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2024 DIGILAW 376 (MP)

Ashish Kumar Agrawal S/o Shri Laxmi Narayan v. Nitesh Kumar Goyal S/o Shri Nagarmal

2024-04-26

MANINDER S.BHATTI

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ORDER : This application under Section 378(4) of Code of Criminal Procedure has been filed by the applicant seeking leave to file an appeal against the judgment of acquittal dated 24.09.2019 passed by Judicial Magistrate First Class, Balaghat in Complaint Case No. 3386 of 2014 whereby the respondent No.1 has been acquitted of the offence under Section 138 of the Negotiable Instruments Act. 2. Learned counsel for the applicant contends that the trial Court was approached by the present applicant by way of a complaint under Section 138 of N.I. Act and it was averred in the complaint that a sum of Rs.10 Lakhs was to be recovered from the respondent No.1 and therefore, the respondent No.1 in order to pay the said amount, issued a cheque of Rs.10 Lakhs dated 28.03.2013. The said cheque was dishonoured and resultantly the respondent No.1 was liable to be dealt with under Section 138 of N.I. Act. However, the trial Court while passing the impugned judgment concluded that as the present applicant did not clarify towards what debt or liability, the cheque of Rs.10 Lakhs was issued, therefore, proceeded to dismiss the complaint. It is contended by the counsel that under the provisions of Negotiable Instruments Act, there is a presumption in favour of the holder of the cheque once a cheuqe is in the hand of the holder and the same is submitted for encashment, upon being dishonoured the complainant gets a right to file a complaint. The complainant/present applicant by filing the complaint in the present case, discharged the primary burden of the fact that he was holder of the cheque in due course. Therefore, the respondent No.1 was duty bound to rebut the said presumption which in the present case was not done by the respondent No.1. It is further contended by the counsel that in the present case, during pendency of the complaint as well, some payments towards the total outstanding were made by the respondent No.1 therefore, the respondent No.1 could not have escaped from his liability to pay the amount mentioned in the cheque. Thus, counsel submits that the impugned judgment deserves to be set-aside. 3. Per contra, learned counsel for the respondent/State opposed the prayer. 4. Heard the submissions advanced on behalf of the applicant and perused the record. 5. Thus, counsel submits that the impugned judgment deserves to be set-aside. 3. Per contra, learned counsel for the respondent/State opposed the prayer. 4. Heard the submissions advanced on behalf of the applicant and perused the record. 5. A perusal of the record it reflects that the present applicant approached the trial Court by filing a complaint and in paragraph 2 of the complaint following averments were made :- ^^2- ;g fd ifjoknh fxfjtk vk;ju dk izksizkbZVj gS RkFkk ifjoknh dks vkjksih ls 10]00000@& vadu nl yk[k :i;s ysuk Fks ftlds Hkqxrku ckcr~ vkjksih us iatkc us'kuy cSad ckyk?kkV ds pkyw [kkrk Øa 0038002100023052 dk pSd Øa 7103750002400 jkf'k 10]00000@& vadu nl yk[k :i;s fnukad 28-03-2013 dk fn;k FkkA^^ 6. A peruusal of the aforesaid paragraph reveals that no averments were made by the present applicant as to how the present applicant was entitled to recover Rs.10 Lakhs from the respondent No.1. There is no mention in the entire paragraph 2 that the cheque was issued to the present applicant towards any debt or enforceable liability. Undisputedly, the paragraph 2 of the complaint is silent as regards this aspect of the matter. 7. After filing of complaint, the complainant was also examined and the complainant in paragraph 9 of his cross-examination again admitted that he has not explained in the complaint as to for which purpose a sum of Rs.10,00000/- were given to the respondent No.1. The present applicant further admitted that he had not disclosed in the complaint that as to when and in relation to what and why the amount of Rs.10,00000/- was given to respondent No.1. 8. Paragraph 9 of the statement of the complainant/applicant is also reproduced as under:- ^^9- ;g dguk lgh gS fd eSus izdj.k esa fufr'k dqekj xks;y] lekfu;k bEisDVl izkbosV fyfeVsM ds Mk;jsDVj gksus ds laca/k esa dksbZ nLrkost izdj.k esa layXu ugha fd;k gWwA ;g dguk lgh gS fd eSus Lo;a dks fxfjtk vk;ju dk izksijkbZVj crk;k gS] mlds laca/k esa eSus izdj.k esa dksbZ nLrkost layXu ugha fd;k gwWA ;g dguk lgh gS fd eSus vkjksih ls 10 yk[k :i;s ysuk ifjokn esa crk;k FkkA ysfdu mDr 10 yk[k :i;s fdl laca/k eas ysuk Fkk ;g ugha crk;k gSA ;g dguk lgh gS fd eSaus vius ifjokn esa ;g ugha crk;k gS fd mDr 10 yk[k :i;s dh jde eSus vkjksih dks dc] fdl laca/k esa rFkk D;ksa nhA^^ 9. A collective reading of paragraph 2 of the complaint as well as paragraph 9 of the cross-examination of the complainant's statement makes it abundantly clear that the complaint itself was lacking in particular which was required to be asseverated in order to bring the complaint within the ambit of Section 138 of N.I. Act. It was bare minimum requirement that at least in one line, the applicant ought to have stated that the cheque was given for some enforceable debt or liability. Upon being cross-examined as detailed hereinabove, the applicant did not make any effort to clarify the said aspect even in his cross-examination. 