# Shiv Kumar Sharma v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-29
- **Case number:** Application u/s 482 No. 42663 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-sharma-v-state-of-u-p-anr-opp-parties-49969
- **Pages:** 10

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Sections 202 & 482 -
Inherent
power
-
The
Negotiable
Instruments Act, 1881 - Section 118 -
Presumptions
as
to
negotiable
instruments - Section 138 - Dishonor of
cheque for insufficiency, etc., of funds in
the accounts - Section 139 - Presumption
in favour of holder , The general clauses
act, 1897 - section 27 - meaning of service
by post - service of notice has been
effected when it is sent to the correct
address
by
registered
post,
Indian
Evidence Act, 1872 - Section 114 - Court
to presume that in the common course of
natural events, the communication would
have been delivered at the address of the
addressee - when a notice is sent by
registered post and is returned with a
postal
endorsement
refused
or
not
available in the house or house locked or
shop closed or addressee not in station,
due service has to be presumed. (Para -
15, 16)

Complaint filed under Section 138 N.I. Act -
against applicant - alleging a demand for Rs.
1,25,000 for a partnership - opposite party
provided the same amount - but applicant
showed profit in 2014-15 - returned balance -
opposite party refused to pay - legal notice
through registered post - alleged to be not
accepted by applicant - applicant did not
return amount - Magistrate summoned -
Cheque was issued by applicant - towards
payments of debt or liability from an account -
436 INDIAN LAW REPORTS ALLAHABAD SERIES
blocked - complainant was not aware.(Para -2,
19)

HELD:- Only a prima facie case is to be seen,
and the factum of disputed notice requires
adjudication based on evidence, which can
only be done by trial court. All are disputed
questions of fact. When the facts have to be
established by way of evidence, Court while
exercising the powers under section 482 of
Cr.P.C.,
cannot
interfere
with
such
proceedings. No grounds made out for
quashing of the proceedings under section
138 of the Negotiable Instruments Act.(Para
-20, 21)

Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:

## Text

4 All. Shiv Kumar Sharma Vs. State of U.P. & Anr.
435
concludes that the trial Court ought to have
adopted more liberal view towards defence
and they should have been provided
sufficient time for production of defence
evidence.

21. On the basis of above discussion
this Court is of the view that to prevent the
abuse of process and to secure the ends to
justice it is imperative for this Court to
intervene with the impugned order and to
allow the application.

Order

22. The application under Section 482
Cr.P.C. is allowed and the order dated
21.11.2022 passed in S.T. No. 392 of 2009
(State Vs. Sanjeet Kumar and Others)
arising out of Case Crime No. 142 of 2009
under Section 498A, 304 B I.P.C. and
Section D.P. Act, with an alternative
charge under Section 302 I.P.C. Police
Station- Lanka, District- Varanasi, is
hereby set aside. The learned Trial Court is
directed to provide sufficient opportunity to
adduce the defence evidence to the
accused-applicants for which this Court
thinks proper to provide at least 5 dates for
production of prosecution evidence. It is
further directed that the applicants shall not
move
any
unnecessary
adjournments.
Further, if any application for summoning
of the record or witnesses is moved, the
same shall be considered in view of the
above observations.

23. A copy of this order be sent to the
trial Court for compliance.
----------
(2023) 4 ILRA 435
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application u/s 482 No. 42663 of 2022

Shiv Kumar Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Omar Zamin, Sri Rohit Nandan Pandey

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Sections 202 & 482 -
Inherent
power
-
The
Negotiable
Instruments Act, 1881 - Section 118 -
Presumptions
as
to
negotiable
instruments - Section 138 - Dishonor of
cheque for insufficiency, etc., of funds in
the accounts - Section 139 - Presumption
in favour of holder , The general clauses
act, 1897 - section 27 - meaning of service
by post - service of notice has been
effected when it is sent to the correct
address
by
registered
post,
Indian
Evidence Act, 1872 - Section 114 - Court
to presume that in the common course of
natural events, the communication would
have been delivered at the address of the
addressee - when a notice is sent by
registered post and is returned with a
postal
endorsement
refused
or
not
available in the house or house locked or
shop closed or addressee not in station,
due service has to be presumed. (Para -
15, 16)

