Tripura High Court

Lokman Hossain vs The State Of Tripura Represented ... on 19 April, 2022

                               -1-




                HIGH COURT OF TRIPURA
                      AGARTALA
                   Crl.Rev.P.No.12 of 2020

Lokman Hossain, S/O Late Maju Miah of Murapara, PS
R.K.Pur, Udaipur, Dist-Gomati, Tripura.
                                        -----Petitioner(s)
                             Versus

1.The State of Tripura represented by Secretary cum
Commissioner, Home Department, Govt. of Tripura, New
Capital Complex, P.O. Lechubagan, P.S- West Agartala, Dist.-
West Tripura.

2. Sri Anjan Debnath, S/o Late Suresh Ch Debnath of
Chanban, Master para, P.S. R.K.Pur, Udaipur, Dist-Gomati
Tripura.
                                    -----Respondent(s)
                            BEFORE

      HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

For the Petitioner(s)        : Mr. A. Acharjee, Adv.

For the Respondent(s)        : Mr. S.Lodh, Adv.
                               Mr. S.Ghosh, Addl. PP

Date of Hearing              : 26.11.2021
Date of Judgment             : 19.04.2022

Whether fit for reporting    : Yes/No   
                        JUDGMENT

[1] This is a Criminal Revision Petition under

Section 397 read with Section 401 Cr.PC from the

judgment and order dated 17.11.2018 passed by the

Sessions Judge, Gomati Judicial District at Udaipur in

Criminal Appeal No.45(3) of 2016. Complainant

Lokman Hossain filed a complaint under Section 138

NI Act in the court of the Chief Judicial Magistrate at

Udaipur against accused Anjan Debnath. By judgment

and order dated 04.03.2016 passed in case No.CR-12

of 2015(NI), the learned Chief Judicial Magistrate

found accused Anjan Debnath not guilty and acquitted

him of the charge under Section 138 NI Act. The

complainant challenged the order of acquittal by filing

the appeal before the learned Sessions Judge. The

learned Sessions Judge by the impugned judgment

dismissed the appeal and upheld the order of

acquittal.

Hence this Criminal Revision Petition.

[2] The fact of the case in brief is that accused

Anajan Debnath [Respondent No.2 herein] allegedly

borrowed a sum of Rs.1 lakh on 10.08.2014 from the

petitioner on condition that he would refund the

money within next 6 months. 2 weeks thereafter,

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accused borrowed another loan of same amount from

the petitioner on 24.08.2014 assuring the petitioner

that he would return the money within 6 months.

Despite repeated request, accused did not return the

money to the petitioner even after expiry of the

stipulated period. Finally the petitioner approached the

accused [Respondent No.2] for refund of the entire

loan of Rs.2 lakhs which was taken by the petitioner

from him in two spells. Pursuant to his request,

accused issued 2 cheques bearing No.509068 and

509069 on State Bank of India, Udaipur branch.

Among those cheques, petitioner presented cheque

No.509069 on 12.03.2018 in United Bank of India,

Killa branch where he had savings bank account

No.1198010077109 for encashment. Thereafter, on

19.03.2015 the branch manager of Killa branch of the

UBI returned the cheque to the petitioner due to

insufficiency of fund in account No.20150115769 of

the accused in SBI, Udaipur branch. In usual course,

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petitioner informed the accused that cheque

No.509069 issued by him was dishonoured for

insufficiency of fund in his account in SBI. On

23.03.2015 the petitioner deposited the other cheque

bearing No.509068 for encashment in his account

No.1198010077109 in UBI, Killa branch. The said

cheque was also dishonoured and the same was

returned to the petitioner on 27.03.2015 due to

insufficiency of fund in the account of the accused.

Thereafter, on 01.04.2015 petitioner issued demand

notice to the accused through his advocate demanding

refund of Rs.2 lakhs within 15 days. Accused did not

reply to the said demand notice. Petitioner therefore,

filed a complaint in the court of CJM, Udaipur

on18.04.2015 against the accused for commission of

offence punishable under Section138 NI Act.

[3] Trial commenced in the court of the CJM.

