Rameshwar Dass Devi Dayal (P) Ltd. vs Consolidated Steels And Alloys ...
2006 Latest Caselaw 1759 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This revision petition has been filed challenging the order datd 13.2.2002 passed by the learned Additional Sessions Judge whereby the respondents 2 to 4 have been discharged of the offences committed under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. The impugned order was, itself, passed in a revision petition preferred by the accused against the order dated 1.6.2001 passed by the learned Metropolitan Magistrate whereby notice under Section 251 Cr.P.C. had been issued against them in view of the alleged offences committed by them under Section 138 read with Section 141 of the Negotiable Instruments Act (hereinafter referred as 'the said Act').

2. The question that has been primarily raised before this Court is whether the cheque for Rs 40,80,100/- issued by respondent No. 2 in favor of the petitioner on 3.9.1999 was for the discharge, in whole or in part, of any debt or other liability. This question has been so raised because, by virtue of the impugned order, the learned Additional Sessions Judge was of the view that the said cheque was not issued for the discharge of any debt or other liability. According to the learned Counsel for the petitioner, this is an erroneousconclusion whereas the learned Counsel appearing on behalf of the respondents 2 to 4 supports the findings returned by the learned Additional Sessions Judge.

3. The facts are that the respondent No. 2 entered into a transaction with Steel Authority of India Limited for which purpose the respondent No. 2 was required to extend a bank guarantee in the sum of Rs 40,00,000/-. The respondent No. 2 did not have the wherewithal at that point of time to arrange for a bank guarantee for the said sum of money. In these circumstances, the respondent No. 2 approached the petitioner and requested the petitioner to provide security to the bank so that the bank could extend the guarantee in favor of Steel Authority of India on behalf of the respondent No. 2. The petitioner, after some persuasion, agreed to do so. The petitioner secured the bank - J. and K. Bank Limited, South Extension Part-II Branch, New Delhi by providing margin money to the extent of Rs 14,00,000/- and also other securities which were already with the bank. On the basis of the margin money extended by the petitioner and the other securities of the petitioners that were alreadyavailable with the bank, a bank guarantee for the amount of Rs 40,00,000/-was extended in favor of Steel Authority of India Limited on 5.6.1999 on behalf of the respondent No. 2. It is the petitioner's contention that sometime in August, 1999, the petitioner came to know that the Steel Authority of India was not very happy with the working of the respondent No. 2 in the transaction that they had entered into and that there was imminent danger of the bank guarantee being invoked by Steel Authority of India. In these circumstances, the petitioner is said to have approached the respondent No. 2 and requested the respondent No. 2 and its Directors, i.e. respondents 3 and 4 that the petitioner should be secured because the bank guarantee could be invoked at any point of time and the petitioner had already extended itself by providing margin money of Rs 14,00,000/- and by putting various securities at the mercy of the bank. The respondent No. 2, as a consequence of these submissions made by the petitioner, agreed to give a cheque in favor of the petitioner to the extent of Rs 40,80,100/- on 3.9.1999. Although, the bank guarantee was for the amount of Rs 40,00,000/-, an additional sum of Rs 80,100/- was also included in the cheque inasmuch as that was the amount of commission charges paid by the petitioner for arranging the bank guarantee. On receipt of the cheque, the petitioner presented the same on 4.9.1999. The same was dishonoured, with the bank returning this cheque with the endorsement 'insufficient funds'. Thereafter, the requisite notice under the said Act was issued on 17.9.1999. In the meanwhile, on 15.9.1999 the Steel Authority of India had also invoked the bank guarantee to the extent of approximately Rs 32,00,000/-. It is not in dispute that upon the invocation of the bank guarantee, Steel Authority of India was paid the said amount of approximately Rs 32,00,000/- by the bank and the same was debited to the account of the petitioner. Since the cheque had been dishonoured and despite the service of notice, the respondents 2, 3 and 4 had not paid the amount of the cheque, the petitioner filed a complaint which culminated in the issuance of the notice dated 1.6.2001 under Section 251 Cr.P.C. by the learned Metropolitan Magistrate. In revision that order was set aside and the learned Additional Sessions Judge discharged the respondents 2, 3 and 4 of the offences under Section 138 read with Section 141 of the said Act. It is in these circumstances, that the question has arisen as to whether the cheque that was issued by respondent No. 2 in favor of the petitioner was for the discharge, in whole or in part, of any debt or other liability.