Complaint filed under Section 138 N.I. Act -
against applicant - alleging a demand for Rs.
1,25,000 for a partnership - opposite party
provided the same amount - but applicant
showed profit in 2014-15 - returned balance -
opposite party refused to pay - legal notice
through registered post - alleged to be not
accepted by applicant - applicant did not
return amount - Magistrate summoned -
Cheque was issued by applicant - towards
payments of debt or liability from an account -
436 INDIAN LAW REPORTS ALLAHABAD SERIES
blocked - complainant was not aware.(Para -2,
19)

HELD:- Only a prima facie case is to be seen,
and the factum of disputed notice requires
adjudication based on evidence, which can
only be done by trial court. All are disputed
questions of fact. When the facts have to be
established by way of evidence, Court while
exercising the powers under section 482 of
Cr.P.C.,
cannot
interfere
with
such
proceedings. No grounds made out for
quashing of the proceedings under section
138 of the Negotiable Instruments Act.(Para
-20, 21)

Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:

1. Rajesh Meena Vs St. of Har. & ors.. , CRM -
M- 14537 - 2018

2. M/s Ceasefire Industries Ltd. Vs St. & ors.. ,
Crl L.P. 51/2017

3. C.C. Alavi Haji Vs Palapetty Muhammed &
anr. , (2007) 6 SCC 555

4. Jagdish Singh Vs Natthu Singh, (1992) 1 SCC
647 : AIR 1992 SC 1604

5. St. of M.P. Vs Hiralal , (1996) 7 SCC 523

6. V. Raja Kumari Vs P. Subbarama Naidu ,
(2004) 8 SCC 774 : 2005 SCC (Cri) 393

7. Bhaskaran case, (1999) 7 SCC 510 : 1999
SCC (Cri) 1284

8. Ajeet Seeds Ltd. Vs K. Gopala Krishnaiah ,
(2014) 12 SCC 685

9. C.C. Alavi Haji Vs Palapetty Muhammed ,
(2007) 6 SCC 555 , (2007) 3 SCC (Cri) 236

10. D.Vinod Shivappa Vs Nanda Belliappa
, (2006) 6 SCC 456 : (2006) 3 SCC (Cri)
114

11. Bharat Barrel & Drum Manufacturing
Company Vs Amin Chand Pyarelal , (1999) 3
SCC 35
12. Basalingappa Vs Mudibasappa, (2019) 5 SCC
418

13. Kishan Rao Vs Shankargouda , (2018) 8 SCC
165: (2018) 4 SCC (Civ) 685 : (2018) 3 SCC
(Civ) 544

14. Kishan Rao Vs Shankargouda , (2018) 8 SCC
165: (2018) 4 SCC (Civ) 37 : (2018) 3 SCC (Cri)
544

15. Ranjit Vs St. of U.P. & anr., (2020)03 -
05ILR A1752 : Application U/S 482 No. 47282 of
2019,

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. By means of instant application the
applicant
has
approached
this
Court
challenging the proceedings of Complaint
Case No. 2233 of 20211, under Section 138
of the Negotiable Instruments Act, 18812,
Police Station Phase-2, District Gautam
Buddh Nagar and summoning order dated
05.04.2022 passed by Additional Chief
Judicial Magistrate-III, Gautam Buddh
Nagar.

2. Brief facts of the case are; a
complaint under Section 138 of the N.I. Act
was filed against the applicant with the
allegation that the applicant having good
relations with opposite party no. 2
demanded an amount of Rs. 1,25,00,000/-
requesting him to become a partner in his
business, which was being run by him since
2013. The opposite party no. 2, on the
assurance of the applicant, gave an amount
of Rs. 1,25,00,000/-. It has further been
alleged that the applicant, having the
intention of cheating, showed profit in the
Firm for the year 2014-15 and returned an
amount of Rs. 8,00,000/- to the opposite
party no. 2. On being asked to return the
balance amount, the applicant gave Cheque
No. 097414 dated 24.03.2021 of Rs.
4 All. Shiv Kumar Sharma Vs. State of U.P. & Anr.
437
20,00,000/-. The said cheque was presented
by the complainant in the Bank on
05.04.2021 which was returned with the
remark "Bank Blocked". Thereafter, the
opposite party no. 2 approached the
applicant informing him about return of the
cheque by the Bank with the aforesaid
remark and requested him to pay the
amount as was taken by him, on which the
applicant misbehaved with the opposite
party no. 2 and used abusive language,
threatening for dire consequences and
abruptly refused to return the amount.
Thus, a legal notice dated 17.04.2021 was
given by the opposite party no. 2 through
registered post, however, the same was
alleged to be not accepted by the applicant.
The applicant did not return the amount nor
submitted reply to the legal notice given by
opposite party no. 2, therefore, the present
complaint
was
filed
on
27.07.2021.
Subsequently, the learned Magistrate, after
recording statements under Section 202
Cr.P.C. summoned the applicant vide order
dated 05.04.2022 under Section 138 of the
N.I. Act.