During trial, petitioner examined himself as PW-1 and

in support of his complaint he submitted some

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documents viz. cheque bearing No.509068 [Exbt.-1],

cheque bearing No.509069 [Exbt.2], banker's slip

dated 19.03.2015 [Exbt.3], banker's slip dated

27.03.2015 [Exbt.-4], deposit slip dated 12.03.2015

[Exbt.5], deposit slip dated 23.03.2015 [Exbt.6],

Demand notice dated 01.04.2015 [Exbt.-7] and the

postal receipt dated 01.04.2015 [Exbt.8]. During his

examination under Section313 Cr.PC, accused abjured

his guilt and claimed that the charge was foisted on

him. He denied the entire incriminating evidence

produced against him and declined to adduce any

defence witness. He, however, stated that he had no

existing debts to the petitioner. He issued blank

cheque to the petitioner to facilitate the business

jointly run by him with the petitioner.

[4] On appreciation of evidence, the learned

CJM acquitted the accused [Respondent No.2]. It

would appear from the judgment of the trial court that

during trial, the learned CJM framed 3 issues in the

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case. The first issue was whether accused issued the

impugned cheque in favour of the complainant

petitioner in discharge of an existing debt. The learned

trial judge discussed the entire evidence and

arguments advanced by the counsel of the parties on

this issue and answered the issue in the negative

against the complainant. It was held by the learned

trial judge that complainant failed to prove that

cheques were issued by the accused in discharge of an

existing debt. The second issue was whether these

cheques were dishonoured due to insufficiency of fund

in the account of the accused. On appreciation of

evidence, the learned trial judge held that complainant

was able to prove that those cheques were

dishonoured due to insufficient fund in the account of

the accused. Despite such finding, learned trial judge

ultimately answered the issue in the negative against

the complainant. His observation is as under:

"Thus, therefore, considering all these aspects, I find the complainant is able to prove the fact that

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the two cheques were dishonoured due to insufficient fund in the account of the accused.

Accordingly, point No.(ii) is decided in the negative and against the complainant but in favour of the accused."

[5] The third issue was whether complainant

petitioner issued demand notice to the accused and

whether despite receiving demand notice accused

failed to refund the money to the complainant. Having

appreciated the entire evidence on record, the learned

trial judge held that complainant petitioner succeeded

in proving that despite receiving demand notice

accused did not refund the money to the petitioner.

[6] Thus it would appear from the judgment of

the learned trial judge that he was of the view that

complainant petitioner could not prove that accused

issued the impugned cheques in discharge of any

existing debt towards the petitioner. Therefore, even

after viewing that complainant succeeded in proving

that the impugned cheques were dishonoured by bank

due to insufficiency of fund in the account of the

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accused and demand notice was served on the

accused, the trial court acquitted the accused on the

ground that the impugned cheques were not issued by

the accused to discharge any existing debt towards

the complainant.

[7] The learned Sessions Judge reassessed the

entire evidence and held as under:

"9. Further, as per the complaint and evidence-in- chief of the complainant, the accused took Rs. 2 lacs from him in two spells, whereas in cross- examination the complainant has said that he gave Rs. Two lacs to the accused in one go. This is a material discrepancy in the case of the complainant. Further, in the complaint and evidence-chief the complainant states about taking of loan simpliciter by the accused, whereas, in cross-examination he says that he gave the money to the accused for supplying timber. Situated thus, the very genesis of the prosecution story smacks of a lot of doubt and therefore, I find no infirmity in the finding of learned trial court in so far as he has concluded that the prosecution suffers from material lacunae. Situated thus, the Ld. Trial court has rightly held that the presumption under section 118 and 139 of the N.I. Act has been ably rebutted by the defence.

10. Section 118 and 139 of the N.I. Act provide thus: S.118. Presumptions as to negotiable instruments: Until the contrary is proved, the following presumption shall be made:-

                                      (a)    of      consideration-that every
                                      negotiable    instrument was made or


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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.

S.139. Presumption in favor of holder :

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

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discharge, in whole or in part, or any debt or other liability.

11. The gravamen of the complainant's case is that on 10.08.2014 the accused borrowed Rs. One lac from him for urgent necessity on condition to repay within six months. Thereafter, on 24.08.2014 the accused again borrowed Rs. One lac from him for urgent necessity on condition to repay it within six months. There is no explanation why such borrowing was given by the complainant in such quick succession.

12. As regards the repayment, the case of the complainant is that on being approached by him, on 11.03.2015 the accused issued two cheques No.509068 and 509069 for Rs. One lac each which were subsequently dishonoured by the bank. But there is no justification given by the complainant as to why two cheques were issued for Rs. One lac each whereas the accused could easily have issued a single cheque of Rs. Two lacs because both the cheques were issued on the same date i.e. 11.03.2015. As rightly observed by the trial court, there is a suspicious circumstance surrounding the entire transaction. The cheques appear to be signed by Anjan Debnath but the filling up of the blank space about amount etc. seems to be a different handwriting. That also has remained unexplained from the side of the complainant.

