Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 340 (ALL)

Ranjit v. State of U. P.

2020-01-31

MANJU RANI CHAUHAN

body2020
JUDGMENT : 1. Heard Sri Pramod Kumar Saxena, learned counsel for the applicant and Mr. Amit Singh Chauhan and Mr. Prashant Kumar, learned A.G.As. for the State. 2. Learned counsel for the applicant and the learned A.G.A. agree that the present application may be disposed of at this stage without calling for further affidavits in view of the order proposed to be passed today. 3. By means of this 482 Cr.P.C. application, the applicant has questioned summoning order dated 7th May, 2019 passed by the Chief Judicial Magistrate, Jalaun in Complaint Case No.1277 of 2019 (Sm. Kamla Devi Vs. Ranjit), under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I. Act”), Police Station-Kotwali Orai, District-Jalaun, whereby the applicant has been summoned. The applicant also seeks for quashing of the order dated 24th October, 2019 passed by the Sessions Judge, Jalaun in Criminal Revision No. 66 of 2019, whereby the revision filed by the applicant against the summoning order dated 7th May, 2019, has been dismissed. 4. The facts, as borne out from the records of the present application, are as follows: The complainant/opposite party no.2 and applicant are relatives, as the applicant is son-in-law of brother of the complainant/opposite party no.2. In month of April, 2016, being the relative of the complainant, the applicant had taken a loan of Rs. 1,90,000/- from the complainant for purchasing of tractor and installation of tube-well on his field, on the assurance that he would repay the same within a year. After expiry of the aforesaid period, when the complainant requested the applicant to return the aforesaid money, he deferred the same. When the complainant exerted pressure upon the applicant to repay the same, he had given a cheque no. 806369 of Vijaya Bank for a sum of Rs. 1,90,000/- to the complainant on 15th January, 2019. On the same day, the complainant has presented the same before the Central Bank of India, where her saving bank account is maintained, for encashment, but the same has been returned to the complainant on 19th January, along with return memo that there was no sufficient balance in the account of the applicant. Thereafter since the applicant was the relative, opposite party no.2/complainant did not want to take any legal action against him, hence she made all efforts to reconcile the matter but all went in vain. Thereafter since the applicant was the relative, opposite party no.2/complainant did not want to take any legal action against him, hence she made all efforts to reconcile the matter but all went in vain. Thereafter the complainant/opposite party no.2 sent a legal notice to the applicant through her advocate on 6th February, 2019 within 15 days of the receipt of return memo, which has been served upon him on 9th February, 2019. The applicant instead of repaying the loan amount of complainant, has sent a reply to the legal notice sent by opposite party no.2 on 5th March, 2019. Hence, the present complaint has been filed by the complainant/opposite party no.2. After registration of the said complaint case, impugned summoning order has been passed against the applicant. 5. Learned counsel for the applicant submits that the applicant is self-employed and driving E-Rikshaw for his livelihood in New Delhi and its surrounding area for the last five years. Opposite party no.2/complainant is sister of father-in-law of the brother of the applicant, namely, Dharmendra. The allegations made in the complaint case that the applicant has taken loan of Rs. 1,90,000/- from the complainant for purchasing tractor and installation of tube3 well on his field, is absolutely false and fictitious as in the year 2016, the applicant was living in New Delhi, where he was driving ERickshaw for his livelihood. It is further submitted that the applicant had never given any cheque of Rs. 1,90,000/- to the complainant/opposite party no.2 for repayment of loan taken by him. He was unaware of any conspiracy which was being hatched by opposite party no.2 or her sons. After receiving legal notice dated 6th February, 2019 sent by the Advocate of complainant about the loan taken, dishonour of cheque and demand of payment, he came to know that some conspiracy is going on against him and he tried to search his cheque book and found that the same was missing. On 28th February, 2019, the applicant informed the concerned Branch of the Bank about his missing cheques and stopping of payment from the said account. On 28th February, 2019, the applicant informed the concerned Branch of the Bank about his missing cheques and stopping of payment from the said account. It is further submitted that being close relatives, sons of the complainant, namely, Sandeep, Jitendra and Kuldeep, came to Delhi and resided in the room of the applicant in November, 2018 and they stole the cheque book of the applicant and by making his forged signatures, they cooked up a false and frivolous story. It is further submitted that the applicant was not engaged in agriculture for which he had to take any loan. His father and two elder brothers are engaged in agriculture. When he came to know that Sandeep son of opposite party no.2 had stolen his cheque book and forged his signatures on one leaf and deposited in the account of opposite party no.2 at Orai as conspired, the applicant gave reply to the