Calcutta High Court (Appellete Side)
Amit Jhunjhunwala vs State Of West Bengal And Another on 30 June, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE UDAY KUMAR
C.R.R. 678 of 2022
&
C.R.R. 679 of 2022
Amit Jhunjhunwala
-Vs-
State of West Bengal and Another
For the Petitioner : Mr. Imtiaz Ahmed
Ms. Ghazala Firdaus
Mr. Md. Zeeshan Uddin
Ms. Amrin Khatoon
Mr. Sk. Saidullah
Mr. Mithun Mondal
Mr. Abu Nazma
Mr. Md. Arsalan
Mr. Rishav Kar
For the Opposite Party No.2 : Mr. Avijit Ghosh
Hearing concluded on : 02.05.2025
Judgment on : 30.06.2025
Uday Kumar J.:-
1.
These two revisional applications, CRR 678 of 2022 and CRR 679 of
2022, filed under Section 482 of the Code of Criminal Procedure, 1973
(Cr.P.C), challenge the judgments dated February 4, 2022, rendered by
the Learned 2nd Fast Track Court, Judge, City Sessions, Calcutta. These
judgments convicted the petitioner, Amit Jhunjhunwala, under Section
138 of the Negotiable Instruments Act, 1881 (N.I. Act), overturning his
earlier acquittals by the Learned 15th Metropolitan Magistrate, Calcutta.
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Notably, both appellate orders imposed a fine of Rs. 4,30,000/-, with a
default sentence of six months simple imprisonment. Given that both
cases involve the same individuals, raise identical legal questions
stemming from similar factual matrices concerning the dishonour of
cheques, and seek the same outcome, they have been heard and are
being disposed of together for the sake of convenience to prevent
contradictory judgments, and maintain consistency.
2. The factual background for these disputes originates from two distinct
complaints filed by Jugal Kishore Sadani, the complainant, against the
petitioner. Each complaint alleged an existing financial liability arising
from an alleged loan agreement dated March 7, 2015. Specifically, in
Complaint Case No. CS/61234/2016 (linked to CRR 678/2022), the
petitioner allegedly issued three cheques (numbers 409207, 409208,
409209), each for Rs. 71,667/-, dated October 6, November 6, and
December 6, 2015, respectively. These cheques, drawn on IDBI Bank,
Brabourne Road Branch, Kolkata, were dishonoured due to “Insufficient
Funds.” Consequently, a statutory demand notice followed on January
7, 2016, which the petitioner received on January 11, 2016. Separately,
in Complaint Case No. CS-103374 of 2016 (linked to CRR 679/2022),
the petitioner is alleged to have issued three different cheques (numbers
409213, 409214, 409215), each for Rs. 71,667/-, dated April 6, May 6,
and June 6, 2016, respectively, also in relation to an existing financial
liability. These cheques, likewise drawn on IDBI Bank, were dishonoured
on June 27, 2016, for “Insufficient Funds.” A subsequent demand notice
was issued on July 20, 2016, and received by the petitioner on July 23,
2016. In both instances, despite receiving the demand notices, the
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petitioner failed to remit the demanded sum within the mandated 15-
day period, thereby compelling the complainant to initiate criminal
proceedings.
3. As the matters progressed, during both trials before the Learned 15th
Metropolitan Magistrate, the complainant adduced himself as the sole
prosecution witness (PW-1), providing oral testimony and submitting
documentary evidence. Crucially, the petitioner deliberately chose not to
cross-examine PW-1 in either case, a decision that would later prove
significant. Furthermore, in his statements recorded under Section 313
CrPC for both complaints, the petitioner simply denied the allegations
and expressly stated he would not call any witnesses for his defence.
Notwithstanding this unchallenged prosecution evidence, the Trial
Court, on September 29, 2018, acquitted the petitioner in both matters.
The Magistrate’s reasoning in both instances was primarily that “no
whisper had been made by the complainant as to the existing legally
enforceable debt or liability,” a conclusion drawn from an interpretation
of Krishna Janardan Bhatt v. Dattatraya G. Hegde, (2008) 2 SCC (Cri)
166, that the Section 139 N.I. Act presumption does not extend to mere
existence of the debt itself.
4. Aggrieved by these acquittals, the complainant subsequently appealed.
On February 4, 2022, the Learned 2nd Fast Track Court allowed both
appeals, overturning the acquittals and convicting the petitioner by
imposing a fine of Rs. 4,30,000/- payable to the opposite party, Jugal
Kishore Sadani, with a default stipulation of six months simple
imprisonment.
