Delhi High Court

Shri Ashok Kumar vs Gulshan Kumar on 11 September, 2009

Author: Rajiv Shakdher

+*                 THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment reserved on : 12.08.2009
%                               Judgment delivered on : 11.09.2009

+                     Crl.L.P. 10/2006


SHRI ASHOK KUMAR                                       ..... Appellant

                                    versus

GULSHAN KUMAR                                          .....Respondent

Advocates who appeared in this case:

For the Appellant : Mr.Sumit Kr. Khatri & Ms Rakhi, Advocates For the Respondent : Mr. P.S. Kasana, Advocate

CORAM :-

HON'BLE MR JUSTICE RAJIV SHAKDHER

1. Whether the Reporters of local papers may be allowed to see the judgment ?

2.      To be referred to Reporters or not ?                 Yes
3.      Whether the judgment should be reported
        in the Digest ?                                      Yes

RAJIV SHAKDHER, J

1.      Leave granted.

2. This appeal is directed against the judgment of the learned

Metropolitan Magistrate (in short „Magistrate‟)dated 20.10.2005

whereby the respondent/accused has been acquitted.

3. The case set up by the appellant/complainant before the trial

court is as follows:-

4. The appellant/complainant is a proprietor of a concern by

the name of M/s Gaba Trading Company. The appellant/

complainant is in the business of „cloth‟. In the course of his

business, the appellant/complainant sold a certain quantity of

cloth to the respondent/accused vide bill no. 7 dated 09.05.2001.

The said bill was for a sum of Rs 65,000/. In satisfaction of the

said debt, i.e., the afore-mentioned bill, the respondent/accused

issued two cheques bearing no. 658024, dated 12.05.2001, drawn

on UCO Bank, Dr Mukherjee Nagar, Delhi, in the sum of

Rs. 15,000/-, and cheque bearing No. 599135, dated 15.10.2001,

also drawn on UCO Bank, Dr. Mukherjee Nagar, Delhi, in the sum

of Rs 50,000/-. The said cheques were deposited by the

appellant/complainant with his banker on 15.10.2001. However,

to his surprise, both the cheques were dishonoured, and

consequently, returned by his banker, alongwith a cheque return

memo. This propelled the appellant/complainant to trigger the

proceedings under Section 138 of the Negotiable Instruments Act,

1881 (hereinafter referred to as the „N.I. Act‟). Consequently, a

statutory notice demanding from the respondent/accused, the

payment in respect of the afore-mentioned cheques was issued on

22.10.2001, by the appellant/complainant. The acknowledgment

card was received by the appellant/ complainant, on 27.10.2001.

5. On failure of the respondent/accused to pay the money

within a period of 15 days of service of the legal notice issued by

the appellant/complainant, an offence under the provisions of

Section 138 of the N.I. Act, stood committed. Resultantly, a

criminal complaint was lodged.

6. At this juncture, it would be perhaps pertinent to note, that

the complaint was lodged in the Court of the learned Magistrate

on 01.12.2001, whereupon, it was registered. By an order dated

23.03.2002, summons in this case were issued by the trial court.

On 18.07.2002, the respondent/accused alongwith his counsel

entered appearance. On an application moved by the accused, he

was admitted to bail on his furnishing a bond in the sum of

Rs 65,000/- and a surety of a like amount. The matter was posted

for 31.07.2002. On the said date, the following order was passed:-

"Present:- Counsel with complainant.

Accused with counsel.

Compromise not effected. Counsel for accused requests for adjournment. Put up 05.08.2002 for compromise or arguments on notice u/s 251 Cr.P.C. L/O given.

sd/-

ASJ 31.7.2002."

7. Thereafter the matter was posted for 05.08.2002 when the

accused stated before the Court that he was willing to pay

Rs 65,000/- to which the appellant/complainant gave his consent.

For effectuating a compromise, the matter was posted for hearing

on 05.09.2002. The proceedings of 05.09.2002 read as follows:-

"Present: Ld. counsel for the parties alongwith the parties.