13. Another murky aspect of the case is that other than the evidence of the complainant, there is no supporting oral or documentary evidence about lending of the money by the complainant to the accused. It does not stand to reason how and why the complainant could have given an amount as big as two lacs to the accused without executing even a kutcha receipt and without there being any witness to the transaction. This by itself is a big question mark on the veracity of the case of the complainant.

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14. In view of the above discrepancies in the evidence of the complainant, even if the cheques were dishonoured by the bank, but on account of the transaction of loan itself being clouded with doubt, I am of the view that the learned trial court has rightly held that the complainant has not been able to prove his case against the accused beyond reasonable doubt."

Thereafter, on such observation as noted

above, the learned Sessions Judge held that the

accusation as made by the petitioner could not be

established due to abundant discrepancy in the

evidence of the complainant vis a vis his complaint

petition. Resultantly, the learned Sessions Judge

affirmed the order of acquittal passed by the trial

court. Being aggrieved by that judgment, this revision

petition has been filed.

[8] Heard Mr. A.Acharjee, learned counsel

appearing for the petitioner. Also heard Mr. S.Lodh,

learned counsel appearing for accused respondent

No.2 and Mr. S.Ghosh, learned Addl. PP for state

respondent No.1.

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[9] It is contended by Mr.Acharjee, counsel

appearing for the complainant petitioner that once it is

admitted by the accused that he signed the cheques

which were subsequently dishonoured, presumption of

a legally enforceable debt or liability arises and the

accused can be held guilty under Section 138 NI Act

unless it is rebutted by the accused by adducing

evidence. To buttress his contention, counsel has

relied on the decision of the Apex court in the case of

RANGAPPA VS. SRI MOHAN reported in (2010) 11 SCC

441 wherein the Apex Court in para 30 has held as

under:

"30. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, insofar as it was not clear whether the accused had asked for a hand loan to meet the construction-related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction expenses. Since the accused did admit that the signature on the cheque

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was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant."

[10] Mr. Acharjee learned counsel has also

contended that once it is proved that cheques issued

by the accused relate to his account and the accused

admits his signatures on the impugned cheques, the

initial presumption as contemplated under Section 139

of the NI Act has to be raised by the court in favour of

the complainant and such presumption is a mandatory

presumption and the accused would be entitled to

rebut such a presumption only by adducing evidence.

Counsel submits that in the instant case accused did

not deny his signatures on the impugned cheques.

Moreover, he could not also rebut the mandatory

presumption arising from the circumstances by

adducing evidence. In support of his contention

Mr.Acharjee, learned counsel has relied on the

judgment of this court in Subal Chandra Ghosh vs.

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State of Tripura and Anr reported in 2019 1 TLR 318

wherein this court has held as under:

"36) In K. Bhaskaran vs. Sankaran Vaidhyan Balan, reported in AIR 1999 SC-3762 at para-9, the Apex Court has held that:-

" 9. As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption."

37)..........................................................................

38) It would be apposite to take note of decision of the Apex Court in Rangappa vs Sri Mohan, reported in (2010) 11SCC-441, wherein the Apex Court had held in Para-16 that:-

"16. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that: Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused

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is entitled to rebut the said presumption. What is required to be establish by the accused in order to rebut the presumption in different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him. Whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the High Court recorded a finding of conviction."

[11] Counsel contended that the trial court

despite deciding 2 issues in favour of the complainant

with regard to issuance of cheques and dishonor of

those cheques, acquitted the accused only on the

ground that the complainant could not prove any

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enforceable debt against him. According to Mr.

Acharjee, learned counsel, learned Sessions Judge also

upheld the acquittal mainly on the ground that

complainant could not prove that he actually paid the

alleged amount of money to the accused and as such,

prosecution case was doubtful. Counsel submits that

once the cheque and signature thereon is admitted by

the accused, the statutory presumption arises against

him and the courts must have acted on the mandatory

statutory presumption since the accused could not

rebut such presumption by adducing evidence.

Counsel therefore, urged the court for convicting the

accused for the offence by setting aside his acquittal.