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5. The Appellate Court’s consistent rationale across both cases was that
the complaint petitions explicitly stated the cheques were issued for
“discharging of his existing financial liability.” It held that the
petitioner’s conscious decision to decline cross-examination of PW-1
effectively amounted to an acceptance or admission of the complainant’s
averments and claims, thereby fulfilling the complainant’s initial burden
of proof. With this initial burden discharged, the onus then shifted
squarely to the accused to rebut the legal presumption under Section
139 N.I. Act, which the Court found he utterly failed to do. The Appellate
Court distinguished Krishna Janardan Bhatt, noting that in that case,
the accused had, in fact, cross-examined the complainant. It also viewed
the issuance of multiple consecutive cheques as strong evidence
indicating they were intentionally given to settle an existing legal debt.
Ultimately, the Appellate Court’s decision primarily rested on the
Hon’ble Supreme Court’s subsequent and more expansive clarification in
Rangappa vs. Sri. Mohan, (2010) 11 SCC 441, which unequivocally
broadened the scope of the presumption under Section 139 N.I. Act to
include the existence of a legally enforceable debt, thereby rectifying the
perceived error of the Trial Court. Consequently, the Appellate Court
deemed the Trial Court’s acquittals to be “gross mistakes.”
6. Feeling aggrieved thereby, petitioner preferred these present applications
for revision, while the Learned Metropolitan Magistrate, 15th Court,
Calcutta, had issued an arrest warrant against the petitioner on
February 21, 2022, following the Appellate Court’s decisions.
Conditional stay to the operation of said order has been granted.
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7. In presenting the petitioner’s case, Mr. Imtiaz Ahmed, the Learned
Advocate, commenced his arguments by emphasizing a foundational
principle of criminal jurisprudence: that an accused is presumed
innocent until proven guilty beyond a reasonable doubt. He contended
that this presumption gains significant strength when a Trial Court,
following a meticulous evaluation of evidence, records an acquittal.
While an Appellate Court certainly possesses the power to re-appreciate
evidence, such power, he submitted, must be exercised with extreme
caution when interfering with an order of acquittal. A reversal, he
asserted, necessitates a finding that the Trial Court’s judgment was
perverse, manifestly erroneous, or resulted in a grave miscarriage of
justice; a mere possibility of a different view is demonstrably insufficient.
In the instant case, Mr. Ahmed submitted, the Appellate Court failed to
demonstrate any such perversity or error in the Trial Court’s judgment,
which, in the petitioner’s view, was well-reasoned and delivered after a
thorough appreciation of the evidence.
8. Mr. Ahmed then delved into the core legal issue concerning the
rebuttable nature of the presumption under Section 139 of the N.I. Act.
He conceded that Section 139 does indeed raise a presumption once a
cheque’s signature is admitted. However, he vehemently asserted that
the fundamental obligation to prove the existence of a “legally
enforceable debt” rests firmly on the shoulders of the complainant. To
support this, he cited the recent decision of Tukaram vs. Dileep and
Another, 2024 SCC Online Bom 1711, arguing that it reinforced this very
principle – that a conviction cannot be sustained in the absence of
independent, compelling evidence establishing such a debt. Continuing
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on the aspect of rebuttal, Mr. Ahmed argued that the burden on the
accused to rebut the presumption is not as onerous as the prosecution’s
burden of proving guilt beyond reasonable doubt. The accused, he
explained, only needs to establish a “probable defence” or demonstrate
the non-existence of the debt on a “preponderance of probabilities.” He
contended that through the cross-examination of the complainant’s
witness and by bringing certain circumstances onto the record, the
petitioner had successfully raised such a probable defence, thereby
injecting doubt into the existence of a legally enforceable debt. In this
context, he invoked the earlier Hon’ble Supreme Court view in Krishna
Janardhan Bhat vs. Dattatraya G. Hegde (2008), suggesting that it
supported the Trial Court’s initial focus on the complainant’s failure to
prove the underlying debt more explicitly. The petitioner’s decision not to
lead separate defence evidence, he emphasized, was a strategic choice
and should not be misconstrued as an admission of guilt or a failure to
rebut, as an accused is entitled to rely on the complainant’s own
evidence for this purpose.