Accused has dragged (s.i.c. retracted) out from his statement made in the Court on 5.08.2002. Its effect will be seen at the proper time. On the contrary, he has moved an application for recalling of summoning order. Copy given to the complainant.

Arguments on 12.09.2002.

sd/-

ASJ 31.7.2002."

8. It transpires that on 05.09.2002, when the matter came up

before the trial court, the accused resiled from the statement

made on 05.08.2002, and as a matter of fact, moved an application

for recall of the summoning order. The contents of the application

have a bearing on the case, which has been discussed by me in the

latter part of my judgment. To cut the narrative with respect to

proceedings in Court short, on 28.09.2002, the trial court heard

the submissions of the counsel for the respondent/accused on his

application for recalling the summoning order. The court came to

the conclusion that while the matter required proof, a prima facie

case was made out against the accused under Section 138 of the

N.I. Act. Consequently, the court proceeded to frame a notice

under Section 251 of the Cr.P.C against the respondent/accused

keeping all questions open.

9. In support of his case, the appellant/complainant (CW1)

examined himself; the Manager of the drawer Bank Mr A.S.

Mehmi, (CW2), as also, the official of the drawee bank Rajender

Kr. Rastogi (CW3). On the other hand, the respondent/accused in

addition to getting his statement recorded under Section 313 of

the Cr.P.C. also examined himself as a defence witness (DW1),

alongwith one, Harish Kumar (DW2). The trial court, on perusal of

the evidence on record, came to the conclusion that the

appellant/complainant had failed to prove his case beyond a

reasonable doubt. It granted the benefit of doubt to the accused

and proceeded to acquit the accused of the charge framed against

him. The trial court arrived at this conclusion as it disbelieved the

case set up by the appellant/complainant in view of the following

weaknesses noticed by it, in his case:-

(i) the appellant/complainant in his testimony had said that

whenever the goods were sold on credit, the buyers would append

their signatures on the bill in confirmation of receipt of goods.

The carbon copy of the bill which was produced by the

appellant/complainant did not bear the signatures of the

respondent/accused or any of its employees as was the market

practice when goods were supplied on credit;

(ii) while the trial court accepted the fact that since the cheques

in issue, were signed by the respondent/accused and hence,

statutory presumption under Section 118 read with Section 139 of

the N.I. Act had to be drawn in favour of the

appellant/complainant that they were issued in consideration of an

enforceable debt, it held that the presumption was rebuttable, and

the respondent/accused had been able to set up a probable

defence on account of the following factors:-

(a) the cheques in issue, even though signed by the

respondent/accused had the name of the drawee filled in by the

appellant/complainant. The appellant/complainant, in his

testimony, had stated that he had only filled in the name of the

drawee, and had not adverted to the fact that even the date on the

two cheques in issue was filled in by him and thus, was not in the

handwriting of the respondent/accused. On visual examination,

the trial court came to the conclusion that the dates entered on

the cheques were not in the handwriting of the

respondent/accused because of the peculiar manner in which the

numerical „5‟ was written;

(b) the appellant/complainant had filed what purported to be the

reply of the respondent/accused dated 07.11.2001 (Ex CW1/9) at

the fag end of the trial. Even so, the reply which was purportedly

issued by the lawyer of the respondent/accused was issued by one,

Mr S.L. Sethi; which was not believed since the

respondent/accused in his testimony had clearly stated that even

though he had signed a reply to the legal notice dated 22.10.2001,

(Ex CW1/6) issued by the appellant/complainant, the reply dated

07.11.2001 placed on record (Ex CW1/9) was not the reply issued

by the advocate for the respondent/accused. The trial court, in

this regard, referred to the testimony of the respondent/accused

wherein the respondent/accused went on to say that his reply had

been signed by an Advocate by the name of Mr C. L. Sethi and not

Mr S. L. Sethi. The trial court was of the opinion that in view of

this, the appellant/complainant ought to have summoned Mr S. L.

