# Udai Shanker Mishra v. Om Prakash Shukla

- **Citation:** (2016) 6 ILRA 208
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-28
- **Bench:** Sudhir Kumar Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-shanker-mishra-v-om-prakash-shukla-44057
- **Pages:** 13

## Text

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208 INDIAN LAW REPORTS ALLAHABAD SERIES

In the present case, it has been already held that the District Magistrate, Lalitpur had
considered the evidence on record, gave reasons for his belief. For this reason, the case referred by
the learned counsel for the appellants is of no help to the appellants.

2. Criminal Appeal No.4542 of 2010, Shashi Kant Chaurasiya and another Vs.
State of U.P., dated 15.10.2014

In this case non-recording of reasons by the District Magistrate concerned led this
Court to hold that matter was not considered properly by the District Magistrate.

22. For the reason stated above, this case is also of no help to the appellants.

23. The appeal has no substance and it deserves to be dismissed. However, expeditious
disposal of the gangster case pending against the alleged gangster Irfan Beg is also desirable in
view of the peculiar circumstances of the case.

24 Accordingly, appeal is dismissed and the Special Judge, Gangster, Lalitpur as also the
Magistrates before whom cases registered on the basis of Case Crime No.1109 of 2009, P.S.
Chirgaon, Jhansi and Case Crime No.817 of 2012, under Sections 457, 380, 411, IPC, P.S.
Talbehat, District Lalitpur are pending, are directed to conclude the trial of cases expeditiously.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.06.2016

BEFORE

THE HON'BLE SUDHIR KUMAR SAXENA, J.

Criminal Appeal No.- 649 Of 2013

Udai Shanker Mishra ...Appellant
Versus
Om Prakash Shukla ...Respondent

Counsel for Appellant:
S.K. Mehrotra, I D Shukla, Praveen Tripathi

Counsel for Respondent:
I.B. Singh, Aditya Narain, Parijaat Belaura

Negotiable Instruments Act, 1881 - Sections 138 & 139 - Criminal Appeal against Acquittal -
Presumption as to Legally Enforceable Debt - Burden of Proof - Dishonour of Cheque on
Grounds of Insufficiency of Funds and Stop Payment - Scope of Appellate Interference
6 All. Udai Shanker Mishra Vs Om Prakash Shukla

209
Once the execution of cheque and signature of the accused thereon are admitted, a mandatory
presumption under Sections 118 and 139 of the Negotiable Instruments Act arises in favour of
the complainant that the cheque was issued in discharge of a legally enforceable debt or liability.
The burden then shifts upon the accused to rebut the said presumption by leading cogent
evidence. Mere denial in reply to statutory notice or suggestions in cross-examination, without
entering the witness box or adducing defence evidence, is insufficient to rebut the statutory
presumption.

Dishonour of cheque on the ground of "stop payment" instructions also attracts the offence
under Section 138 of the Act. Non-payment despite service of statutory notice completes the
offence.

The trial court committed a gross error of law in shifting the burden of proof upon the
complainant and in scrutinizing the source of funds, validity of partnership, and alleged
inconsistencies, ignoring the mandatory presumption under Section 139 of the Act. The approach
adopted by the Magistrate was perverse and contrary to settled law laid down by the Supreme
Court in Rangappa v. Sri Mohan, K.N. Beena v. Muniyappan, Hiten P. Dalal v. Bratindranath
Banerjee and other binding precedents.

Appellate court is justified in reversing an order of acquittal where the judgment is based on
misapplication of law, non-consideration of statutory presumptions, and where findings are
manifestly erroneous.

Appeal allowed. Judgment of acquittal set aside. Accused convicted under Section 138 N.I. Act
and sentenced to one year simple imprisonment with fine and compensation.

Case Listed:-
C.Keshvamurthy v. H.K. Abdul Zabbar, 2013(4) Civil Court Cases 200 (SC)
Rangappa v. Sri Mohan reported in 2010(3) Criminal Court Cases, page 22 (SC)
Anil Sachar and another v. Shree Nath Spinner Private Limited and others, (2011) 13 Supreme
Court Cases 148.
Goaplast (P) Ltd. v. Chico Ursula D'Souza
K.N. Beena v. Muniyappan and another, (2001) 8 SCC page 458
Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC page 16
Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 Supreme Court Cases 54.
P. Venugopal v. Madan P. Sarathi (2009) 1 Supreme Court Cases 492
K.Prakashan v. P.K. Surenderan (2008) 1 Supreme Court Cases 258

(Delivered by Hon'ble Sudhir Kumar Saxena, J.)