10. Sections 118 and 139 of Negotiable Instruments Act deal with the issue regarding presumption and there is a presumption in favour of the holder of the cheque and as per the said statutory provisions, it is presumed that the holder of the cheque received a cheque, for the discharge of, whole or part of any debt of liability. The aspect of presumption was considered by the Apex Court in number of decisions. 11. The Apex Court in the case of Rajesh Jain vs. Ajay Singh reported in (2023) 10 SCC 148 has held in paragraphs 28, 29, 33, 34, 37, 40 and 41 as under:- "28. There are two senses in which the phrase “burden of proof” is used in the Evidence Act, 1872 (“the Evidence Act” hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the “legal burden” and it never shifts, the latter is called the “evidential burden” and it shifts from one side to the other. [See Kundan Lal Rallaram v. Custodian (Evacuee Property) [Kundan Lal Rallaram v. Custodian (Evacuee Property), 1961 SCC OnLine SC 10 : AIR 1961 SC 1316 ] 29. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (see Halsbury's Laws of England, 4th Edn. para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G. Vasu v. Syed Yaseen Sifuddin Quadri [G. Vasu v. Syed Yaseen Sifuddin Quadri, 1986 SCC OnLine AP 147 : AIR 1987 AP 139 ] affirmed in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35 ] * * * 33. The NI Act provides for two presumptions : Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability”. It will be seen that the “presumed fact” directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated—reference to one can be taken as reference to another] 34 . Section 139 of the NI Act, which takes the form of a “shall presume” clause is illustrative of a presumption of law. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated—reference to one can be taken as reference to another] 34 . Section 139 of the NI Act, which takes the form of a “shall presume” clause is illustrative of a presumption of law. Because Section 139 requires that the Court “shall presume” the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase “unless the contrary is proved”. * * * 37. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further. * * * 40. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words “until the contrary is proved” occurring in Section 139 do not mean that the accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa v. Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571 : AIR 2019 SC 1983 ] ; see also Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823]. 41. [Basalingappa v. Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571 : AIR 2019 SC 1983 ] ; see also Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823]. 41. In other words, the accused is left with two options. The first option—of proving that the debt/liability does not exist—is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty-one to forty-nine and arising out of the entire circumstances of the case, which includes : the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his Section 313CrPC statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was “no debt/liability”. [Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823]." 12. The aforesaid recent decision of the Apex Court reveals that it is a right of the accused to rebut the presumption which is available with the complainant in terms of Section 139 of N.I. Act. In the present case, paragraph 9 of the cross-examination of the present applicant/complainant reflect that the respondent No.1 in the present case rebutted the presumption and the present applicant in turn upon shifting of burden failed to establish that the cheque was given for any enforceable debt or liability. 13. Upon rebuttal of presumption in terms of paragraph 9 of the crossexamination of the present applicant/complainant, the onus having been shifted upon the present applicant and upon present applicant's failure to prove that the cheque in question was issued towards any enforceable debt or liability, in the considered view of this Court, the trial Court has not committed any error in passing the impugned judgment of acquittal dated 24.09.2019 (Annexure A/1). The impugned judgment does not suffer from any infirmity or perversity. Thus, this Court does not find it to be a fit case to grant leave to appeal against the impugned judgment of acquittal. 14. Accordingly, the application stands dismissed.