legal notice sent by opposite party no.2 through her Advocate on 5th March, 2019. It is further submitted that after getting reply of notice, opposite party no.2 instead of contacting the applicant and clarifying the matter, straightway filed the present complaint case against him on 19th March, 2019 without enclosing copy of the reply of applicant. The concerned Magistrate, without application of judicial mind, took congizance and summoned the applicant on 7th May, 2019. Since the applicant was residing in Delhi, he had no knowledge about the summoning order issued against him and could not appear before the court below, the bailable warrant has been issued against him. It is against the summoning order dated 7th May, 2019, applicant has preferred Criminal Revision No. 66 of 2019, which has also been dismissed by the District and Sessions Judge, Jalaun at Orai vide order dated 24th October, 2019. The revisional court has also committed error in confirming the summoning order. It is further submitted that on 20th September, 2019 the applicant has also tried to lodge a first information report against the complainant and her sons for theft, forgery and cheating and when the same has not been lodged, he moved a complaint before the Chief Judicial Magistrate, Jalaun which was registered as Complaint Case No. 5549 of 2019. It is further submitted that on 20th September, 2019 the applicant has also tried to lodge a first information report against the complainant and her sons for theft, forgery and cheating and when the same has not been lodged, he moved a complaint before the Chief Judicial Magistrate, Jalaun which was registered as Complaint Case No. 5549 of 2019. It is further submitted that the complaint/opposite party no.2 concealed the facts mentioned in the reply given by the applicant to the legal notice dated 6th February, 2019, in which he had taken a plea that the cheque has been stolen and the signature appended on he said cheque was forged. Complainant has also not attached copy of the said reply along with the complaint. It is also submitted that in the complaint, the complainant/opposite party no.2 did not disclose that by what mode, before whom and at which place, the loan was given, as it is not given in the normal course of business. Such amount is legally not recoverable debt/loan as per Section 138 N.I. Act, hence no offence will be constituted if the cheque is dishonored on the ground of stolen and forged cheque. It is further submitted that the concerned Magistrate has acted in mechanical manner while passing the summoning order dated 7th May, 2019 and did not apply his judicial mind, as it was not a case of business transaction but it is case of hatched conspiracy between near relations. No details of loan, witnesses and cheque have been disclosed in the complaint which makes the whole case very flimsy and doubtful. In support of his plea, the learned counsel for the applicant has commended this Court to the following decisions of the Apex Court: 1. Raj Kumar Khurana Vs. State of (NCT of Delhi) & Another reported in (2009) 6 SCC 72 ; 2. S.P. Chengalvaraya Naidu (dead) by L.Rs. Appellants Vs. Jagannath (dead) by L.Rs. & other Respondents, reported in AIR 1994 SC 853 ; and 6. Learned counsel for the applicants, therefore, submitted that the present criminal proceedings initiated against the applicants are not only malicious but also amount to an abuse of the process of the Court. On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the applicants that the proceedings of the above mentioned complaint case are liable to be quashed by this Court. 7. On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the applicants that the proceedings of the above mentioned complaint case are liable to be quashed by this Court. 7. Per contra, Mr. Chauhan learned counsel for the State has opposed the submissions made by the learned counsel for the applicant by contending that there is no illegality or infirmity in the order of summoning of the applicant passed by the concerned Magistrate, as also in the order affirming the same passed by the revisional court. It is further submitted that the submissions made by the learned counsel for the applicant that stolen cheques cannot be a basis of constituting an offence of Section 138 of N.I. Act is liable to be rejected on the ground that it is not a case of fraud, conspiracy or stealing of cheques. As per the own case of the applicant, It is only after receiving legal notice sent by opposite party no.2 through her Advocate, he made an application before the Bank about missing of cheques and stopping of his account only on 28th February, 2019 and thereafter he went to concerned Police Station for lodging of the first information report, but the same has not been lodged and ultimately he filed a complaint thereafter. The said step has only been taken to build up his case of fraud, conspiracy and stealing of cheque. It is also submitted that the plea taken on behalf of the applicant that the signature appended on the cheque is not of the applicant, the same is forged and fabricated, which have been committed by opposite party no.2 and her sons, is also liable to be rejected on the ground that after presentation of the cheque in question before the Bank for encashment by opposite party no.2, the same has been dishonoured and returned on 19th January, 2019 with a endorsement that there is no sufficient balance in the account of the applicant