1. This criminal appeal filed under Section 378(4) Cr.P.C. is directed against the judgment
and order dated 22.9.2009 passed by Chief Judicial Magistrate, Sultanpur acquitting accused Om
Prakash Shukla of the charges framed under Section 138 N.I.Act ('Act' in short).

2. I have heard Sri S.K.Mehrotra, learned counsel for appellant and Sri Jyotindra Misra,
Senior Counsel for respondent-accused and gone through the record.
210 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Prosecution case apparent from complaint and statements under Section 200/202 Cr.P.C.
in brief is that Udai Shanker Misra appellant filed a complaint before Chief Judicial Magistrate,
Sultanpur under Section 138 of the N.I.Act alleging that Om Prakash Shukla was granted license
for running diesel-petrol outlet from Bharat Petroleum. Since he was short of the fund, sought
financial help from complainant as his father Sri Shyam Narain Misra had recently retired from
UCO Bank as Assistant Manager under voluntary retirement scheme. He had received Rs.
20,00000/- on retirement. Sri Shukla persuaded complainant's father who agreed and extended
financial help to the tune of Rs. 16,00000/-, he executed a written-note on 19.10.2001 on a stamp
paper of Rs. 100/- expressing commencement of partnership business with the complainant.
Partnership deed was also executed on 10.2.2003 duly verified by Sudhakar Misra, Notary, along
with two witnesses, namely, Ashok Kumar and Prem Lal Srivastava, Advocate. It was agreed that
Om Prakash Shukla would be partner of 51% and Udai Shanker Misra of 49%. Since for sometime
nothing was paid despite repeated protests, accounts were finally settled on 30th March, 2005 and
accused gave banker's cheque of Rs. 3,95,575/- towards complainant's share in the profits and
unilaterally dissolved the partnership. He also executed another cheque for Rs. 16,00000/- which
was principal amount advanced by complainant's father. These cheques were presented by
complainant before State Bank, Kurebhar on 26.4.2005. First cheque was dishonoured on account
of insufficiency of funds, while another cheque for Rs. 3,95,572/- was returned unpaid under the
instructions of 'stop payments'. Thereafter complainant gave a written notice on 10.5.2005 as
required under Section 138 of N.I.Act. Despite notice, an evasive reply was sent by respondent
stating that both the cheques were not issued by him. Non-payment of cheque led to cause of
action, hence complaint.

4. After recording statements of complainant, Shyam Narain and Ashok kumar under
Sections 200 and 202 Cr.P.C., accused was summoned. Accused did not plead guilty, hence under
Section 254 Cr.P.C. Complainant examined himself as P.W.1, his father Shyam Narain Misra as
P.W.2 and Prem Lal Srivastava as P.W.3, no other witness was examined.

5. Accused neither appeared himself as witness nor examined any witness in his defence.

6. Chief Judicial Magistrate, Sultanpur held that complainant has failed to prove his case
and she acquitted the accused vide her judgment and order dated 22.9.2009 which is impugned in
this appeal.

7. Submission of Sri S.K.Mehrotra, learned counsel is that trial court has committed gross
error of law by shifting burden of proof on complainant. He relied on certain decisions which will
be discussed later on.

8. Section 118 of N.I.Act contemplates presumption in respect of Negotiable Instruments.
Section 138 provides that 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, on
account of insufficient fund etc. will be deemed to have committed offence. Section 138 despite
6 All. Udai Shanker Mishra Vs Om Prakash Shukla

211
notice makes non-payment of amount of cheque, a criminal liability and provides maximum
punishment of 2 years imprisonment or fine or both. Section 139 which is also relevant envisages
presumption for discharge of debt or liability if cheque is in the nature of Section 138. Section 139
is being reproduced below-

" 139. Presumption in favour 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 discharge, in whole or in part, of any debt or other liability."