Sethi, who had purportedly issued the reply on behalf of the

respondent/accused as a witness. The trial court also took note of

the fact that respondent/accused in his testimony had said that he

could not produce the actual reply signed by him as the copy was

available with his Advocate, Mr C. L. Sethi, who had expired in the

interregnum.

(c ) The trial court was of the view that the respondent/accused

had been able to set up a plausible defence that the cheques in

issue, had been stolen by the appellant/complainant in as much as

that the appellant/complainant was in the business of the „clothes‟,

whereas the respondent/accused was in the business of „Fur‟

which in turn were used for making soft toys; the cheques in issue,

were stolen by the appellant/complainant when the

respondent/accused had shifted his furniture which included racks

etcetra. to the godown of the appellant/complainant on closure of

the respondent‟s/accused business due to losses;

(d) the bill (Ex CW1/1) against which the cheques had been

issued did not seem genuine for the following cumulative reasons:-

(i) it was on a plain piece of paper which did not contain any

printed material;

(ii) it did not have any serial number which was a basic

requirement of a bill book;

(iii) the carbon copy of the bill contained only hand written text;

(iv) there were no signatures of the recipient of the goods which,

according to the complainant, was a business practice in the

market when goods were sold on credit;

(v) the case of the appellant/complainant that bill (Ex CW1/1)

was part of a bound bill book was not believed for the following

reasons:-

(a) the bill in issue (Ex CW1/1) was larger in size than the other

copies found in the bill book;

(b) the handwriting on the bill in issue (Ex CW1/1) and that on

the copies of bills found in the bill book differed; the copies of bill

nos 1 to 6 and 8 which were both before and after the bill in issue,

which had a serial number 7, on a visual inspection seemed as

having been prepared with the help of blue carbon, whereas the

bill against which the cheques were issued, was prepared by using

a grey coloured carbon leaf;

appellant/complainant by using an abbreviated mark, that is,

Alphabet „A‟ whereas the bill in issue (Ex CW1/1) had the mark

„Ashok‟ on it. None of the other copies of the bills in the bill book

produced by the appellant/complainant had the mark „Ashok‟

appended on it.

10. The learned counsel for the appellant/complainant has

submitted before me that the trial court has come to an incorrect

conclusion in view of the fact that it has failed to appreciate the

evidence and the law on the issues arising before it. The learned

counsel contended that in view of the fact that it is admitted by the

respondent/accused that the cheques in issue, bore his signatures,

a statutory presumption arose in favour of the

appellant/complainant that they had been issued for a valuable

consideration. The learned counsel submitted that the trial court

has had, as a matter of fact, failed to examine the contradictions in

the stand of the respondent/accused as regards how the cheques

came in possession of the appellant/complainant. In this regard,

he drew my attention to the following contradictory stand taken by

the accused:-

10.1 In the deposition of the respondent/accused in Court, he had

taken the stand that the cheques in issue, were stolen by the

appellant/complainant. While in the reply (Ex CW1/9) to the legal

notice (Ex CW 1/6), the respondent/accused had taken a stand that

the goods against which cheques had been issued had been

returned in the presence of one Mr Pankaj S/o Bhushan of

Mahabir Gali, Gandhi Nagar, Delhi, and that they were really in

the nature of a collateral security and not as consideration for the

goods allegedly supplied by the appellant/complainant. A

completely different stand is taken by the respondent/accused in

the application for recalling the summoning order, in as much it is

averred that the appellant/complainant, in connivance with his

mother-in-law, had taken three blank cheques bearing nos 599134,

599135 and 658024 in the sum of Rs 50,000/- 50,000/- and

15,000/- respectively, which the appellant/complainant had filled

up.

