Vijay vs Ramavatar And Anr.
2001 Latest Caselaw 830 Bom

JUDGMENT

1. The applicant had filed a complaint against non-applicant No. 1 for offences under sections 406, 417/420, Indian Penal Code and Section 142 of the Negotiable Instruments Act (hereinafter called the said Act). The Magistrate issued process after examining the complaint under Section 200, Criminal Procedure Code. The process was issued under Sections 406, 417, 420, Indian Penal Code and Section 138 of the Negotiable Instruments Act vide order dated 26-12-1989. The non-applicant No. 1 challenged this issue of process by filing Criminal Revision No. 74/1990, before this Court, and this Court vide order dated 13-9-1990, dismissed the said revision. Thereafter, the applicant examined himself before charge and vide order dated 12-7-1995, the J.M.F.C., Gondia, ordered framing of charge against the non-applicant-No. 1, under sections 406, 417, 420, Indian Penal Code read with Section 138 of the Negotiable Instruments Act. This order of the Magistrate was challenged by non-applicant No. 1 before the Sessions Court and the Learned Additional Sessions Judge, Bhandara, vide order dated 5-1-1996, allowed the revision and discharged the non-applicant No. 1 under Section 245, Criminal Procedure Code. This order is subject matter of challenge in this revision.

2. The non-applicant No. 1 was duly served but no one has appeared on his behalf today when the arguments were heard. Learned Advocate for the applicant and learned APP for non-applicant No. 2 were heard.

3. Learned Advocate for the applicant took me through the record and gave the background of the case, including the defence version that the cheque book containing some blank cheques with signatures of non-applicant No. 1 had been stolen, in respect of which a complaint was filed with the police, but nothing materialized in the said complaint, as also that the non-applicant No. 1 had published a notice in the newspapers on 4-9-1989. He pointed out that the respondent No. 1 in reply dated 22-9-1989 to the notice as also in the revision memo in ground 10 had admitted his liability to pay, but that the dispute was restricted to extent of liability. According to him, the evidence of the applicant was not shaken during cross-examination and the statutory presumption under Section 139 of the said Act is sufficient to frame charge against non-applicant No. 1, but, the learned Additional Sessions Judge, took erroneous view of the provisions of Section 245 Criminal Procedure Code, while stating that at the stage of framing of charge, it has to be seen that there is definite conclusion that the case would end in conviction or that the evidence is sufficient to convict the accused. He also urged that the learned Additional Sessions Judge, erred in coming to the conclusion there was no direct evidence to prove that the cheque was given by non-applicant No. 1 to the applicant, since the cheque in question has been brought by one Arun Kokane, who was not examined. According to learned Advocate for the applicant, the learned Additional Sessions Judge, also erred in coming to the conclusion on the basis of evidence on record that the presumption under Section 139 of the said Act had been successfully rebutted by preponderance of probabilities by non-applicant No. 1. After placing reliance on a number of authorities, learned Advocate for the applicant urged that the order of the learned Additional Sessions Judge discharging non-applicant No. 1 cannot be sustained and the same be set aside. I shall refer to these rulings in the next paragraph. Learned APP, supports the learned Advocate for the applicant and submits that the order of discharge is liable to be set aside in the light of evidence on record as also law on the subject.

4. On the question that the learned Additional Sessions Judge had taken a erroneous view of Section 245 Criminal Procedure Code, learned Advocate for applicant has placed reliance on State of Maharashtra v. Priya Sharan Maharaj and Ors., , which in turn relies upon the earlier Apex Court judgment in N. S. Punjabi v. Jitendra Bijjaya , The Apex Court in State of Maharashtra v. Priya Sharan Maharaj and Ors., (supra), has laid down :--

"The law on the subject is now well-settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bijjaya, , that at sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."

5. Learned Advocate for the applicant then relied upon Dalmia Cement (Bharat) Ltd. v. M/s Galaxy Trades and Agencies Ltd. and Ors. 2000(1) SCALE 243, in order to point out the spirit behind the said Act and particularly, Section 130 of the said Act. In this respect, the Apex Court has laid down :

"The Act was enacted and Section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to negotiable instrument is the law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments, including a cheque, the trade and commerce activities, in the present day would, are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to another. To achieve the objectives of the Act, the legislature has, in its wisdom, thought it proper to make such provision in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by restoring to innovative measures and methods are to be discouraged, less it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country.