4. The learned Counsel for the petitioner referred to the decision of the Supreme Court in the case of Union of India v. Raman Iron Foundry : and in particular, he referred to paragraph 7 thereof where the Supreme Court had discussed the scope and ambit of the word 'debt'. Paragraph 7 of the said decision reads as under:

7. The first thing that strikes one on looking at Clause 18 is its heading which reads: 'Recovery of Sums Due'. It is true that a heading cannot control the interpretation of a clause if its meaning is otherwise plain and unambiguous, but it can certainly be referred to as indicating the general drift of the clause and affording a key to a better understanding of its meaning. The heading of Clause 18 clearly suggests that this Clause is intended to deal with the subject of recovery of sums due. Now a sum would be due to the purchaser when there is an existing obligation to pay it in praesenti. It would be profitable in this connection to refer to the concept of a 'debt', for a sum due is the same thing as a debt due. The classical definition of 'debt' is to be found in Webb v. Stenton (1883) 11 QBD 518 where Lindley L.J., said:

... a debt is a sum of money which is now payable or will become payable in the future by reason of a present obligation. 'There must be debitum in praesenti; solvendum may be in praesenti or in futuro' that is immaterial. There must be an existing obligation to pay a sum of money now or in future. The following passage from the Judgment of the Supreme Court of California in People v. Arguello (1869) 37 Calif. 524, which was approved by this Court in Kesoram Industries v. Commr. of Wealth Tax , clearly brings out the essential characteristics of a debt:

Standing alone, the word 'debt' is as applicable to a sum of money which has been promised at a future day as to a sum now due and payable. If we wish to distinguish between the two, we say of the former that it is a debt owing, and of the latter that it is a debt due.

This passage indicates that when there is an obligation to pay a sum of money at a future date, it is a debt owing but when the obligation is to pay a sum of money in praesenti it is a debt due. A sum due would, therefore, mean a sum for which there is an existing obligation to pay in presenti, or in other words, which is presently payable. Recovery of such sums is the subject-matter of Clause 18 according to the heading. That is the dominant idea running through the entire Clause 18.

5. The learned Counsel for the petitioners also referred to the decision of the Supreme Court in the case of ICDS Ltd. v. Beena Shabeer and Anr. . The paragraphs which he referred to are paragraphs 10 and 11. He then referred to the findings of the Additional Sessions Judge at pages 27, 28 and 29 of the paper book wherein the learned Additional Sessions Judge indicated that liability to pay the bank guarantee amount arose only when the bank guarantee was invoked and as the cheque had been presented for encashment prior to the invocation of the bank guarantee, there was no debt or other liability 'existing' for the discharge of which the cheque has been issued. The learned Counsel for the petitioner submitted that this finding of the learned Additional Sessions Judge is erroneous inasmuch as in this case there are several relationships which have to be taken account of. The first relationship is between the respondent No. 2 and Steel Authority of India, which is a contractual relationship with which the petitioner is not concerned. The second relationship is between the bank and Steel Authority of India which arose as result of the bank guarantee extended, on behalf of respondent No. 2, in favor of Steel Authority of India, with which, also, the petitioner is not concerned. The third relationship is between respondent No. 2 and the bank. Normally, in cases of bank guarantees, this relationship is a direct relationship. However, in this case, what has happened is that this relationship has been split into two separate relationships. The first, being between the petitioner and the respondent No. 2 and the second being, between the petitioner and the bank. It is as a consequence of the relationship between respondent No. 2 and the petitioner, that the petitioner requested the bank to extend the bank guarantee on behalf of respondent No. 2. According to the learned Counsel for the petitioner, the moment the petitioner submitted margin money and made its securities available to the bank, a liability was created because at that very point of time, the bank guarantee could be invoked and its margin money as well as the securities furnished would be liable to be appropriated by the bank in discharge of the bank guarantee. He, therefore, submitted that the issuance of cheque on 3.9.1999 was towards the discharge of the liability which the respondent No. 2 had towards the petitioner inasmuch as the petitioner had extended its resources on behalf of the respondent No. 2. It is in this context that the learned Counsel for the petitioner submits that a case for proceeding under Section 138 read with Section 141 of the said Act was made out and the learned Additional Sessions Judge has erred in discharging respondents 2 to 4.

