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IN THE HIGH COURT AT CALCUTTA
Tirthankar Ghosh, J.
Indranil Mondal - Appellant
Versus
Birla Corporation Limited - Respondent
Criminal Appeal (SB) No. 84 of 2022
Decided On : 13-01-2023
DISHONOURED CHEQUE - SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 138 AND 139 - REBUTTAL OF PRESUMPTION - INTERPRETATION OF SECTION 139 - SHIFTING OF BURDEN OF PROOF - STANDARD OF PROOF REQUIRED FOR REBUTTAL - APPLICABILITY OF PRINCIPLES GOVERNING APPEALS AGAINST ACQUITTAL - DISTINCTION IN CASES UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT - SCOPE OF APPELLATE REVIEW.
Fact of the Case:
The appellant was convicted by the appellate court for dishonoring a cheque issued to the complainant for Rs. 1,70,000/-. The trial court had acquitted the appellant, holding that the complainant failed to prove any legally enforceable debt or liability. The appellate court, however, set aside the acquittal and convicted the appellant, relying on the presumption under Section 139 of the Negotiable Instruments Act and the failure of the appellant to rebut the presumption.
Finding of the Court:
The High Court held that the trial court erred in ignoring the basic foundation of the provisions of the Negotiable Instruments Act and the importance of the presumption associated with the Act. The court held that the presumption under Section 139 is a presumption of law and shifts the burden of proof onto the accused. The accused can rebut the presumption by adducing evidence showing the reasonable possibility of the non-existence of the presumed fact. However, the rebuttal does not have to be conclusively established but must be such that the court either believes the defence to exist or considers its existence to be reasonably probable.
Issues: 1. Whether the trial court erred in acquitting the appellant without appreciating the presumption under Section 139 of the Negotiable Instruments Act? 2. Whether the appellate court was justified in setting aside the acquittal and convicting the appellant based on the presumption under Section 139 and the failure of the appellant to rebut the presumption?
Ratio Decidendi: 1. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law and shifts the burden of proof onto the accused. 2. The accused can rebut the presumption by adducing evidence showing the reasonable possibility of the non-existence of the presumed fact. However, the rebuttal does not have to be conclusively established but must be such that the court either believes the defence to exist or considers its existence to be reasonably probable. 3. In the present case, the appellant failed to create a probable defence or rebut the prosecution evidence. Therefore, the appellate court was justified in setting aside the acquittal and convicting the appellant.
Final Decision: The appeal was dismissed, and the judgment of the appellate court was affirmed.
JUDGMENT
Tirthankar Ghosh, J. - The present appeal has been preferred against the judgment and order of conviction and sentence dated 06.05.2022 passed by the Learned Additional District and Sessions Judge, 2nd Fast Track Court, City Sessions Court, Bichar Bhawan, Calcutta in criminal Appeal No. 195 of 2019 arising out of Case no. C-2379 of 2001, wherein the learned Appellate Court was pleased to set aside the order of acquittal passed under Section 138 of the Negotiable Instruments Act by the Learned Metropolitan Magistrate, 5th Court, Calcutta in complaint case no. C-2379 of 2001 and convicted the appellant, thereby sentencing him to pay fine of Rs.3,40,000/- i.d. to suffer Simple Imprisonment for 6 months. By the same order the Appellate Court directed that the whole amount of fine should be paid and disbursed to the complainant as compensation.
2. Complaint case no. C-2379 of 2001 was initiated against the appellant/accused under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'N.I. Act'). The allegations made in the petition of complaint were to the extent that appellant was the proprietor of M/s Sova Builders which carried on business as dealer and stockists of the complainant company namely, Birla Corporation Ltd. The complainant company in due course of business supplied cement and raised bills and as such a current and continuous account was maintained by the complainant company. A sum of Rs.1,70,000/- was due and payable by the accused persons to the complainant and as such in discharge of the said liabilities an account payee cheque bearing no. 108106 dated 31.03.2001 for Rs.1,70,000/- drawn on Central Bank of India, Park Circus, Calcutta was issued in favour of the complainant company. The complainant company deposited the said cheque with its banker UCO Bank, 10, B.M.T. Sarani, Kolkata-700001, however, the said cheque when presented was dishonoured with the remarks 'funds insufficient/full cover not received' which revealed from the bank memo dated 03.04.2001. The intimation was received by the complainant on 4th April, 2001. The complainant company thereafter sent a demand notice to the accused person on 11th April, 2001 by Registered Post with A/D demanding the amount covered by the dishonoured cheque to be paid within 15 days of receipt of the notice. The accused received the notice but failed and neglected to make any payment.
3. On the complaint being filed, cognizance of the offence was taken by the learned Magistrate and after recording the initial evidence summons were issued, pursuant to which accused person appeared before the learned trial Court. In course of the proceedings the accused was examined under Section 251 of the Code of Criminal Procedure and the substance of accusation was read over to him, to which he pleaded not guilty and claimed to be tried.
4. The complainant in order to prove its case examined the sole witness Vijoy Kumar Prahaladka (PW1) and relied upon the following documents being Ext.1, Cheque bearing No.108106 dated 31.03.2001; Ext.2, Bank Returned Memo dated 03.04.2001; Ext.3, general notice for information dated 11.04.2001; Ext.3/1, demand notice dated 11.04.2001; Ext.4, Acknowledgement card and Ext.5, letter of authority dated 06.01.2003
5. The learned Magistrate on an appreciation of the evidence placed by the prosecution observed that no documents except exhibits were filed at the instance of the complainant/prosecution. The documents so relied upon did not reflect or relate to the existing liabilities at the time of issuance of the cheque. According to the trial Court the complainant in his deposition stated that a ledger account was maintained, but no ledger account was produced before the Court to show that there was an existing liability of Rs.1,70,000/- and the same is receivable for the purpose of issuance of the cheque. Learned Magistrate after assigning the reasons that no corroborating witnesses were produced by the complainant or any scrap of
The presumption under Section 139 of the Negotiable Instruments Act shifts the burden of proof onto the accused, and the accused can rebut the presumption by adducing evidence showing the reasonable ....
The appellate court has the authority to review evidence in acquittal appeals, but must respect the presumption of innocence and ensure that any findings against the accused are based on substantial ....
The presumption of debt under Section 139 of the Negotiable Instruments Act is not rebutted by mere denial; the accused must provide credible evidence to support their defense.
Presumption under Section 139 NI Act that cheque is for debt discharge holds unless rebutted by preponderance of probabilities; trial acquittal reversed for perversely ignoring defence witness confir....
The presumption under Section 118 of Act, 1881 comes into being that until the contrary is proved, every negotiable instrument was drawn for consideration.
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