and not with an endorsement that the signature is different. The concerned Magistrate on the basis of materials and evidence produced before him has rightly passed the order summoning the applicant. At the initial stage, the truth, veracity and effect of the evidence which the prosecutor adduced cannot be meticulously judged, nor is any weight to be attached to the probable defence of the accused. The concerned Magistrate on the basis of materials and evidence produced before him has rightly passed the order summoning the applicant. At the initial stage, the truth, veracity and effect of the evidence which the prosecutor adduced cannot be meticulously judged, nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the concerned Magistrate at that stage to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the concerned Magistrate is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the concerned Magistrate to say that there is no sufficient ground for proceeding against the accused. It is further submitted that the revisional court has also not committed any error in affirming the order of the concerned Magistrate summoning the applicant. It is further submitted that the case laws as cited by the learned counsel for the applicant are not applicable in the facts of the present case. On the cumulative strength of the aforesaid, learned A.G.A. for the State submits that the present application is liable to be dismissed. 8. I have considered the submissions made by the learned counsel for the applicants and have gone through the records of the present application. 9. Before expressing any opinion on the merits of the case set up by both the parties, it would be worthwhile to reproduce Sections 118, 138 and 139 of the Negotiable Instrument Act, which are quoted herein-below: “118. Presumptions as to negotiable instruments. 9. Before expressing any opinion on the merits of the case set up by both the parties, it would be worthwhile to reproduce Sections 118, 138 and 139 of the Negotiable Instrument Act, which are quoted herein-below: “118. Presumptions as to negotiable instruments. —Until the contrary is proved, the following presumptions shall be made:— (a) of consideration —that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date —that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance —that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer —that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements —that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps —that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course —that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 138. Dishonour of cheque for insufficiency, etc., of funds in the account. 138. Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.] 139. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.” 10. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.” 10. From the above, it is manifestly clear that a dishonour would constitute an offence only if the cheque is returned by the bank ‘unpaid’ either because the amount of money standing to the credit of the drawer’s account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by him from the bank regarding such dishonor and where the drawer of the cheque fails to make the payment within 15 days of the receipt of the aforesaid legal demand notice, cause of action under Section 138 NI Act arises. 11. From the Chapter XVII comprising Sections 138 to 142 of the Negotiable Instruments Act, which was introduced in statute by Act 66 of 1988, it is also apparently clear that the object underlying the provision contained in the said Chapter was aimed at inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business and day to day transactions by making dishonour of such instruments an offence. A negotiable instrument whether the same is in the form of a promissory note or a cheque is by its very nature a solemn document that carries with it not only a representation to the holder in due course of any such instrument but also a promise that the same shall be honoured for payment. To that end Section 139 of the Act raises a statutory presumption that the cheque is issued in discharge of a lawfully recoverable debt or other liability. To that end Section 139 of the Act raises a statutory presumption that the cheque is issued in discharge of a lawfully recoverable debt or other liability. This presumption is no doubt rebut table at trial but there is no gain saying that the same favours the complainant and shifts the burden to the drawer of the instrument (in case the same is dishonoured) to prove that the instrument was without any lawful consideration. It is also noteworthy that Section 138 while making dishonour of a cheque an offence punishable with imprisonment and fine also provides for safeguards to protect drawers of such instruments where dishonour may take place for reasons other than those arising out of dishonest intentions. It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period. 12. This Court having noticed the facts of the case and the evidence on the record needs to note the legal principles regarding nature of presumptions to be drawn under Section 139 of the Act and the manner in which it can be rebutted by an accused. Section 118 provides for presumptions as to negotiable instruments. The complainant being holder of cheque and the signature appended on the cheque having not been denied by the Bank, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebut table presumption. Before this Court refers to various judgments of the Apex Court considering Sections 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an accused especially in a case where some statutory presumption regarding guilt of the accused has to be drawn. 