3. On earlier occasion i.e. 15.02.2023
Sri Omar Zamin, learned Advocate argued
the matter at length, however, to respond
some specific queries, the case was posted
for 21.03.2023 for further hearing, though
this Court had expressed its view of not
being convinced to grant any relief in
favour of the applicant. To utter surprise,
on the next date, Sri Rohit Nandan Pandey,
learned Advocate stepped in by filing his
memo of appearance on behalf of the
applicant, whereas he was not in a position
to assist the Court even to a tad bit as he
appeared to be in oblivion state regarding
the facts of the case as also incognizant of
the exhaustive and strenuous arguments
advanced by Mr. Omar on the previous
date. On being insisted to render assistance,
Mr. Pandey summed up his arguments in
very cavalier and unvirtuous manner. Such
practice not only impedes early conclusion
of a case but also disparages the profession
and is execrated as infelicitous.

4. Appearance of a subsequent
counsel
at
the
concluding
stage
of
arguments, that too, after disclosure of the
view by the Court towards its result,
emanates an undesired situation inimical to
highly dignified profession of Advocacy
regarded by all stratums of society. An
advocate is considered as an Officer of the
Court, thus, he or she is expected to adhere
to the canon and criterion of etiquettes
towards
professionalism.
Advocate
is
expected to perform his functions amenable
to honored and dignified profession as also
he or she is duty bound to maintain
decorum of the court discharging his or her
functions properly not only with colleagues
but even with his opponents.

5. Conduct of accepting the brief by a
subsequent
counsel
at
the
stage
of
conclusion of arguments by previous
counsel and that too before the very date of
pronouncement
of
the
judgement,
permeates unsolicited impression and does
not fetch appreciation rather it spots a
stigmatic mole over the person who being a
lawyer is believed to follow the traditional
decorum in the field of legal profession.
Mr. Pandey who carries respectful position
for his professional etiquettes is advised to
refrain himself from being introduced as a
subsequent engagement in a case where
arguments have already been concluded by
some other previous counsel, so as to
secure faith and regard to his credit. The
Court always commends the fairness and
never thinks of subverting or demolition of
professional principles and ethics at the end
of a lawyer. In case of ineluctable request
438 INDIAN LAW REPORTS ALLAHABAD SERIES
of the client, nevertheless Sri Pandey
should have been conversant with the status
of arguments advanced by Mr. Omar Zamin
before accepting the brief.

6. Emergence of present incident
constrains me to request the luminaries of
the Bar Council as well as Bar Association,
namely, (i) Chairman, Bar Council of Uttar
Pradesh, Allahabad; (ii) President, High
Court Bar Association, Allahabad and (iii)
Secretary, High Court Bar Association,
Allahabad to assign space for consideration
of such inappropriate situations, in a joint
meeting which may cast a stone to the
frequently
rising
wretched
conditions
affecting the noble profession of Advocacy,
which resultantly becomes one of the
reasons for delayed justice and jolts the
faith of a litigant over the system.

Arguments advanced by Sri Omar
Zamin, earlier learned Counsel appeared
for the applicant

7. Earlier learned counsel for the
applicant Mr. Omar Zamin had argued that
the applicant lodged a first information
report dated 04.09.2017, wherein he
complained about an incident that his bag
was stolen from his car wherein signed and
unsigned
documents
were
placed.
It
appears that the aforesaid cheque came in
the hands of opposite party no. 2, after
using which the present complaint has been
filed hence the complaint against the
applicant is not maintainable on this
ground.