[12] Mr. S.Lodh, learned counsel appearing for

the accused respondent has contended that in the

present case complainant could not produce any

evidence with regard to payment of money. No

witness came forward to support that the transaction

of money between the complainant and the accused

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had actually taken place. Moreover, the trial court as

well as the appellate court has concurrently held that

no existence of enforceable debt has been established

by the complainant. In these circumstances, there is

no ground to interfere with those concurrent findings.

[13] Counsel contends that revisional jurisdiction

of this court under Section 397 read with Section 401

of the Code of Criminal Procedure is required to be

exercised sparingly. Unless the concurrent findings of

the courts below appear to be perverse or untenable in

law or glaringly unreasonable, exercise of power under

revisional jurisdiction is not permissible. To nourish his

contention counsel has relied on the decision of this

court in Subal Chandra Ghosh vs. State of Tripura

and Anr.(supra) wherein this court in paragraph 60 of

the judgment has held as under:

"60) Keeping the aforesaid legal principles in mind though the exercise of revisional jurisdiction of this Court under Section 397 to 401 of the Code of Criminal Procedure is required to be sparingly exercised, but, according to me, if the decisions of the Courts below appear to be perverse or

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untenable in law or in grossly erroneous or glaringly unreasonable or where the decision is based on no materials or where the materials facts are wholly ignored or judicial discretion vested with the Courts are exercised arbitrarily or capriciously then, this Court will definitely exercise its jurisdiction vested upon it under Section 397 to 401 of the CrPC."

[14] Mr. Lodh, learned counsel has contended

that even if it appears to the court that on the basis of

the evidence on record two views are equally possible,

the view which is favourable to the accused has to be

taken by the court. In support of his contention

counsel has relied on the judgment dated 29.05.2020

of this court in Suman Saha vs. Parswhanath Modak

[Crl. A No. 24/2017] wherein this court in paragraph

14 of the judgment held has under:

"[14] The findings in respect of conforming to the requirement is not under challenge. Hence, the solitary question as framed above is the foundation of challenging the order of acquittal dated 14.06.2017. This court finds that sufficient justification has been given by the trial court while drawing inference in respect of financial capacity of the complainant. Even if, the other inference is capable of being drawn, this court, in view of the settled position of law as enunciated by the apex court in Chandrappa & others vs. State of Karnataka, reported in (2007) 4 SCC 415 etc. should not embark upon to disturb the finding of acquittal recorded by

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the trial court. In Chandrappa (supra) the apex court has laid down the principle as under:

"Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court.""

[15] Counsel contends that the impugned

judgment is founded on sound evidence and reasoning

which does not call for any interference in appeal.

Counsel therefore, urges for dismissal of the petition.

[16] Perused the entire record. Considered the

submissions of learned counsel representing the

parties. There is no doubt that the cheques, as issued

by the accused [respondent no.2 herein], were

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dishonored by the bank for insufficiency of fund. It

also stands established that after the cheques were

returned without encashment, complainant petitioner

issued demand notice to the accused. The further

question which was examined by the learned Sessions

Judge was whether those cheques were issued for

enforceable debt or liability and whether the amount

contained in those cheques were actually put by the

accused. Accused tried to impress the trial court by

projecting a case that he issued blank cheque to the

petitioner for facilitating their joint timber business

and the complainant put the figures in the cheque and

subsequently prosecuted him. The learned Sessions

Judge after examining the entire record held that even

though the cheques were admittedly signed by the

accused, the blank spaces pertaining to amount was

filled up in a different hand writing and the

complainant in the course of trial could not offer any

explanation about different hand writing appearing in

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the cheque so as to remove doubts from the mind of

the court. Learned Sessions Judge also held that even

though the signatures appearing on the cheques was

admitted by the accused, he denied to have issued

those cheques for any existing debt. Learned Sessions

Judge also held that alleged monetary transaction

between the parties to the lis was also doubtful

because it was unlikely that complainant would make

payment of such huge amount without keeping proof

of payment. Learned Sessions Judge therefore,

disbelieved the prosecution case and upheld the order

of acquittal.

[17] Question which falls for consideration of the

court is whether an accused charged under Section

138 NI Act can be let off on such grounds after it is

proved that cheques were issued by him and the same

were dishonoured and despite receiving notice he did

not refund the cheque amount to the complainant.