9. In the case of C.Keshvamurthy v. H.K. Abdul Zabbar, 2013(4) Civil Court Cases
200 (SC), Apex Court in para 9 has held that presumption under Section 139 of the Act includes
the presumption of the existence of a legally enforceable debt or liability. Para 9 of the judgment is
being reproduced below-

"9. Secondly, as far as the proposition canvased on the basis of the judgment in
Krishna Janardhan Bhat (supra) is concerned, it must be noted that the same has been specifically
held to be not a correct one in paragraph 26 of the judgment rendered by a three- Judge Bench in
Rangappa vs. Sri Mohan, reported in [2010(11)SCC 441]. The judgment clearly held that the
presumption under Section 139 of the Negotiable Instruments Act, 1881, includes the presumption
of the existence at a legally enforceable debt or liability. That presumption is required to be
honoured, and if it is not so done, the entire basis of making these provisions will be lost.
Therefore, it has been held that it is for the accused to explain his case and defend it once the fact
of cheque bouncing is prima facie established. The burden is on him to disprove the allegations
once a prima facie case is made out by the Complainant."

10. In this case, it was held that it is for the accused to explain his case and defend it once
the fact of cheque bouncing is prima facie established in view of the decision given in the case of
Rangappa v. Sri Mohan reported in 2010(3) Criminal Court Cases, page 22 (SC).

11. In the case of Anil Sachar and another v. Shree Nath Spinner Private Limited and
others, (2011) 13 Supreme Court Cases 148. Sections 116, 139 of Act were discussed.

12. In para 18, Hon'ble Court observed that in view of Section 139, there is a presumption
with regard to consideration when a cheque has been issued by drawer of the cheque.

13. Para 21 of the judgment is relevant and is being reproduced herein below-

"21. Looking to the facts of the case and law on the subject, we are of the view that
all the four cheques referred to in both the complaints are presumed to have been given for
consideration. The presumption under Section 139 of the Act has not been rebutted by the accused
and, therefore, we are of the view that the trial court wrongly acquitted the accused by taking a
view that there was no consideration for which the cheques were given by Munish Jain to the
complainants. The aforesaid incorrect view was wrongly confirmed by the High Court. We,
212 INDIAN LAW REPORTS ALLAHABAD SERIES

therefore, set aside the acquittal order and convict accused Munish Jain under Section 138 of the
Act."

14. Case of Rangappa v. Sri Mohan, (2010) 11 SCC, 441, para 18 pertains to a case
where payment was stopped by drawer. In para 18, it was observed that when a cheque is
dishonoured on account of "stop-payment" instructions sent by the accused to his bank in respect of
a post-dated cheque, irrespective of insufficiency of funds in the account, Section 138 is attracted.
Reliance has been placed on a decision of Goaplast (P) Ltd. v. Chico Ursula D'Souza which can
be usefully quoted below-

"18. Ordinarily in cheque bouncing cases, what the courts have to consider is
whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if
so, whether the accused was able to rebut the statutory presumption contemplated by Section 139
of the Act. With respect to the facts of the present case, it must be clarified that contrary to the trial
court's finding, Section 138 of the Act can indeed be attracted when a cheque is dishonoured on
account of `stop payment' instructions sent by the accused to his bank in respect of a post-dated
cheque, irrespective of insufficiency of funds in the account. This position was clarified by this
Court in Goa Plast (Pvt.) Ltd. v. Chico Ursula D'Souza, (2003) 3 SCC 232, wherein it was held:

"Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of
1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility
to negotiable instruments in business transactions. These provisions were intended to discourage
people from not honouring their commitments by way of payment through cheques. The court
should lean in favour of an interpretation which serves the object of the statute. A post-dated
cheque will lose its credibility and acceptability if its payment can be stopped routinely. The
purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque.
Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse
the accommodation given to him by a creditor by way of acceptance of a post-dated cheque.

In view of Section 139, it has to be presumed that a cheque is issued in discharge of
any debt or other liability. The presumption can be rebutted by adducing evidence and the burden
of proof is on the person who wants to rebut the presumption. This presumption coupled with the
object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a
post-dated cheque, a party should not be allowed to get away from the penal provision of Section
138. A contrary view would render S. 138 a dead letter and will provide a handle to persons trying
to avoid payment under legal obligations undertaken by them through their own acts which in other
words can be said to be taking advantage of one's own wrong. ..."