10.2 The learned counsel for the appellant/complainant

submitted that there was no reason for the trial court to disbelieve

the authenticity of the reply (Ex CW1/9) to the legal notice, in view

of the fact that it was for the accused to place a copy of his reply

on record, if his challenge with respect to Ex CW1/9 had to come

through. The learned counsel for the appellant/complainant

submitted that, in view of the failure of the respondent/accused to

place what he claimed was the true copy of the reply on record,

which according to the accused was issued not by Mr S. L. Sethi

but by Mr C. L. Sethi; the Court must draw an adverse inference

against the respondent/accused. Reliance in this regard was

placed by the appellant/complainant on the provisions of Section

114(g) of the Indian Evidence Act, 1872. The appellant/

complainant in support of his submission relied upon the judgment

of the Supreme Court in the case of Hiten P Dalal vs

Bratindranath Banerjee : (2001)6 SCC 16 at Pages 25, 26, 28

and 29 Paragraphs 24, 25, 38 and 41.

11. As against this, the learned counsel for the

respondent/accused relied largely upon the decision of the trial

court to show that the appellant/complainant is required to prove

his case beyond a reasonable doubt. The learned counsel

submitted that in so far as the respondent/accused is concerned,

all that he is required to show to the Court was that he has a

probable defence. In demonstrating the probability of his defence,

the standard of proof which the accused is required to meet is

preponderance of probability, and not beyond reasonable doubt,

which is the standard of proof, the prosecution is required to meet.

11.1 The learned counsel for the respondent/accused, however,

fairly conceded that in the application filed before the trial court,

for recalling the summoning order, a stand different from one

which was taken by the respondent/accused both while deposing

in Court as a witness (DW1), as well as while giving his statement

to the Court under Section 313 of Cr.P.C.

12.     I     have       heard             the     learned     counsel     for        the

appellant/complainant as well as the respondent/accused.                               It

cannot be disputed that once a cheque is drawn and issued, there

is a statutory presumption under Section 118 of the N.I. Act that it

was issued for a valuable consideration. The

appellant/complainant in his testimony has stated that the

respondent/accused had purchased cloth from him vide bill

number 7 dated 09.05.2001 (Ex CW1/1) in the sum of Rs 65,000/-.

In discharge of the liability under the bill (Ex CW1/1) the cheques

in issue Ex CW1/2 and Ex CW1/4 were issued. The said cheques

were dishonoured and returned vide cheque return memo Ex

CW1/3 and Ex CW1/5. He has also testified that legal notice (Ex

CW1/6) making a statutory demand on the accused was served;

calling upon him to pay the value of the dishonoured cheques

within a period of 15 days. The complainant also proved the

acknowledgment card (Ex CW1/7). In the cross-examination,

when the appellant/complainant was confronted as to why the bill

in issue had not been signed by the recipient of the goods as was

the market practice, he had stated that the bill in issue (Ex CW1/1)

was not signed by the respondent/accused because the

consideration in the form of cheques had been handed over by

him. The fact that a civil suit was pending between the mother-in-

law of the appellant/complainant and the respondent/accused

pertaining to purchase of an immovable property of the

respondent/accused was accepted by the appellant/complainant.

It was, however, denied by the appellant/complainant in his

deposition that, since he had failed to make the balance payment,

the documents registered in regard to the said immovable

property were cancelled by the respondent/accused and his wife.

In his testimony, the appellant/complainant has denied that he had

either removed goods and articles from the shop of the

respondent/accused or the three cheques in issue, bearing nos

599134, 599135 and 658024 in the sum of Rs 5000/-, 50,000/- and

15,000/- respectively. As regards cross-examination of the

appellant/complainant in respect of reply (Ex CW1/9) purportedly

issued by the respondent/accused, the appellant/complainant

denied the suggestion that the reply was issued by the

respondent/accused through his counsel Mr C. L. Sethi and not

through Mr S. L. Sethi.