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[18] In a series of judgments, the Apex Court has

held that in view of Section 139 NI Act, it has to be

presumed that a cheque duly executed was issued for

discharge of a debt or other liability. But the

presumption is rebuttable by proving the contrary by

adducing evidence. So once the execution of the

cheque is admitted, a mandatory presumption arises

against the accused that the same was issued in

discharge of his debt or other liability towards the

complainant.

[19] Accused cannot escape by saying that he

issued a blank cheque in favour of the complainant

and the complainant put the figures therein to

implicate the accused in a false case. The Apex Court

in BIR SINGH Versus MUKESH KUMAR reported in (2019) 4

SCC 197 succinctly held that once a person signs a

cheque and makes it over to the payee remains liable

unless he adduces evidence to rebut the presumption

that the cheque has been issued for payment of a debt

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or in discharge of a liability. It has also been held by

the apex court by the said judgment that even if a

blank cheuqe is voluntarily presented to the payee,

towards some payment, the payee may fill up the

amount and other particulars which itself would not

invalidate the cheque. Observation of the Apex Court

in this regard is as under:

"32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act.

33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.

34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars.

This in itself would not invalidate the cheque. The onus would still be on the accused to prove that

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the cheque was not in discharge of a debt or liability by adducing evidence.

35. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondentaccused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.

36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."

It is no case of the petitioner that he signed

the impugned cheque involuntarily or under any kind

of duress or coercion. Rather he has admitted the

transaction with the complainant which will be evident

from the cross examination of the complainant.

[20] The cross examination of the complainant

[PW-1] would demonstrate that accused did not deny

execution of the impugned cheque. He did not also

deny his transaction with the complainant. Rather

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during his examination under Section 313 Cr.P.C he

stated that he had a business transaction with the

complainant for which he issued a blank cheque which

was misused by the complainant. Accused did not

adduce any evidence at all to establish such defence

case in rebuttal of the presumption arising against him

under Section 139 NI Act.

[21] Once the execution of the cheque is

admitted, mere denial regarding existence of debt

cannot save the accused. In case of KISHAN RAO vs.

SHANKARGOUDA reported in (2018) 8 SCC 165 the

apex court has succinctly held that mere denial of

existence of debt shall not serve any purpose in a

proceeding under Section 138 NI Act. Something

which is probable has to be brought on record for

getting the burden of proof shifted to the complainant.

Observation of the Apex Court in this regard in

paragraph 20 of the said judgment is as under:

"20. This Court held that the accused may adduce evidence to rebut the presumption, but

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mere denial regarding existence of debt shall not serve any purpose. The following was held in paragraph 20 [Kumar Exports vs. Sharma Carpets (2009) 2 SCC 513] :

"20....The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist..."

[22] In the land mark decision in Hiten P.Dalal

Vs. Bratindranath Bannerjee reported in (2001) 6

SCC 16 the apex court held that the presumptions to

be drawn by the court under Sections 138 and 139 NI

Act are presumptions of law which cast evidential

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burden on the accused to disprove the presumption.

Observations of the Apex Court are as under:

"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 vs. A. Vaidyanatha Iyer, AIR 1958 SC 61, 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 nonexistence of the presumed fact."

[23] In the case of Benu Roy Vs. Rajib Ghosh

reported in (2018) 2 TLR 463 it was held by this court

that unless the explanation offered by the accused

with regard to existence of debt is supported by proof,

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the statutory presumption under NI Act as to the debt

cannot be said to have been rebutted. In this regard

the following observation was made by this court in

the case of Benu Roy(supra):

"55. That is how the Apex Court in Hiten P. Dalal (supra) has distinguished between two situations. It is not general presumption under Section 114 of the Evidence Act, it is a presumption under Section 139 read with rule of evidence as provided under Section 118 of the NI Act. The presumption has to be very direct and of such nature that the fact that has been laid has to be trusted by a prudent person. It must be supported by reliable materials. A reasonable man would act on the supposition that it exists. Unless, the explanation in order to rebut is supported by proof the presumption created by the statute cannot be said to have rebutted."

[24] In the given case the accused other than

cross examining the complainant PW-1 did not adduce

any evidence at all to rebut the statutory presumption

arising against him under Section 139 NI Act. Learned

trial court as well as the appellate court seems to have

overlooked these aspects of the case.

Crl.Rev.P.12 / 2020

[25] In these circumstances, I am of the view

that this court should interfere with the concurrent

findings of the courts below for correcting miscarriage

of justice. Accordingly the judgment and order of

acquittal of the accused passed by the trial court and