13. A Three-Judge Bench of the Apex Court in the case of Kali Ram Vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808 has laid down following:- “23. 13. A Three-Judge Bench of the Apex Court in the case of Kali Ram Vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808 has laid down following:- “23. ……………………One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.” 14. Further the Apex Court in Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Pyarelal, reported in (1999) 3 SCC 35 had considered Section 118(a) of the Act and 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 paragraph No.12 following has been laid down:- “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 rebut table. In paragraph No.12 following has been laid down:- “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 rebut table. 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 its 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 nonexistence 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……” 15. In M.S. Narayana Menon Alias Mani Vs. In M.S. Narayana Menon Alias Mani Vs. State of Kerala and Another, reported in (2006) 6 SCC 39 , the Apex Court had considered Sections 118(a), 138 and 139 of the Act, 1881 and held that that presumptions both under Sections 118(a) and 139 are rebut table in nature. Explaining the expressions “may presume” and “shall presume” referring to an earlier judgment, following was held in paragraph No.28:- “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, (2005) 12 SCC 1, in the following terms: (SCC pp. 30-31, para 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 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’.” 16. In view of the above, it is clear that the expression “shall presume” cannot be held to be synonymous with conclusive proof. Referring to definition of words “proved” and “disproved” under Section 3 of the Evidence Act, following was laid down by the Apex Court in paragraph No.30 of the aforesaid judgment: “30. Applying the said definitions of “proved” or “disproved” to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.” 17. The Apex Court has already 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, following was observed in paragraph No.32:- “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.” 18. In Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, reported in (2008) 4 SCC 54 , the Apex Court has 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. Following was laid down in Paragraph No.32:- “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.” 19. The Apex Court again reiterated that 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”. In paragraph No.34, following was laid down:- “34. 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 record by the parties but also by reference to the circumstances upon which he relies.” 20. In Kumar Exports Vs. 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 he relies.” 20. In Kumar Exports Vs. Sharma Carpets, reported in (2009) 2 SCC 513 , the Apex Court again examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted. In paragraph Nos. 18 to 20, following has been laid down:- “18. Applying the definition of the word “proved” in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase “until the contrary is proved” in Section 118 of the Act and use of the words “unless the contrary is proved” in Section 139 of the Act read with definitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebut table, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 20. When a presumption is rebut table, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 20. ……………………The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist……………” 21. A Three-Judge Bench of the Apex Court in Rangappa Vs. Sri Mohan, reported in (2010) 11 SCC 441 had elaborately considered provisions of Sections 138 and 139. In the above case, trial court had acquitted the accused in a case relating to dishonour of cheque under Section 138. The High Court had reversed the judgment of the trial court convicting the accused. In the above case, the accused had admitted signatures on the cheque. This Court held that where the fact of signature on the cheque is acknowledged, a presumption has to be raised that the cheque pertained to a legally enforceable debt or liability, however, this presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. In Paragraph No.13, following has been laid down:- “13. The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 0886322 dated 8-2- 2001) was indeed his own. In Paragraph No.13, following has been laid down:- “13. The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 0886322 dated 8-2- 2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probable.” 22. After referring to various other judgments of this Court, the Apex Court in that case held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability, which, of course, is in the nature of a rebut table presumption. In paragraph No.26, following was laid down:- “26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat, (2008) 4 SCC 54 may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.” 