12.1 The dishonor of the cheques was proved by Mr A S Mehmi,

Manager, Uco Bank (CW-2) who proved that the cheque (Ex

CW1/2) bearing no. 658024 in the sum of Rs 15000/-, was returned

on the ground of insufficiency, while cheque bearing no. 599135 in

the sum of Rs 50,000/- (Ex CW1/4), was returned on the ground

that account was closed. The copies of the cheque returning

(Ex CW2/3) were also proved by the said witness. Similarly, Mr

Rajender Kr. Rastogi, (CW3), proved the dishonoured cheque by

referring to a ledger extract (Ex CW3/1). Interestingly, the

respondent/accused in his statement made under Section 313 of

the Cr.P.C., stated as follows:

(i) the respondent/accused had not purchased any cloth from

the appellant/complainant;

(ii) the cheques in issue, were stolen by the

appellant/complainant, when he had shifted his goods with the

appellant/complainant; and

(iii) that, even though he had received a statutory notice dated

22.10.2001 (Ex CW1/6) from the appellant/complainant, he had

replied to the same through his counsel Mr S. L. Sethi (note: not

Shri C.L. Sethi) who had expired in the interregnum.

13.1 It is only in his cross-examination that the

respondent/accused said that he had received the legal notice (Ex

CW1/6), which was, however, replied by his counsel Mr C. L.

Sethi, and that it could not be placed by him on the record of the

Court, as the copy was not available with him, since Mr C.L. Sethi

had expired in the interregnum. Interestingly, in the cross-

examination, there is a reference to one Mr Pankaj, as being one

of the persons, who perhaps conducted his business in the same

market as that of the appellant/complainant and

respondent/accused. The name Pankaj also finds mention in the

disputed reply (Ex CW1/9). The question is as to whether the

existence of the said reply (Ex CW1/9) should be disbelieved.

According to me, the same cannot be disbelieved for the reason

that even though the reply (Ex CW1/9) was placed by the

appellant/complainant on record at a late stage in the trial, it

appears to be genuine for the reason that in the statement of the

accused under Section 313 of the Cr.P.C., which was made as far

back as on 16.09.2003, he had accepted that it was Mr S.L. Sethi

who had sent the reply on his behalf to the statutory notice of

demand issued by the appellant/complainant. The extract of the

respondent‟s/accused statement reads as follows:-

"Q4. It is in further evidence against you that due to dishonor of the aforesaid cheques the legal notice dt. 22.10.2001 copy of which is Ex. CW1/6 was issued to you on behalf of the complainant was duly received by you vide AD card Ex.CW1/7 were despite that you have not paid the cheque amount to the complainant. What have you to say?

Ans. It is correct that I had received the Demand Notice and I had got issued reply to the same through my counsel Sh. S.L.Sethi Adv. he is now already expired."

13.2 It is only in his cross-examination (DW-1) that the

complainant stated that the reply had been sent through his

Advocate Mr C. L. Sethi. If the appellant/complainant had to

fabricate the reply (Ex CW1/9), he would not have waited till almost

the conclusion of the trial to place the reply (Ex CW1/9) on record.

Furthermore, in the reply (Ex CW1/9), there is a reference to the fact

that the goods in issue against which payment was demanded were

returned in the presence of one Mr Pankaj. In the cross-examination

of the respondent/accused, there is also a reference to Mr Pankaj as

one of the persons who had a shop in the same market where the

appellant/complainant and the respondent/accused had their shops.

In these circumstances, I find it hard to believe that the reply (Ex

CW1/9) is not genuine.

13.3 Even if it is assumed that the reply (Ex CW1/9) is not genuine,

and the stand taken therein that the cheques in issue, were only

issued as a collateral security, the stand of the respondent/accused

that the cheques were stolen does not inspire any confidence. The

defence set up by the respondent/accused that the cheques were

stolen, while he had shifted his goods to the godown of the

appellant/complainant is an improvement over the stand he has

taken in his statement under Section 313 of the Cr.P.C. The relevant

portion of his reply to a question asked of him is as follows:

"Ans. I have not issued any such cheques in favour of the complainant but closer (s.i.c. closure) of my shop I had kept my goods along with three cheques out of which two cheques of Rs. 50,000/- and one cheque is Rs.15,000/- duly signed by me but the rest were not filed up by me in the said cheques and as the complainant have stolen the cheques and have misused the same by filing this case."