15. Para 26 and 27 are being reproduced below-

"26. In light of these extracts, we are in agreement with the respondent-claimant that
the presumption mandated by Section 139 of the Act does indeed include the existence of a legally
6 All. Udai Shanker Mishra Vs Om Prakash Shukla

213
enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat
(supra) may not be correct.

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 accused/defendant cannot be
expected to discharge an unduly high standard or proof."

16. In the case of K.N. Beena v. Muniyappan and another, (2001) 8 SCC page 458,
Court was of the view that shifting burden of proof on the complainant was wrong. Accused had to
prove by leading cogent evidence that there was no debt or liability. The first respondent not having
led any evidence could not be said to have discharged the burden. Para 6 and 7 of the judgment are
being quoted below-

"6. In our view the impugned Judgment cannot be sustained at all. The Judgment
erroneously proceeds on the basis that the burden of proving consideration for a dishonored
cheque is on the complainant. It appears that the learned Judge had lost sight of Sections 118 and
139 of the Negotiable Instruments Act. Under Sections 118, unless the contrary was proved, it is to
be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for
consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that
the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or
liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been
issued for a debt or liability. This presumption is rebutable. However the burden of proving that a
cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten
P. Dalal vs. Bratindranath Banerjee reported in (2001) 6 S.C.C. 16 has also taken an identical
view.

.In this case admittedly the 1st Respondent has led no evidence except some formal
evidence. The High Court appears to have proceeded on the basis that the denials/averments in his
reply dated 21st May, 1993 were sufficient to shift the burden of proof onto the
Appellant/Complainant to prove that the cheque was issued for a debt or liability. This is an
entirely erroneous approach. The 1st Respondent had to prove in the trial, by leading cogent
evidence, that there was no debt or liability. The 1st Respondent not having led any evidence could
not be said to have discharged the burden cast on him. The 1st Respondent not having discharged
the burden of proving that the cheque was not issued for a debt or liability, the conviction as
awarded by the Magistrate was correct. The High Court erroneously set aside that conviction."
(emphasis supplied)
214 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Mere denial in the notice was not found to be sufficient for shifting burden of proof. In
this case, accused had not led any evidence.

18. In the case of Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC page 16,
Hon'ble Apex Court in para 22 held that 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 and
Courts are bound to raise this presumption.

19. Further in para 24, the Court held that in the case of a discretionary presumption the
presumption if drawn may be rebutted by an explanation which might reasonably be true and which
is consistent with the innocence of the accused but not in the case of presumption of law.

20. Para 22 and 24 of the judgment are being quoted below-

" 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). Such a presumption is a presumption of law, as
distinguished from a presumption of fact which describes provisions by which the court "may
presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the
presumption of innocence, because by the latter all that is meant is that the prosecution is obliged
to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution
may be discharged with the help of presumptions of law or fact unless the accused adduces
evidence showing the reasonable possibility of the non-existence of the presumed fact.

24. Judicial statements have differed as to the quantum of rebutting evidence
required. In Kundan Lal Rallaram vs Custodian, Evacuee Property, Bombay AIR 1961 SC 1316,
this Court held that the presumption of law under Section 118 of Negotiable Instruments Act could
be rebutted, in certain circumstances, by a presumption of fact raised under Section 114 of the
Evidence Act. The decision must be limited to the facts of that case. The more authoritative view
has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai
Balwantrai Desai vs State of Maharashtra AIR 1964 SC 575, where this Court reiterated the
principle enunciated in State of Madras vs Vaidyanath Iyer (Supra) and clarified that the
distinction between the two kinds of presumption lay not only in the mandate to the Court, but also
in the nature of evidence required to rebut the two. In the case of a discretionary presumption the
presumption if drawn may be rebutted by an explanation which "might reasonably be true and
which is consistent with the innocence" of the accused. On the other hand in the case of a
mandatory presumption

"the burden resting on the accused person in such a case would not be as light as it
is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be
6 All. Udai Shanker Mishra Vs Om Prakash Shukla

215
discharged merely by reason of the fact that the explanation offered by the accused is reasonable
and probable. It must further be shown that the explanation is a true one. The words 'unless the
contrary is proved' which occur in this provision make it clear that the presumption has to be
rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be
proved when its existence is directly established or when upon the material before it the Court finds
its existence to be so probable that a reasonable man would act on the supposition that it exists.
Unless, therefore, the explanation is supported by proof, the presumption created by the provision
cannot be said to be rebutted......"