23. Elaborating further, the Apex Court has 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 paragraph Nos. 27 and 28, following was laid down:- “27. In paragraph Nos. 27 and 28, following was laid down:- “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 rebut table presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the 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.” 24. In its latest judgment, the Apex Court in the case of Basalingappa Vs. Mudibasappa reported in (2019) 5 SCC 418 , specifically in paragraph nos. -23 and 24 has noticed as follows: “23. We may now notice judgment relied by the learned counsel for the complainant, i.e., judgment of this Court in Kishan Rao Vs. Shankargouda, (2018) 8 SCC 165 . This Court in the above case has examined Section 139 of the Act. In the above case, the only defence which was taken by the accused was that cheque was stolen by the appellant. The said defence was rejected by the trial court. In paragraph Nos. 21 to 23, following was laid down:- “21. Shankargouda, (2018) 8 SCC 165 . This Court in the above case has examined Section 139 of the Act. In the above case, the only defence which was taken by the accused was that cheque was stolen by the appellant. The said defence was rejected by the trial court. In paragraph Nos. 21 to 23, following was laid down:- “21. In the present case, the trial court as well as the appellate court having found that cheque contained the signatures of the accused and it was given to the appellant to present in the Bank, the presumption under Section 139 was rightly raised which was not rebutted by the accused. The accused had not led any evidence to rebut the aforesaid presumption. The accused even did not come in the witness box to support his case. In the reply to the notice which was given by the appellant, the accused took the defence that the cheque was stolen by the appellant. The said defence was rejected by the trial court after considering the evidence on record with regard to which no contrary view has also been expressed by the High Court. 22. Another judgment which needs to be looked into is Rangappa v. Sri Mohan (2010) 11 SCC 441 . A three- Judge Bench of this Court had occasion to examine the presumption under Section 139 of the 1881 Act. This Court in the aforesaid case has held that in the event the accused is able to raise a probable defence which creates doubt with regard to the existence of a debt or liability, the presumption may fail. Following was laid down in paras 26 and 27: (SCC pp. 453-54) “26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat, may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebut table presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. As noted in the citations, this is of course in the nature of a rebut table presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. 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 rebut table presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof.” 23. No evidence was led by the accused. The defence taken in the reply to the notice that cheque was stolen having been rejected by the two courts below, we do not see any basis for the High Court coming to the conclusion that the accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability. How the presumption under Section 139 can be rebutted on the evidence of PW 1, himself has not been explained by the High Court. 24. The above Kishan Rao case was a case where this Court did not find the defence raised by the accused probable. The only defence raised was that cheque was stolen having been rejected by the trial court and no contrary opinion having been expressed by the High Court, this Court reversed the judgment of the High Court restoring the conviction. The respondent cannot take any benefit of the said judgment, which was on its own facts.” (Emphasis added) 25. The only defence raised was that cheque was stolen having been rejected by the trial court and no contrary opinion having been expressed by the High Court, this Court reversed the judgment of the High Court restoring the conviction. The respondent cannot take any benefit of the said judgment, which was on its own facts.” (Emphasis added) 25. This Court has also considered the judgments of the Apex Court in the cases of of Raj Kumar Khurana and S.P. Chengalvaraya Naidu (dead) by L.Rs. (Supras), which have heavily been relied upon by the learned counsel for the applicant. The facts of that case is that the appellant of the said case had lost two blank cheques in his office along with some stamp papers and immediately thereafter he had informed the Bank about missing of the said cheques and also he made a complaint before the Police Station on 21st April, 2001 and when the said blank cheques were alleged filled up on 24th June, 2001 and presented before the Bank, the same were returned dishonoured with the remarks “Said cheque reported lost by the drawer”. However, in the facts of the present case, as per the own statement of the applicant that sons of opposite party no.2 went to the place of applicant at New Delhi and stole the cheques of the applicant in November, 2018 and after making forged signatures of the applicant, on 15th January, 2019 opposite party no.2 had presented the same before the Bank but same has been returned by the Bank to the complainant on 19th January, along with return memo that there was no sufficient balance in the account of the applicant. Thereafter