8. Learned counsel for the applicant
next submitted that as per Section 138 of
the N.I. Act, the cheque issued, should be
drawn by a person "for discharge, in whole
or in part, of any debt or other liability" that
is to say, the cheque should have been
drawn for the discharge of any debt or other
liability of a drawer towards the payee. In
the present case, it cannot be presumed in
any way that the cheque has been issued for
a debt or liability. He further submits that
the cheque drawn by a person should be
from an account maintained by him with a
banker for payment of any amount of
money to another person out of that
account for discharge of his debt or
liability. In the present case, the applicant
had already lodged a first information
report dated 04.09.2017 alleging therein
about an incident where his bag containing
signed and unsigned documents along with
other cheques, was lost. It appears that the
aforesaid cheque came in the hands of
opposite party no. 2, after using which the
present complaint has been filed hence the
complaint is not maintainable on this
ground itself.

9. The learned counsel had further
contended that financial irregularities by
office bearers is of Mahamedha Urban
Cooperative Bank Ltd.3 as well as
regarding misappropriation of money, a
first information report was lodged, which
led to cancellation of licence of the
aforesaid Bank and hence the accounts
there were blocked in the year 2017 itself.
Thus, the accounts from which the cheque
was issued was not in operation and was
not being maintained by the applicant, thus,
the complaint under Section 138 of the N.I.
Act could not be lodged in such a case
where a cheque for payment of liability or
debt is being issued from the account which
is not being maintained at the relevant point
of time. Relying on a judgement of Punjab
and Haryana High Court in the case of
Rajesh Meena v. State of Haryana and
others4, learned counsel for the applicant
submitted that on the date when the cheque
was dishonored, the account holder was not
4 All. Shiv Kumar Sharma Vs. State of U.P. & Anr.
439
maintaining the said account, therefore, in
the absence of this material condition it
cannot be said that the offence punishable
under Section 138 of the N.I. Act is made
out as is one of the necessary ingredients
required for lodging of complaint under the
relevant Act.

10. Learned counsel for the applicant
further relied upon a judgement of Delhi
High Court in the case of M/s Ceasefire
Industries Ltd. v. State & Ors.5. He
submitted that as the accounts had been
frozen in terms of the first information
report lodged against the Bank and
accordingly the licence has been cancelled,
therefore, the accounts had been blocked
and the Bank which returned the cheques
unpaid had done the same by making a
remark of ''Bank Block', thus, the reason
for return of cheque unpaid being in
contravention with the provisions of
Section 138 of the N.I. Act, the complaint
thus is not maintainable.

Arguments of State

11. Per contra, Mr. K.P. Pathak,
learned AGA for the State, has submitted
that the summoning order passed by the
concerned Magistrate is legal and just in
the eyes of the law and at this stage, only a
prima facie case is to be seen and the
complaint
cannot
be
thrown
at
the
threshold. He further submits that lodging
of FIR with regard to missing of bag
containing signed and unsigned documents
including cheques, the check issued is not
mentioned in FIR, therefore, the arguments
as placed by learned counsel for the
applicant cannot be accepted. Regarding
other submissions of maintainability of
complaint, it is clear that it was well known
to the applicant that the Bank account was
blocked in the year 2017 itself and he
issued the cheque on 24.03.2021 having
knowledge that the account was not being
maintained by the applicant, thus he cannot
turn around and take a stand that the
reasons for return of cheque ''unpaid' is not
in consonance with the provisions of
Section 138 of the N.I. Act, for the
complaint to be maintainable.

12. I have heard learned counsel for
the applicant, learned A.G.A. for the State
and perused the record.

13. It is apposite to quote the
provisions of Section 138 of the Act, which
read as under:

"138.
Dishonor
of
cheque
for
insufficiency, etc., of funds in the
accounts:- 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
honor 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 provisions 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.
440 INDIAN LAW REPORTS ALLAHABAD SERIES

(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."