21. In the above case also, accused had not entered the witness box. (In para 33).

22. Written argument have been submitted by accused-respondent.

23. It is contended therein that accused is living in Gujarat along with his wife and children
and his children are getting education in Gujarat. Complainant is son-in-law of accused's real
brother in law. As such the complainant and accused were taking care of petrol pump jointly.
Accused would leave blank cheques with complainant for business purposes but he has misused
two such cheques.

24. Submission is that whether cheque was issued for discharging the debt or liability is to
be proved by the prosecution and no presumption can be made under Section 139 of N.I.Act. He
has placed reliance in the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4
Supreme Court Cases 54. In this case, trial court had convicted the accused, Sesions Judge
dismissed the appeal and the High Court in revision has reversed the order. In para 25, the Court
has observed that prosecution did not produce any books of accounts or any other proof to show
that he got so much money from the Bank. He admittedly did not have any written document
pertaining to the accused. He accepted that there was no witness to the transaction. Moreover,
observations made in the above judgment have not been found correct by three Judge Bench in the
case of Rangappa v. Sri Mohan, 2010 (11) SCC 441. Para 14 of the judgment is reproduced below-

"14. In light of these extracts, we are in agreement with the respondent-claimant that
the presumption mandated by Section 139 of the Act does indeed include the existence of a legally
enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat
(supra) may not be correct. However, this does not in any way cast doubt on the correctness of the
decision in that case since it was based on the specific facts and circumstances therein. As noted in
the citations, this is of course in the nature of a rebuttable presumption and it is open to the
accused to raise a defence wherein the existence of a legally enforceable debt or liability can be
contested. However, there can be no doubt that there is an initial presumption which favours the
complainant."

(emphasis provided)
216 INDIAN LAW REPORTS ALLAHABAD SERIES

25. In the case of P. Venugopal v. Madan P. Sarathi (2009) 1 Supreme Court Cases
492, appeal was dismissed and all the three courts below arrived at a concurrent finding that the
complainant has been able to prove his case as such, the burden of proof stands shifted upon the
appellant. Again a finding of fact was arrived at that the appellant had failed to discharge his
burden. Thus, this case is of no help.

26. Agreement executed by accused has been assailed on the ground that there is difference
of date in the statement under Section 200 Cr.P.C. and said agreement is forged paper. No such
case was taken before court below as accused has not disowned the signature on these papers. It is
admitted case that accused himself has signed it which has not been specifically denied by him. No
suggestion of challenging notorial agreement which was attested by Premlal and Ashok Kumar has
been given by accused and he does not disown signature on the said paper. Absence of registration
of partnership firm merely makes it unable to sue or be sued. In the bank statement, details of
amount have been given. Submission that according to prosecution case entire amount would go to
more than 22 lacs and why he would accept the cheque for a lesser amount is speculative. Burden
rests upon accused who does not discharge it. It has come that parties are closely related and petrol
pump was allotted in favour of accused. Therefore, it was natural to seek help and to give financial
assistance enabling the accused to start business, was also not unnatural conduct. After retirement
money needs to be invested. A near relative needs help which was provided. Speculative questions
or improbabilities do not answer the presumption raised under Section 139 of the Act.

27. In the case of K.Prakashan v. P.K. Surenderan (2008) 1 Supreme Court Cases 258,
it was found that appellate court should not reverse the judgment of acquittal merely because the
other view was possible. The judgment of the acquittal was not liable to be reversed by appellate
court when another view was possible.

28. Complainant himself has appeared in witness-box. Prosecution has examined his father
Shyam Narain and independent witnesses were also examined. Ashok Kumar testified under
Section 200 Cr.P.C. while Premlal Srivastava under Section 254 Cr.P.C.. Therefore, the decision of
Vijendra Singh v. Delhi 1997 ACC page 589 is not applicable as both witnesses have proved the
documents. Since it was a transaction between close relatives, submission that why should he
accept the cheque of less amount or against C.C. Limit is of no significance.