6. The learned Counsel for the petitioner also referred to the decision in the case of Promod Vijay Khullar v. State and Anr. 2005 (1) JCC (NI) 97, which is a decision of a learned Single Judge of this Court, to indicate that the question whether the cheque was given by way of security or by way of discharge of a liability was a question of fact which requires evidence to be led and, therefore, the matter could not be shut out at this stage.

7. The learned Counsel for the respondents submitted with reference to the statement of Devi Dayal Garg (CW.1) that the cheque was given by way of assurance to the petitioner in case the bank guarantee was encashed. He referred to the statement made by CW.1 to the following effect:

The accused No. 2 assured that the company would give a cheque, so that the complainant will not have to worry in case guarantee encashed.

Therefore, the learned Counsel for the respondents submitted, the cheque was extended only to cover the contingent liability which would arise upon the invocation of the bank guarantee. And, the date on which the cheque was given there was no existing liability or debt and, therefore, the provisions of Section 138 would not come into play. The learned Counsel for the respondents also submitted that even the bank guarantee has been invoked only to the extent of Rs 32,00,000/- and at no point of time, there was a liability to pay Rs 40,80,100/- which is the amount of the cheque and, therefore, Section 138 of the said Act cannot be pressed into service by the petitioner.

8. While the entire focus of the learned Counsel for the parties and, indeed, the learned Additional Sessions Judge, was on the question of whether the cheque had been issued in discharge of 'any debt or other liability', in my opinion, the more important question is whether the learned additional Sessions Judge could have interfered in exercise of his revisional jurisdiction with the order of issuance of notice under Section 251 Cr.P.C passed by the learned Metropolitan Magistrate on 1.6.2001. However, since the issue of whether the cheque for Rs 40,80,100/- issued by the respondent No. 2 in favor of the petitioner on 3.9.1999 was for the discharge, in whole or in part, of any debt or liability, has been raised, I would firstly deal with this. To understand and appreciate as to what is meant by the expression 'any debt or other liability', it would be appropriate to examine the meaning of the word 'debt'. It has already been pointed out above that the Supreme Court in the case of the Union of India v. Raman Iron Foundry (supra) had indicated two concepts of 'debt'. An obligation to pay a sum of money at a future date, is a debt 'owing' but, where the obligation to pay a sum of money in praesenti is involved, it is a debt 'due'. The Supreme Court also approved the meaning ascribed to the word 'debt' by the cases referred to in Raman Foundry (supra) to the effect that the word 'debt' is as applicable to a sum of money which has been promised at a future date as to a sum now due and payable. It was observed that if a distinction were to be made between the two, the former kind would be known as a 'debt owing' and the latter would be known as a 'debt due'. Clearly, a debt is not only a sum of money which is payable at the present but also includes a sum of money which would become payable in future by reason of a present obligation. There must be a present obligation, the question as to whether it is payable now or later is not of much consequence.

9. The Supreme Court had also examined the expression 'debt' in J. Jermons v. Aliammal in the following manner:

...Ordinarily, 'debt' means money that is owed; an existing obligation to pay a certain amount; a sum of money due from one person to another. Debts can be classified, having regard to the criteria for payment, into three categories:

(i) debt which has become due and is payable at present (debitum in praesenti) e.g. in monthly tenancy, rent becomes due after the expiry of each month like rent for the month of January becoming due and payable on February 1;

(ii) debt which has become due but is payable at a future date (debitum in praesenti solvendum in futuro); in the above example if under an agreement of tenancy rent is payable on the 15th of the following month, the rent for January becomes due on February 1, but is payable on February 15; and

(iii) contingent debt which becomes payable on the happening of a certain event which may or may not occur; in the above instance the rent for the month of January will not be a debt in the preceding month of December for the tenant may or may not reside in the next month. Thus, rent that has not become due is not debt. It follows that rent for the unexpired period of lease is not debt....

Again, in CIT v. Lucas T.V.S. Ltd. (2001) 10 SCC 544 [at page 545], the Supreme Court considered the meaning of the expression 'debt'. The Supreme Court observed as under:

3. Our attention was drawn to the Judgment of this Court in Kesoram Industriesand Cotton Mills Ltd. v. CIT. this Court there referred to English Judgments and the Judgments of this Court to determine what a debt was. It held that a debt was a sum of money which is now payable or will become payable in future by reason of a present obligation. It added that a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency happened. But if there is a debt the fact that the amount is to be ascertained does not make it any the less a debt if the liability is certain and what remains is only the quantification of the amount.