14. Section 138 deals with a cheque
drawn by a person "for the discharge, in
whole or in part, of any debt or other
liability." The section does not say that the
cheque should have been drawn for the
discharge of any debt or other liability of
the drawer towards the payee. Thus in
complaint under Section 138 of N.I. Act,
the Court has to presume that the cheque
had been issued for a debt or liability. This
presumption is rebuttable. However, the
burden of proving that a cheque had not
been issued for a debt or liability, is on the
accused. The applicant being holder of
cheque and the signature appended on the
cheque having not been denied by the
Bank, presumption shall be drawn that
cheque was issued for the discharge of any
debt or other liability. The presumption
under
Section
139
is
a
rebuttable
presumption. Before this Court refers to
various judgments of the Apex Court
considering Sections 118 and 139, it is
relevant to notice the general principles
pertaining to burden of proof on an accused
especially in a case where some statutory
presumption regarding guilt of the accused
has to be drawn.

15. A Three Judges' Bench of the
Hon'ble Apex Court in the case of C.C.
Alavi Haji v. Palapetty Muhammed and
Another6 has held as under:-

"14. Section 27 gives rise to a
presumption that service of notice has been
effected when it is sent to the correct
address by registered post. In view of the
said presumption, when stating that a notice
has been sent by registered post to the
address of the drawer, it is unnecessary to
further aver in the complaint that in spite of
the return of the notice unserved, it is
deemed to have been served or that the
addressee is deemed to have knowledge of
the notice. Unless and until the contrary is
proved by the addressee, service of notice
is deemed to have been effected at the time
at which the letter would have been
delivered in the ordinary course of
business. This Court has already held that
when a notice is sent by registered post and
is returned with a postal endorsement
refused or not available in the house or
house locked or shop closed or addressee
not in station, due service has to be
presumed. (Vide Jagdish Singh Vs. Natthu
Singh7; State of M.P. v. Hiralal8, and V.
Raja Kumari v. P. Subbarama Naidu9. It is,
therefore, manifest that in view of the
presumption available under Section 27 of
the Act, it is not necessary to aver in the
complaint under Section 138 of the Act that
service of notice was evaded by the
accused or that the accused had a role to
play in the return of the notice unserved.

*** *** ***

*** *** ***
17. It is also to be borne in mind that the
requirement of giving of notice is a clear
departure from the rule of criminal law,
4 All. Shiv Kumar Sharma Vs. State of U.P. & Anr.
441
where there is no stipulation of giving of a
notice before filing a complaint. Any
drawer who claims that he did not receive
the notice sent by post, can, within 15 days
of receipt of summons from the court in
respect of the complaint under Section 138
of the Act, make payment of the cheque
amount and submit to the Court that he had
made payment within 15 days of receipt of
summons
(by
receiving
a
copy
of
complaint
with
the
summons)
and,
therefore, the complaint is liable to be
rejected. A person who does not pay within
15 days of receipt of the summons from the
Court along with the copy of the complaint
under Section 138 of the Act, cannot
obviously contend that there was no proper
service of notice as required under Section
138, by ignoring statutory presumption to
the contrary under Section 27 of the G.C.
Act and Section 114 of the Evidence Act. In
our view, any other interpretation of the
proviso would defeat the very object of the
legislation. As observed in Bhaskaran
case10, if the "giving of notice" in the
context of Clause (b) of the proviso was the
same as the "receipt of notice" a trickster
cheque drawer would get the premium to
avoid receiving the notice by adopting
different strategies and escape from legal
consequences of Section 138 of the Act."

16. It is not necessary to aver in the
complaint that in spite of the return of the
notice unserved, it is deemed to have been
served or that the addressee is deemed to
have knowledge of the notice. Unless and
until the contrary is proved by the
addressee, the service of notice is deemed
to have been effected at the time, at which
the letter would have been delivered in the
ordinary course of business. In the case of
Ajeet
Seeds
Ltd.
vs.
K.
Gopala
Krishnaiah11, the Apex Court has held
that absence of averments in the complaint
about service of notice upon the accused is
the matter of evidence. The paragraph nos.
10 and 11 of the said judgement are
reproduced herein below:-