29. Case of Ritesh Chakravarti 2006 (12) SCC 321 does not deal with presumptions under
Section 139 of the Act.

30. In the case at hand, it was proved by complainant, his father Shyam Narain, Ashok
Kumar (202 Cr.P.C.) and Prem Lal (254 Cr.P.C.) that Om Prakash had signed both the deeds. It
was not suggested to any witness that deeds do not contain the signature of Om Prakash accused.
First deed written on Rs. 100/- stamp is in the hand writing of accused has not been disputed in
cross-examination or in suggestion given to witnesses.
6 All. Udai Shanker Mishra Vs Om Prakash Shukla

217
31. From the above discussions, it is manifest that under Sections 138 and 139 of the Act, it
is incumbent upon the court to raise presumption and accused can rebut the same by leading
evidence and then burden would shift to the complainant.

32. In the case in hand, accused has not entered the witness box nor has led any evidence in
defence. Learned Magistrate while acquitting the accused had proceeded from reverse angle.
Magistrate has started finding fault with the prosecution case instead of raising presumption under
Section 139 of the Act. Accused does not deny his signatures on cheque. One Cheque has been
dishonoured for the reason of insufficient funds and another cheque returned unpaid under the
instructions of 'stop payment' received by Bank. Both grounds are covered under Section 138 of the
Act. Despite notice, payment was not made, as such complainant had done his part. Consequently,
presumption under Section 139 of the Act had to be raised. Learned Magistrate did not raise
presumption as contemplated under Section 139 of the Act.

33. First reason given by the learned Magistrate is that date mentioned by complainant's
father is different from the date mentioned in the complaint. Date of partnership deed is different
from the dates mentioned in the criminal case filed, since dates were not clear, partnership deed
becomes doubtful. Relevant part of the judgment is being reproduced below-

"...... इस प्रकार पररवादी साक्षीगण व पररवादपत्र में श्चभन्न-श्चभन्न श्चतश्चथ प्रथम श्चर्ल्जखत भागीदारी के सम्बन्ध में प्रस्तुत
करने के कारण यह तथ्य स्पष्ट नहीों है श्चक प्रथम श्चर्ल्जखत भागीदारी श्चकस श्चतश्चथ की है वास्तश्चवकता में है I जहााँ श्चितीय पाटटनरश्चशप डीड
का प्रश्न है वह प्रथम श्चर्ल्जखत भागीदारी जो तय हुई थी इसी का पाटटनरश्चशप डीड है जो नोटरी िारा प्रमाश्चणत है और इस प्रकार जब श्चक
प्रथम श्चर्ल्जखत भागीदारी की श्चतश्चथ ही स्पष्ट नहीों है तो उस पर आधाररत श्चितीय पाटटनरश्चशप डीड भी स्वयों ही सोंश्चदग्ध हो जाती है I
........."

34. She further scraps the prosecution case by saying that petrol pump was allowed in the
name of accused. Without informing company how can partnership be settled and same is not legal.
Another reason given by Magistrate is that signature of accused alone and not that of complainant
or his father are on the first note executed on Rs. 100/- stamp. No reason has been assigned by
complainant or witness for this omission. Observation made in this regard is being quoted below-

"... इसके अश्चतररक्त प्रथम श्चर्ल्जखत भागीदारी पर श्चसफट मुल्जिम ओम प्रकाश शुक्ला के ही हस्ताक्षर है इसपर न तो
वादी के हस्ताक्षर है न ही उसके श्चपता के हस्ताक्षर हैं. I परन्तु वादी अथवा उसके श्चपता के हस्ताक्षर क्ोों नहीों है इसका कोई कारण
पररवादी अथवा उसके साश्चक्षयोों िारा स्पष्ट नहीों श्चकया गया I जब श्चक भागीदारी श्चबना सभी भागीदारोों के हस्ताक्षर के माननीय नहीों है
श्चवशेष तौर पर तब जब श्चक मुल्जिम िारा अपने हस्ताक्षर को नकारते हुए फजी होना कहा गया हो I "