the complainant/opposite party no.2 sent a legal notice to the applicant through her advocate on 6th February, 2019 within 15 days of the receipt of return memo, which has been served upon him on 9th February, 2019. Only on 28th February, 2019, the applicant had informed the Bank about his missing of cheques and stoppage of his bank account. Thereafter on 5th March, 2019, he had given reply to the legal notice dated 6th February, 2019 but has not filed any first information report or complaint under Section 156 Cr.P.C. till that date. Only on 28th February, 2019, the applicant had informed the Bank about his missing of cheques and stoppage of his bank account. Thereafter on 5th March, 2019, he had given reply to the legal notice dated 6th February, 2019 but has not filed any first information report or complaint under Section 156 Cr.P.C. till that date. It is on 20th September, 2019 (reference paragraph-21 of the affidavit accompanying the present application), applicant went to the Police Station for lodging of the first information report about theft, forgery and cheating alleged to have been committed by opposite party no.2 and her sons by using his stolen cheques. When his first information report has not been lodged, he made a complaint under Section 156 (3) Cr.P.C. (reference paragraph-22 of the affidavit accompanying the present application). However, perusal of the said complaint does not mention the date on which such complaint has made moved by the applicant. Therefore, in the opinion of the Court, the case relied upon by the learned counsel for the applicant in the case of Raj Kumar Khurana (Supra) is clearly distinguishable in the facts of the present case. 26. So far as the second judgment relied upon by the learned counsel for the applicant in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. (supra) is concerned, this Court has perused the said judgment in which the Apex Court has held that the courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant who approached the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other wise then he would be guilty of playing fraud on the court. However, in the facts of the present case, neither both the courts below or this Court has prima facie found that the opposite party no.2 has committed any fraud by submitting or filing any forged document. No evidence was led by the applicant. However, in the facts of the present case, neither both the courts below or this Court has prima facie found that the opposite party no.2 has committed any fraud by submitting or filing any forged document. No evidence was led by the applicant. The defence taken in the reply to the notice that cheque was stolen having been rejected by the two courts below as the applicant had not been successful in creating doubt in the mind of the Courts with regard to the existence of the debt or liability or missing or stealing of cheques. The Bank has also not made a remark on the return memo to the opposite party no.2 that there was no sufficient balance in the account of the applicant. Therefore, the case relied upon the by the learned counsel for the applicant in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. (supra) is also not applicable. 27. In view of the aforesaid, this Court finds substance in the contention raised by the learned A.G.A. for the State that there is no illegality or infirmity in the orders passed by both the courts below. This Court also finds that the trial Court after examining the original copy of cheque, cheque return memo, bank receipt, notice, notice delivery statement and original registry receipt, has found substance in the submission of the complainant and has observed that prima facie case for the offence punishable under Section 138 N.I. Act is made out against the applicant and he has rightly passed the impugned order dated 7th May, 2019 summoning the applicant. This Court also finds that after hearing the learned counsel for the parties and examining the records available on record, the revisional court has rightly rejected the criminal revision filed by the applicant against the summoning order dated 7th May, 2019. While passing the impugned order, the revisional court has recorded a finding that the case of the applicant is that he has not taken any money from the complainant and he has not given any cheque to her as also the signature appended on the said cheque is forged, as the same was not of the applicant, may be examined at appropriate stage and before appropriate forum, as the correctness, genuineness or veracity of the same cannot be examined at this pre-trial stage. Hence, this Court does not find any illegality or perversity in the order passed by the Courts below. 