"10. It is thus clear that Section 114 of
the Evidence Act enables the Court to
presume that in the common course of
natural events, the communication would
have been delivered at the address of the
addressee. Section 27 of the GC Act gives
rise to a presumption that service of notice
has been effected when it is sent to the
correct address by registered post. It is not
necessary to aver in the complaint that in
spite of the return of the notice unserved, it
is deemed to have been served or that the
addressee is deemed to have knowledge of
the notice. Unless and until the contrary is
proved by the addressee, service of notice
is deemed to have been effected at the time
at which the letter would have been
delivered in the ordinary course of
business.
11. Applying the above conclusions to the
facts of this case, it must be held that the
High Court clearly erred in quashing the
complaint on the ground that there was no
recital in the complaint that the notice
under Section 138 of the NI Act was served
upon the accused. The High Court also
erred in quashing the complaint on the
ground that there was no proof either that
the notice was served or it was returned
unserved/unclaimed. That is a matter of
evidence. We must mention that in C.C.
Alavi Haji12, this Court did not deviate
from the view taken in Vinod Shivappa13,
but reiterated the view expressed therein
with certain clarification. We have already
quoted the relevant paragraphs from Vinod
Shivappa where this Court has held that
service of notice is a matter of evidence
and proof and it would be premature at the
stage of issuance of process to move the
442 INDIAN LAW REPORTS ALLAHABAD SERIES
High Court for quashing of the proceeding
under Section 482 of the Cr.P.C. These
observations are squarely attracted to the
present case. The High Court's reliance on
an order passed by a two-Judge Bench in
Shakti Travel & Tours is misplaced. The
order in Shakti Travel & Tours does not
give any idea about the factual matrix of
that case. It does not advert to rival
submissions. It cannot be said therefore that
it lays down any law. In any case in C.C.
Alavi Haji, to which we have made a
reference, the three-Judge Bench has
conclusively decided the issue. In our
opinion, the judgment of the two-Judge
Bench in Shakti Travel & Tours does not
hold the field any more."

17. Further the Apex Court in the
matter of Bharat Barrel & Drum
Manufacturing Company v. Amin Chand
Pyarelal14, had considered Section 118(a)
of the Act and held 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 and
defendant can prove the non-existence of a
consideration
by
raising
a
probable
defence. In paragraph No.12 following has
been laid down:-

"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. The bare
denial of the passing of the consideration
apparently does not appear to be any
defence. Something which is probable has
to be brought on record for getting the
benefit of shifting the onus of proving to
the plaintiff. To disprove the presumption,
the defendant has to bring on record such
facts and circumstances upon consideration
of which the court may either believe that
the consideration did not exist or its non-
existence was so probable that a prudent
man would, under the circumstances of the
case, shall act upon the plea that it did not
exist."

18. In its recent judgment, the Apex
Court in the matter of Basalingappa v.
Mudibasappa15 specifically in paragraph
nos. 23 and 24 has noticed as follows:-
4 All. Shiv Kumar Sharma Vs. State of U.P. & Anr.
443

"23.
We
may
now
notice
the
judgement relied on by the learned counsel
for the complainant i.e. judgment of this
Court in Kishan Rao v. Shankargouda16.
This Court in the above case has examined
Section 139 of the Act. In the above case,
the only defence which was taken by the
accused was that cheque was stolen by the
appellant. The said defence was rejected by
the trial court. In paras 21 to 23, the
following was laid down: (SCC pp. 173-74)

21. ....

22. ....

27. Section 139 of the Act is an
example of a reverse onus clause that has
been included in furtherance of the
legislative objective of improving the
credibility of negotiable instruments. While
Section 138 of the Act specifies a strong
criminal
remedy
in
relation
to
the
dishonour of cheques, the rebuttable
presumption under Section 139 is a device
to prevent undue delay in the course of
litigation. However, it must be remembered
that the offence made punishable by
Section 138 can be better described as a
regulatory offence since the bouncing of a
cheque is largely in the nature of a civil
wrong whose impact is usually confined to
the private parties involved in commercial
transactions. In such a scenario, the test of
proportionality
should
guide
the
construction and interpretation of reverse
onus clauses and the defendant-accused
cannot be expected to discharge an unduly
high standard of proof."

23. No evidence was led by the
accused. The defence taken in the reply to
the notice that cheque was stolen having
been rejected by the two courts below, we
do not see any basis for the High Court
coming to the conclusion that the accused
has been successful in creating doubt in the
mind of the Court with regard to the
existence of the debt or liability. How the
presumption under Section 139 can be
rebutted on the evidence of PW 1, himself
has not been explained by the High Court.