In short, a debt owed within the meaning of Section 2(m) of the Wealth Tax Act can be defined as a liability to pay in praesenti or in futuro an ascertainable sum of money.

4. What is relevant for our purpose is that a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency has happened. In the present case, the liability of the respondent to Lucas (England) is to issue to Lucas (England) equity shares of a value equivalent to the amount advanced by Lucas (England) for the plant and machinery. It is only if, for any reason, the shares cannot be allotted that the question of compensating Lucas (England) in cash might arise. We do not think that, in these circumstances, it can be said that there was a debt owed by the respondent to Lucas (England) to be taken into account for the purposes of computing capital under Section 80-J.

10. A reading of the aforesaid extracts indicates that a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency has happened. Now, coming back to the facts of the present case, there are two ways of looking at the same. One way is to look at the issuance of the cheque as a liability depending upon a contingency. The contingency being the invocation of the bank guarantee. If that is proved to be the case then it would certainly not be a 'debt'. But, there is difficulty. The expression used in Section 138 is not limited to 'debt' alone but, it extends to 'any other liability'. The expression used in Section 138 is wider than that of a debt simpliciter and could possibly cover such a liability as is involved in the present case. In this connection, it would be instructive to note the observations of the Supreme Court in ICDS Ltd (supra), a decision referred to by the learned Counsel for the petitioner:

10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words 'Where any cheque'. The abovenoted three words are of extreme significance, in particular, by reason of the user of the word 'any' the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favor of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned Judgment.

11. The issue as regards the coextensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favor of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act. 'Any cheque' and 'other liability' are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. Any contra- interpretation would defeat the intent of the legislature. The High Court, it seems, got carried away by the issue of guarantee and guarantor's liability and thus has overlooked the true intent and purport of Section 138 of the Act. The Judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus do not lend any assistance to the contentions raised by the respondents.

The other way of looking at the facts is that the cheque was issued not by way of contingency but by way of discharge of an existing obligation which the respondent No. 2 had towards the petitioner. This can be understood by having are look at the factual background. The petitioner had extended margin money of Rs 14 lakhs as well as offered securities as collateral for the bank guarantee to be issued by the bank on behalf of the respondent No. 2. The bank guarantee charges were also paid by the petitioner. When the petitioner got to know of the imminent danger of the invocation of the bank guarantee it approached the respondent No. 2 and expressed its desire to get out of this obligation which it had towards the bank. The only way in which the petitioner could have gotten out of this obligation was by the respondent No. 2 making a payment to the petitioner as a cover for the obligation which the petitioner had already incurred on its behalf. The money representing the cheque amount could be placed at the disposal of the bank in exchange of the release of the margin money and other securities which the petitioner had placed at the disposal of the bank. In that way, if the bank guarantee was to to be invoked, the petitioner's funds and securities would not be locked up. Significantly, the cheque amount also included the amount of bank charges which the petitioner had incurred on behalf of the Respondent No. 2. In these circumstances, the cheque could easily represent the discharge of the obligation which the respondent No. 2 had towards the petitioner on account of the petitioner extending the margin money, paying the bank guarantee charges and submitting securities by way of collateral for the bank guarantee. This being the case, the transaction would be covered even by the expression 'debt' as explained above, inasmuch as it was in discharge of a present obligation.

11. So, we have two possible ways of looking at the facts. One leading to the possibility of the cheque having been issued not in discharge of a 'debt or other liability' and, the other, clearly indicating that the cheque was for the discharge of a 'debt or other liability'. Which is the legitimate way can only be ascertained by evidence and upon proof of the alleged facts. But this could only be done in the course of a trial. Unfortunately what has happened in the present case is that as soon as the learned Metropolitan Magistrate issued a notice under Section 251 Cr.P.C the respondents filed a revision petition and the learned Additional Sessions Judge allowed that petition and discharged them of the charges under Section 138 and 141 of the said Act. To my mind, the learned additional Sessions Judge has erred in law in allowing the revision petition and in discharging the respondents. This was a matter which required evidence and evidence could only come at the stage of trial. Without the evidence as to the exact nature of the cheque the learned additional Sessions Judge ought not to have discharged the respondents.