28. Even otherwise, this Court also observes that the applicant has already availed his remedy of revision against the order passed by the trial Court. Since in the present case also, the applicant has tried to wreck up the issue of ‘legality' or ‘propriety' of the orders passed by the Courts, therefore, the present application is nothing but a second revision; in the garb of application filed under Section 482 Cr.P.C. However, a person cannot be permitted to do indirectly what he cannot do directly. A bare perusal of Section 482 Cr.P.C shows that the power under Section 482 Cr.P.C can be invoked for three purposes, namely, for giving effect to the orders passed under this Court, for preventing the abuse of the process of the Court and to meet the ends of justice. In the present case, the prayer of the applicant is not for giving any effect to any order passed by the Court. Therefore, the first eventuality prescribed under Section 482 Cr.P.C is not at all attracted. Still further, by any means, an order passed by a Court of competent jurisdiction and continuation thereof; cannot be branded as an abuse of the process of Court; unless it is alleged and shown to the High Court that the Courts below had acted for irrelevant reasons or for extraneous considerations. Needless to say that sufficiency of reasons is not to be gone into after the revisional Court. It is not even the allegation of the applicant in this case that orders are passed by Court below; for irrelevant or extraneous considerations. So far as the third ingredient of Section 482 Cr.P.C is concerned, this Court is not supposed to go into ‘legality' and ‘propriety' of the order passed by the trial Court. Section 397(3) of Cr.P.C prohibits second revision by a party. Under Section 397(1), the Revisional Court is authorized to see ‘legality' and ‘propriety' of the order passed by the Court. Section 397(3) of Cr.P.C prohibits second revision by a party. Under Section 397(1), the Revisional Court is authorized to see ‘legality' and ‘propriety' of the order passed by the Court. Since second revision by the same party is prohibited under Section 397(3), therefore, any argument on ‘legality' or ‘propriety' of an order passed by the Court below, ordinarily, is not to be appreciated in proceedings under Section 482 Cr.P.C, unless it is shown, at the macro level, that such an order has resulted from considerations which were totally alien to the process of the Court or have produced incomprehensibly absurd result and, therefore, have resulted in defeating the ends of justice itself. What cannot be done directly, cannot be done indirectly as well. In the present case, except to argue for re- appreciation of the material before the trial Court, there is not even a submission or an allegation regarding any aberration in the process adopted by the Courts for passing the impugned orders. Therefore, power under Section 482 Cr.P.C cannot be exercised by this Court to re-appreciate the same material, which was available before the Courts below and which have been duly appreciated by the Courts below. 29. Apart from the above, this Court also observes that plea taken on behalf of the applicant that the present complaint is not maintainable on the ground that sons of opposite party no.2 has stolen his cheques and after committing forgery and playing fraud with the help of same, opposite party no. 2 had presented the same before the Bank, cannot be accepted at this stage of the proceedings, as under the order of the trial court he has only been summoned under the provisions of N.I. Act only. The said plea may be taken and examined during the course of trial not at the pre-trial stage. It may also be observed that if it is accepted that sons of opposite party no.2 had stolen his cheques in November, 2018 from his house as per his own statement and after making forged signatures of the applicant, on 15th January, 2019 opposite party no.2 had presented the same before the Bank but same has been returned by the Bank to the complainant on 19th January, along with return memo that there was no sufficient balance in the account of the applicant. Thereafter the complainant/opposite party no.2 sent a legal notice to the applicant through her advocate on 6th February, 2019 within 15 days of the receipt of return memo, which has been served upon him on 9th February, 2019. Only on 28th February, 2019, the applicant had informed the Bank about his missing of cheques and stoppage of his bank account. Thereafter on 5th March, 2019, he had given reply to the legal notice dated 6th February, 2019 but has not filed any first information report or complaint under Section 156 Cr.P.C. till that date. It is on 20th September, 2019 (reference paragraph-21 of the affidavit accompanying the present application), applicant went to the Police Station for lodging of the first information report about theft, forgery and cheating alleged to have been committed by opposite party no.2 and her sons by using his stolen cheques. 30. From the aforesaid it is apparent that from November, 2018 to 28th February, 2019 he has slept over his missing cheques and woke up only after service of legal notice dated 6th February, 2019 i.e. on 9th February, 2019 but after 19 days he moved an application before the Bank for stoppage of bank account. Except that, he has taken six months and twenty days to go to Police Station for lodging of the first information report. Therefore, this Court is of the opinion that the said plea has no leg to stand. The other plea taken on behalf of the applicant that the signature appended on the cheque is not of the applicant the same is forged, has also no leg to stand on the ground that the on presentation of the same, the Bank has returned the same along with return memo as “there was no sufficient balance in the account of applicant” and not as “mismatched signatures”. 31. In the present case, much less to speak of any process alien to law being adopted by the Courts below, as stated above, this Court does not find even any illegality or perversity in the orders passed by the Courts below. 32. This application is accordingly dismissed. There shall be no order as to costs.