24. The above Kishan Rao17 case was
a case where this Court did not find the
defence raised by the accused probable.
The only defence raised was that cheque
was stolen having been rejected by the trial
court and no contrary opinion having been
expressed by the High Court, this Court
reversed the judgment of the High Court
restoring the conviction. The respondent
cannot take any benefit of the said
judgment, which was on its own facts."

(Emphasis added)

19. The matter regarding stolen
cheque has been elaborately dealt with by
this Court in the case of Ranjit v. State of
U.P. and another18, wherein the plea
taken on behalf of the applicant regarding
non-maintainability of the complaint on the
ground of stolen of cheques has been
rejected. As regards the judgements placed
on by learned counsel for the applicant are
not applicable in the facts of the present
case as the applicant was well aware of the
fact that he is issuing a cheque towards
payments of debt or liability from an
account, which is blocked, of which the
complainant was not aware.

20. In view of the settled legal
position, as noticed above, it is clear that at
this stage, only a prima facie case is to be
seen and the complaint cannot be thrown at
the threshold and the factum of disputed
service of notice requires adjudication on
the basis of evidence and the same can only
be done and appreciated by the trial court.

21. All the submissions made by
learned counsel for the applicant are
disputed questions of fact. Therefore, when
the facts have to be established by way of
444 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence, this Court while exercising the
powers under section 482 of Cr.P.C., cannot
interfere with such proceedings. Hence, no
grounds are made out for quashing of the
proceedings under section 138 of the
Negotiable Instruments Act.

22. On the basis of discussions made
herein above, this Court finds that there is
no illegality or infirmity in the summoning
order dated 05.04.2022 passed by the
concerned court below. Therefore, no
interference is required at this stage.

23. In view of the aforesaid, the
application is, accordingly, dismissed.

24. The Registrar General of this
Court shall communicate this order to the
Chairman, Bar Council of Uttar Prdesh,
Allahabad; President, High Court Bar
Association, Allahabad and Secretary, High
Court
Bar
Association,
Allahabad,
apprising
them
of
the
suggestions
expressed in paragraph nos. 3 to 6 of this
order.
----------
(2023) 4 ILRA 444
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. Bail Application No. 833 of 2023

Rajendra Agarwal urf Bablu ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Vijit Saxena, Sri Rakesh Kumar Pandey

Counsel for the Respondent:
G.A.
(A) Criminal Law - Indian Penal Code,
1860 - Sections 354, 376(D)(B), 323, 328,
506, 366A & 120B , The Protection of
Children From Sexual Offences Act, 2012 -
Section
5/6,
The
Code
of
criminal
procedure, 1973 - Sections 161 and 164 -
The Juvenile Justice (Care And Protection
Of Children) Act, 2000 - "Child in Need of
Care and Protection" - Section 29, 30, 31 ,
The Juvenile Justice (Care and Protection
of Children) Act, 2015 - Section 27 ,
Section 110(1) , Uttar Pradesh Juvenile
Justice (Care and Protection of Children)
Rules, 2019 - Rules 16 , 17 & 35 .

Serious allegations against applicant (father of
victim) - betrayed a pious relationship of father
and daughter (victim, minor girl) - Victim's
narration of prosecution story exaggerated -
Victim's facts were consistent in FIR and
statements - unable to point out a single place
of occurrence and date/month of occurrence -
Victim's mother's failure to protest or lodge FIR
suggests improbability - Co-accuseds granted
bail for serious rape allegation. (Para -
11,12,13)

HELD:-All the co-accused granted bail against
whom very serious allegation of rape was
levelled. Court inclined to grant bail to applicant
also. (Para -13)

Bail application allowed. (E-7)

List of Cases cited:

1. Manoj Kumar Khokhar Vs St. of Raj. & anr. ,
(2022)3 SCC 501

2. Brijmani Devi Vs Pappu Kumar , (2022) 4 SCC
497

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Applicant-Rajendra Agarwal alias
Bablu has approached this Court by way of
filing present bail application seeking
enlargement on bail in Case Crime No. 860
of 2021, under Sections 354, 376(D)(B),
323, 328, 506, 366A, 120B IPC and 5/6