35. It has come on record that first note was not partnership deed but it was an
acknowledgment executed on a stamp paper of Rs. 100/- on 10.2.2003. Thus entering into
partnership by the first note was not acceptable to the Magistrate. So far as second deed is
concerned, learned Magistrate has considered affidavit, given by one Om Prakash that he has
wrongly signed it, deed has not been written in his presence nor has he signed it to disbelieve it.
Moreover, complainant himself has not proved the partnership deed rather his father has proved. It
has come on record that complainant and father both were examined by the Magistrate. Learned
218 INDIAN LAW REPORTS ALLAHABAD SERIES

Magistrate forgot that these things were not necessary for a partnership, although same was duly
proved.

36. In para 5, learned Magistrate has held that partnership deed was not proved which is the
basis of the complaint, as such the basis for issuing cheque to accused has not been proved. Para 5
of the judgment is being reproduced below-

" ........ इस प्रकार उपरोक्त समस्त तथ्यात्मक श्चवश्लेषण से चूाँश्चक न तो पररवादी िारा वश्चणटत दोनोों पाटटनरश्चशप डीड
की न तो तारीख श्चनश्चित रूप से प्रमाश्चणत की गयी और न ही भागीदारी प्रर्ेख ही सही तरीके से प्रमाश्चणत श्चकया गया अतः दोनोों
भागीदारी प्रर्ेख प्रमाश्चणत न होने के कारण पररवादी का जो पररवाद का आधार है श्चजसके आधार पर पररवादी िारा मुल्जिम पर ऋण व
दाश्चयत्व का अश्चधरोपण श्चकया गया है चूाँश्चक वह ऋण व दाश्चयत्व ही प्रमाश्चणत नहीों पाया जा रहा है I अतः मुल्जिम िारा पररवादी के पक्ष में
चेक श्चनगटत श्चकया जाने का कोई पयाटप्त आधार प्रमाश्चणत नहीों पाया जाता I "

37. Learned Magistrate does mention that signatures on cheque has been admitted by
accused. Magistrate refers to the case of the accused that complainant had run away with the banker
cheque on 15.2.2006 when accused had gone to Gujarat. Another reason given is that complainant's
father himself was Assistant Manager as such he should have known that he was accepting cheque
of Rs. 16,00000/- while C.C. Limit was Rs. 6,00000/- for which no explanation has been given by
complainant and his father. Learned Magistrate has held that complainant did not produce any
document to show that his father had received Rs. 18,00000/- after his retirement' and it is not clear
as to whether he had sufficient funds or not, as such it could not be clarified whether amount was
available in the cash and was given after withdrawing from Bank. Learned Magistrate refers to
some more contradictions in the statements of complainant and his father and states that
complainant should have filed evidence to show that payment was made through bank draft and he
did not explain as to why he had accepted a cheque of Rs. 16,00000/-. In the complaint, payment is
said to be made through UCO Bank, Allahabad. According to Magistrate, there are certain
contradictions in their statements as such same are not liable to be believed.

38. In para 9, learned Magistrate has observed that the partnership deed was made but why
date has not been mentioned ? Complainant did not produce any evidence to prove partnership.
According to Magistrate, it is not clear who has made signatures over cheque. Complainant has not
led any documentary evidence to show the entire amount received on retirement and that same was
deposited in the UCO Bank, Allahabad. With these observations, learned Magistrate came to the
conclusion that complainant has failed to prove his case and she acquitted the accused.

39. Was Magistrate deciding the validity of partnership ? Was it open to her to non-suit
complainant because source of money was not allegedly proved ?

40. From the above discussions, it is apparent that learned Magistrate has relied upon nonexistent contradictions and non-suited the complainant therefor. She doubted the genuineness of the
partnership deed while accepting signature of accused thereon. She also doubted the complainant's
version on the ground that he has failed to produce documentary evidence that his father actually
received Rs. 20,00000/- on retirement as Assistant Manager. Magistrate also doubted the case on
6 All. Udai Shanker Mishra Vs Om Prakash Shukla

219
the ground that complainant did not pass any resolution to dissolve partnership in 2005 when it was
agreed to work till life and one of the witness of the partnership deed has not proved the partnership
? What learned Magistrate has conveniently chosen to ignore is that Prem Lal Srivastava,
Advocate, another witness of the partnership deed had proved the partnership in his statement
under Section 254 Cr.P.C. Ashok Kumar (whose affidavit filed subsequently relied on by trial
court) had proved the partnership deed in his statement under Section 202 Cr.P.C.

