Ori)] . The appellant stands acquitted.” 50. It has been held in the case of Himanshu vs. B. Shivamurthy and Another reported in (2019) 3 SCC 797 at paragraph nos.12 and 13 as follows:- “Para-12:- The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a company, every person, who at the time when the offence was committed was in charge of or was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. Para-13:- In the absence of the company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the company and without compliance with the proviso to Section 138, the High Court was in error in holding that the company could now be arraigned as an accused.” 51. It has been held in the case of Tedhi Singh vs. Narayan Dass Mahant reported in (2022) 6 SCC 735 at paragraph nos.3 and 8 as follows:- judgment of “Para-3:- The learned counsel drew our attention to the Basalingappa versus Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571]. This Court, inter alia, has held as follows : (SCC pp. 432-33, para 25) this Court in -29- “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 the 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 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. 25.5. It is not necessary for the accused to come in the witness box to support his defence.” Para-8:- It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the NI Act provides that court shall presume 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. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of “probable defence” has grown. In an earlier judgment, in fact, to which in Basalingappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571] , this Court notes that Section 139 of is an example of reverse onus (see Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] ). It is also true that this Court has found that the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist.” the NI Act adverted been also has 52. It has been held in the case of Basalingappa vs. -30- Mudibasappa reported in (2019) 5 SCC 418 at paragraph nos. 13, 14, 16, 17, 22, 25, 25.05, 28 and 29 as follows:- “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 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 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 non- existence 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 -31- Gupta, (2005) 12 SCC 1] , in the following terms: (SCC pp. 30-31, para 52) is the that true ‘52. … It 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 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 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) is preponderance of “32. The standard of proof evidently 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.” this Court further, Para-22:- Elaborating 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 defendant- accused and the defendant-accused cannot be expected to discharge an unduly high standard of proof. In paras 27 and 28, the following was laid -32- 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 the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial test of transactions. In such a scenario, 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 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.” the