12. Added to this is the question of the presumption which arises by virtue of Section 139 of the negotiable instruments act which, unfortunately, has been completely ignored by the court below. At this point, an examination of Section 138 as well as 139 of the said Act would be relevant and therefore the same are set out here in below:

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 provision of this Act, be punished with imprisonment for a term which may extend to one year, 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, within fifteen 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 purpose of this section, 'debt or other liability' means a legally enforceable debt or other liability.

139. 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.

A reading of Section 139 makes it clear that the legislature has issued a mandate that it 'shall' be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, for the discharge, in whole or in part of any debt for other liability. It has to be presumed that the cheque was issued in discharge of a debt or other liability. There is no doubt that this presumption can be rebutted but, it has to be rebutted by adducing evidence and the burden of proof is also on the person who wants to rebut the presumption. The question of proof and rebuttal can only arise at the stage of trial. Therefore, it was not proper for the learned Additional Sessions Judge to have interfered with the notice under Section 251 Cr.P.C issued by the learned Metropolitan Magistrate and he ought not to have discharged the respondents of the offences under Section 138 and 141 of the said Act.

13. The question of the necessity, in law, of raising such a presumption has been well settled by various decisions of the Supreme Court. In Hiten P. Dalal v. Bratindranath Banerjee , the Supreme Court observed as under:

21. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides that:

139. 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.

The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.

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 1 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. at p. 65, para 14.) 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 exist, 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 matters 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 defense that the court must either believe the defense to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.

14. In Maruti Udyog Ltd. v. Narender , the Supreme Court held:

2. In view of the express provision of Section 139 of the Negotiable Instruments Act, 1881, a presumption must be drawn that the holder of the cheque received the cheque, of the nature referred to in Section 138, for the discharge of any debit or other liability unless the contrary is proved. Therefore, the High Court was not justified in entertaining and accepting the plea of the accused-respondent at the initial stage of the proceedings and quashing the complaints filed by the appellant. We, therefore, allow these appeals, set aside the impugned orders of the High Court and direct the trial court to proceed with he complaints in accordance with law.

This was reinforced in M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd. , where the Supreme Court held as under:

15. In the case of Maruti Udyog Ltd. v. Narender 1 this Court has held that, by virtue of Section 139 of the Negotiable Instruments Act, the court has to draw a presumption that the holder of the cheque received the cheque for discharge of a debt or liability until the contrary is proved. this Court has held that at the initial stage of the proceedings the High Court was not justified in entertaining and accepting a plea that there was no debt or liability and thereby quashing the complaint.

16. A similar view has been taken by this Court in the case of K.N. Beena v. Muniyappan 2 wherein again it has been held that under Section 139 of the Negotiable Instruments Act the court has to presume, in a complaint under Section 138, that the cheque had been issued for a debt or liability.

17. There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability.

Finally, in Goaplast (P) Ltd. v. Chico Ursula D'Souza , theSupreme Court held as under:

6. In the present case the issue is very different. The issue is regarding payment of a post-dated cheque being countermanded before the date mentioned on the face of the cheque. For the purpose of considering the issue, it is relevant to see Section 139 of the Act which creates a presumption in favor of the holder of a cheque. The said section provides that:

139. 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.

Thus it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption....

15. An examination of these decisions of the Supreme Court in the ackground of the provisions of Section 139 of the said Act makes it abundantly lear that the courts are duty bound to raise the presumption and that resumption can only be rebutted by adducing evidence. The stage of adducing vidence comes at the stage of trial. Therefore, once the presumption is raised, as it has to be, the accused cannot be discharged without the case roceeding to trial. Section 139 makes it mandatory for the courts to raise the resumption that the holder of a cheque received the cheque, of the nature eferred to in Section 138 of the Act, for the discharge, whole or in part, of ny debt or other liability. Once it is established that the cheque received was the nature referred to in Section 138 of the act, the presumption mmediately arises. And, once the presumption is raised it can only be rebutted y the person who wants to rebut the presumption by adducing evidence and, that, an only be done at the stage of trial. The court cannot short-circuit the rocess by discharging the accused at the stage of summoning when a presumption such as this is raised. That would amount to permitting the accused to go scot- free without having discharged the burden cast upon them by the statute and without the accused producing any evidence in rebuttal.

16. In view of the discussion above, the impugned order dated 13.2.2002 passed by the learned Additional Sessions Judge is set aside and the the order dated 1.6.2001 passed by the learned Metropolitan Magistrate is revived. The matter now be placed before the learned Metropolitan Magistrate for proceeding further in accordance with law. This revision petition is allowed.