As against this, in the cross-examination he has stated as follows:-

".......I closed the said shop and I vacated the said shop which was on rent. I kept my goods in the godown of complainant since I was having good terms with him. I kept the cheques Ex CW1/2 & CW1/4 and one another cheque in the drawer of my counter. The drawer was not locked where cheques were kept....."

13.4 A careful reading of the two versions would show that

while in the statement under Section 313 of the Cr.P.C. the

respondent/accused had simply said that on closure of his shop, he

had kept his goods alongwith the cheques which were stolen by the

appellant/complainant, there is no reference whatsoever that both

the goods and the cheques had been kept in the godown of the

appellant/complainant. This aspect that the goods and the cheques

had been kept in the godown of the appellant/complainant was an

improvement which was brought out only during the cross-

examination of the respondent/accused. Furthermore, even though

according to the respondent/accused, the cheques were stolen, he

neither wrote to the bank to stop payment of the cheques in issue

nor did he file a complaint with the police with respect to the same.

The cheques in issue, were dishonoured on the ground of

„insufficiency of funds‟ and „account closed‟, and not because

payment against them had been stopped. What makes the defence

of the respondent/accused completely unbelievable in the instant

case, is the stand taken by the respondent/accused in the very first

instance, when an application was moved for recalling the summons

issued by the trial court. In the application for recall of summons, as

noticed hereinabove, as far back as on 23.03.2002, the

respondent/accused has clearly stated as follows:-

"In fact, the complainant in connivance with his mother-in-law have taken three blank cheques

bearing no. 599134, 599135 and 658024 in which the complainant has filled an amount of Rs 50000/-, Rs. 50000/- and Rs 15000/-, respectively, at his own. The applicant has never given any cheque to the complainant."

13.5 The aforesaid application, which is dated 05.09.2002, has

been filed through the counsel Mr Kasana, who throughout has

appeared for the respondent/accused. When this aspect of the

matter was put to the learned counsel for the respondent/accused,

he stated that at the relevant point in time when the accused had

moved this application, he was not advised by his counsel. This

submission is incorrect in view of the fact that the application has

been signed by the counsel, and a bare perusal of the signatures of

the counsel on the application, when compared with the

Vakalatnama, clearly shows that the signatures on the two are

identical. Therefore, to submit that the stand in the application was

taken by the respondent/accused without legal advice is completely

incorrect. In the application, there is a reference to one more

cheque bearing no. 599134 in the sum of Rs 50,000/- apart from the

two cheques in issue, that is, Ex CW1/2 bearing no. 658024 in the

sum of Rs 15,000/- and the other cheque, Ex CW1/4 bearing no.

599134 in the sum of Rs 50,000/. The averment in Paragraph 1 of

the application that the three cheques were blank, which were taken

by the appellant/complainant in connivance with his mother-in-law

completely belies the stand of the respondent/accused that the

cheques in issue were stolen when he had shifted his goods to the

godown of the appellant/complainant.

13.6 A careful perusal of the testimony of the

appellant/complainant would show that there was no suggestion

made to the appellant/complainant that there was no transaction

between the appellant/complainant and the respondent/accused, as

one was in the business of „cloth‟ and the other i.e. the

respondent/accused was in the business of dealing in „Fur‟ used in

manufacture of soft toys. Therefore, for the trial court to come to a

conclusion that there can be no business transaction between the

two as the business of the appellant/complainant related to „cloth‟,

while that of the respondent/accused was connected to „Fur‟ was

based on the ipse dixit of the respondent/accused.

13.7 As regards the trial court‟s detailed analysis of the evidence

with regard to the genuiness of the bill (Ex CW1/1), I find that the

same is rather stretched. This is specially so, in the circumstance

that the size of the bill, which is Ex CW1/1, is not greater than those

found in the bill book.