6. It is pertinent to note that the Apex Court in para 4 of the said judgment has pointed out that Section 138 of the Act makes a civil transaction to be in offence by fiction of law. The Apex Court has pointed out that Section 139 of the said Act refers to presumption that unless the contrary is proved, the holder received the cheque under Section 138 for the discharge in whole or in part or of any debtor other liability.

7. On the question of presumption, the learned Advocate for the applicant has also relied upon Hiten P. Dalai v. Bratindranath Banerjee, 2001(4) SCALE 275, wherein it is laid down :

"22. Because both sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn," as noted in State of Madras v. A Vaidyanatha Iyer, , 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, 'It, introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.

23. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the' "prudent man".

8. Learned Advocate for the applicant has also relied upon Bratindranath Banerjee, Director, Standard Chartered Bank v. Hiten P. Dalai, , on the question of discharge of burden by accused by preponderance of probabilities and he specifically relies on the observation made in para 41 that the Court cannot render a Statutory Presumption sterile by a process of convoluted logic or by giving benefit of doubt and that the quantum and nature of proof required to discharge the burden would depend upon facts and circumstance of each case. Learned Advocate for the applicant has also relied Upon para 23 of this judgment wherein the object of the Act and the other relevant provisions have been dealt with.

9. According to learned Advocate for the applicant, the question whether blank cheque had been issued or whether the same was written by the person who issued the cheque or whether the amount due was less than the amount mentioned in the cheque are all matters of defence which can be taken during course of trial and in support of his submission reliance has been placed on Vinod Tanna and Anr. v. Zaheer Siddiqui and Ors., 2001 (2) Mh.LJ. 714.

10. In Criminal Revision 48 of 1995 filed by respondent No. 1 before Sessions Court, Gondia, respondent No. 1 who was petitioner therein, has stated in ground No. 10 as under :

"That the L. LC. has failed to appreciate the reply notice of petitioner where the petitioner admitted his liability to pay the respondent after due verification of accounts and after receipt of the amount from Z.P. as agreed and thereby the question of early issue of cheque by petitioner does not arise."

11. The case of the applicant is that the cheque was issued by respondent No. 1. The case of the respondent No. 1 is that some blank cheques with signatures of respondent No. 1 had been stolen and that the applicant has used one of the said cheque in support of his claim. Section 118 of the said Act deals with presumption as to negotiable instrument and reads as under:

"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, endorsed, negotiated or transferred, was accepted, endorsed, 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 endorsements -- that the endorsements 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 contained 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."
 

This Section falls under Chapter XIII, which deals with Special rule of evidence. Section 139 of the Act provides for presumption in favour of holder and reads as under:
  "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, or any debt or other liability." 
 

12. The complainant had examined himself and the complainant was
cross-examined   at   length.   After  going   through  the  evidence   of  the
complainant it cannot be said that the presumption has been rebutted or that at
this stage, the theory of theft profounded by respondent No. 1 could be
accepted. In the light of the evidence on record and law on the subject, the
impugned order dated 5-1-1996 of the Additional Sessions Judga, Gondia
cannot be sustained and the order of discharge in the circumstance is liable to
be set aside. The said order is accordingly set aside. The Magistrate shall now
proceed to frame charge against respondent No. 1 and proceed with the trial

expeditiously. The matter pertains to a cheque issued in the year 1989 and a decade has already been passed. Therefore, it is considered necessary that direction be given to J.M.F.C., Gondia to expedite the hearing of the matter and in any case dispose of the same within 6 months of the receipt of this order by him. A copy of this order be forwarded to J.M.F.C., Gondia, along with R and P expeditiously, and the office shall ensure that the same is received by J.M.F.C., Gondia by 15th of next month. The Magistrate shall be directed to report compliance of the matter, and the matter be placed on order board, after 7 months from today.

The revision is allowed in aforesaid terms.

13. Revision allowed.