41. It is apparent from the order-sheets that complainant wanted to file passbook to show
that money was paid from his account but his application was not allowed vide order dated
3.9.2008. Was it open for the Magistrate to consider validity of the partnership deed, genuineness
of the retiral dues and payment made to accused ? Both the witnesses Ashok Kumar and Prem Lal
Srivastava had proved the deed. Ashok Kumar under Section 202 Cr.P.C. while Prem Lal under
Section 254 Cr.P.C. Complainant and Shyam Narain both were examined by prosecution.

42. Magistrate has failed to raise, the legal presumption when signatures on cheques have
been admitted and they have been dishonoured. Despite notice, payment was not made. Accused
has not appeared in the witness box nor has led any evidence in defence. Even in these
circumstances, presumption required under Sections 138 and 139 of N.I.Act have not been raised.
Learned Magistrate had proceeded to decide the case from wrong angle. Magistrate has failed to
take into account the legal provisions and had erroneously shifted the burden upon complainant. In
the absence of any evidence in defence, Magistrate ought to have believed the complaint case in
view of Sections 138/139 of the Act.

43. It was pointed out that on 5.9.2009, transfer application was filed by complainant
seeking transfer from the court of Chief Judicial Magistrate, Sultanpur. It is also apparent from
record that written arguments were filed citing decision of Hon'ble Apex Court given in the case of
K.M. Beena (supra) MMTC Ltd. v. Medchl Chemicals & Pharma (P) Ltd. (2002) (44) SCC 369 but
Magistrate has not referred to them in her judgment.

44. When ingredients of Section 138 namely (a) accused drew the cheque on an account
maintained by him (b) cheque issued for the discharge of debt/liability (c) cheques were presented
within six months (d) cheques returned unpaid for insufficiency of funds and stop payment (e)
notice was given but no payment was made, stood proved and defence having not led any evidence,
conviction should have been recorded.

45. From the above discussion, it is established that prosecution had proved its case beyond
reasonable shadow of doubt. Judgment is absolutely perverse and contrary to law. Court does not
want to say much against trial court. Consequently, this appeal deserves to be allowed.

46. Appeal is allowed. Judgment and order dated 22.9.2009 is set aside. Respondent is
convicted under Section 138 of the Negotiable Instruments Act and sentenced to a period of one
year simple imprisonment in addition to fine of Rs. 38,00000/- (thirty eight lacs) out of which a
sum of Rs. 35,00000/- (thirty five lacs) will be paid as compensation to the complainant-appellant.
220 INDIAN LAW REPORTS ALLAHABAD SERIES

47. Respondent is directed to surrender before Chief Judicial Magistrate, Sultanpur, within
a month, failing which non-bailable warrant will be issued by Chief Judicial Magistrate to secure
his presence.

48. Record will be remitted forthwith.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.06.2016

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Appeal No.- 783 Of 1982

Ram Murat & Ors. ...Appellants
Versus
State ...Respondent

Counsel for Appellants:
M. Kumar, S. K. Kulshrestha

Counsel for Respondent:
A.G.A.

Criminal Appeal - Sections 307/34 & 323 IPC - Common Intention - Sudden Fight - Cross
Version - Role of Accused - Only Lathi Assigned - Simple Injuries - Application of Section 34 IPC
- Conviction Modified - Sentence Reduced

The criminal appeal was preferred against the judgment and order of conviction passed by the Sessions Court
convicting the accused under Sections 307/34 and 323 IPC.

During pendency of the appeal, three accused-appellants died and the appeal stood abated against them. The
appeal survived only in respect of appellant Hari Shanker.

In the present case, the appellant was armed only with a lathi and no deadly weapon was assigned to him.
The fatal incised injury was caused by the co-accused Jagarnath, who had died during pendency of the
appeal. All other injuries sustained by both the injured persons were simple in nature and caused by blunt
object.