13.8 The fact that a different colour carbon leaf had been used

cannot, in my view, lead to a conclusion that there was no

transaction between the appellant/complainant and the

respondent/accused. The fact that the bill in issue, had not been

signed or bore the mark „Ashok‟ as against the letter „A‟ is also not

conclusive to the fact that the bill is not genuine. Apart from the

mark „A‟, there are other marks in the bill book as well. In the cross-

examination, there are no such suggestions made to the

appellant/complainant and, therefore, the appellant/complainant had

no opportunity to explain the difference even though he was recalled

for examination. The only suggestion which was made to the

appellant/complainant in the cross-examination was whether the bill

in issue (Ex CW1/1) was signed by the respondent/accused. The

appellant/complainant had replied that the bill (Ex CW1/1) was not

signed because the respondent/accused had handed over cheques.

The market practice of obtaining signatures of the recipient of

goods, on the bill, alluded to by the appellant/complainant was

explained. The appellant/complainant clarified in the instant case

since the cheques had been handed over, there was no credit and

hence, there was no need for obtaining signatures of the recipient.

14. Taking into account the aforesaid circumstances, I am of the

view that the trial court, while applying the principle that the

respondent/accused in defence is required to demonstrate only a

probable case; the standard of proof for which is preponderance of

probability; it failed to appreciate the fine nuance between a

probable case, and a completely inconsistent defence, which tethers

on falsehood. The fact that a duly signed cheque was issued by the

respondent/accused gave rise to a statutory presumption in favour of

the appellant/complainant, which undoubtedly is rebuttable.

Therefore, the onus in the first instance was on the

respondent/accused. It is only on the respondent/accused putting

forth a probable defence which is consistent in material particulars,

could the onus have shifted back on to the appellant/complainant. In

this case, in my opinion, the onus did not shift back to the

appellant/complainant and hence, the conclusion drawn by the trial

court that the appellant/complainant had not been able to prove its

case beyond a reasonable doubt, was erroneous. On an appreciation

of the entire gamut of evidence placed before the trial court and the

totality of the circumstances obtaining in the case, to my mind, it is

quite obvious that the cheques in issue, were handed over to the

appellant/complainant. The presumption that they were handed over

and issued for a valuable consideration naturally flows in favour of

the appellant/complainant by virtue of the provisions of Section

118(a) of the N.I. Act. The fact that the respondent/accused was

unable to set up a probable defence which was in the very least

consistent throughout only strengthened this presumption. The

Supreme Court in the case of M.S. Narayana Menon vs State of

Kerela and Anr (2006) 6 SCC 39 approved of the dicta elucidated

in the case Bharat Barrel & Drum Mfg. Co. vs Amin Chand

Payrelal (1999) 3 SCC 35 wherein it observed clearly that initial

onus of proof is on the drawer of a negotiable instrument and till it

shifts, the drawee can take benefit of the statutory presumption

which arises in his favour by virtue of Section 118(a) of the N.I. Act,

that it is issued for a valuable consideration. In this context, the

observations in M S Narayana Menon (supra) at page 50

paragraph 31 being apposite are extracted hereinbelow:-

"31. A Division Bench of this Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal (1999) 3 SCC 35 : [1999]1SCR704 albeit in a civil case laid down the law in the following terms:

"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 rebuttable. 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 non- existence 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...."

This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence."

15. In my view, the circumstance which the trial court failed to

take into account was that if, as contended by the

respondent/accused that the cheques in issue, were stolen, why did

the respondent/accused not issue instructions to his banker to stop

payment of those cheques, or lodge a complaint with the police.

How is it that, in an application which was filed at the very initial

stage when, summons were issued by the trial court, the stand taken

by the respondent/accused was that the cheques in issue, alongwith

one more cheque, were taken by the appellant/complainant in

connivance with his mother-in-law who filled in the amounts what

purported to be blank cheques.

15. In view of the discussion above, I am of the opinion that the