9. A significant plank of Mr. Ahmed’s argument revolved around the non-
production of the alleged loan agreement dated March 7, 2015. He
forcefully contended that the absence of this very document, purportedly
forming the basis of the entire financial accommodation, cast severe
doubts on the veracity and enforceability of the claimed debt. He also
pointed out that this document was stated to be an exhibit in another
pending civil matter, CS/43753/15. This omission, he submitted, meant
the complainant had fundamentally failed to prove the foundational
requirement of a legally enforceable debt. The initial burden to prove a
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“legally enforceable debt or other liability” lies squarely on the
complainant, and the Section 139 presumption, while an evidentiary
advantage, does not absolve the complainant from establishing the
foundational transaction. He argued that the Learned Appellate Court,
by seemingly focusing solely on the presumption arising from the
admitted signature, overlooked this fundamental requirement, especially
as the reasons for the absence of this crucial loan agreement were
unconvincing to the Trial Magistrate.
10. Regarding the petitioner’s statement under Section 313 CrPC and his
right to silence, Mr. Ahmed submitted that the petitioner’s denial of
allegations under Section 313 Cr.P.C cannot be construed as an
admission of guilt or a failure to rebut the presumption. Section 313
Cr.P.C merely provides an opportunity for the accused to explain
incriminating circumstances; it does not mandate leading defence
evidence. The decision to adduce defence evidence is a strategic choice,
and its absence, especially when a probable defence has been raised
through challenging the complainant’s own evidence, cannot be held
against the accused. He relied on the consistent view of the Hon’ble
Supreme Court that a Section 313 Cr.P.C statement is not substantive
evidence. Therefore, the Learned Appellate Court’s reliance on the
petitioner’s “silence” under Section 313 CrPC as a basis for conviction,
he argued, constituted a misapplication of the law.
11. Finally, Mr. Ahmed sought to distinguish the cases cited by the opposing
counsel. He argued that Triyambaks Hegde Vs. Sripad was
distinguishable because, while the undisputed signature indeed
triggered Section 139, the core issue here remained the existence and
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legal enforceability of the underlying debt, directly challenged by the
complainant’s failure to produce the foundational agreement.
Furthermore, Laxmi Dychem Vs. State of Gujarat, he submitted,
reiterates the rebuttable nature of the Section 139 presumption but does
not diminish the complainant’s initial burden to prove a legally
enforceable debt or prevent the accused from raising a probable defence.
12. Lastly, Rajesh Jain Vs. Ajay Singh, which emphasizes that if the accused
raises a probable defence, the onus shifts back to the complainant to
prove the debt independently, was argued to support the petitioner’s
case, as the significant omission of the loan agreement constituted such
a probable defence which the complainant failed to counter by
independently proving the debt.
13. In summary, Mr. Ahmed’s primary contention was that the Learned Trial
Court’s order of acquittal was based on a correct appreciation of legal
principles and evidence, particularly its finding that the complainant
failed to establish the existence of a legally enforceable debt, which is a
sine qua non for an offence under Section 138 of the N.I. Act. He
asserted that mere issuance of a cheque does not automatically lead to a
presumption of debt, and the initial burden to prove the existence of a
legally enforceable debt lies squarely on the Complainant. He placed
strong reliance on Tukaram vs. Dileep and Another (2024 SCC Online
Bom 1711) for the proposition that the fundamental burden on the
complainant to prove the existence of a legally enforceable debt must be
discharged before the presumptions under Sections 118 and 139 of the
N.I. Act come into play. He further contended that the foundational facts
necessary to trigger the presumption of a legally enforceable debt were
9
not sufficiently established by the complainant, citing Rangappa vs. Sri.
Mohan. He concluded by praying for the High Court to quash the
Appellate Court’s judgment, thereby upholding the Trial Court’s
acquittal.
14. Conversely, Mr. Avijit Ghosh, the Learned Advocate for the opposite
party no.2/complainant, presented a robust defence of the Appellate
Court’s conviction, asserting that the revision application is entirely
devoid of merit. Heunderscored on the unwavering strength of the
statutory presumption under Section 139 of the N.I. Act, and contended
that the Learned Appellate Court rightly set aside the erroneous
judgment of acquittal by the Trial Court and correctly convicted the
petitioner. Mr. Ghosh emphasized that the petitioner’s undisputed
signature on the three cheques unequivocally triggered the powerful
presumption under Section 139 of the N.I. Actthat the cheque was
received for the discharge of a debt or other liabilityas unequivocally
held by the Hon’ble Supreme Court in Triyambaks Hegde Vs. Sripad. As
the holder of these cheques bearing the petitioner’s admitted signature,
the complainant is rightfully entitled to this crucial statutory
presumption.
15. Elaborating on this point, Mr. Ghosh argued that the onus to rebut the
presumption under Section 139 lies squarely on the accused. As
consistently held by the Hon’ble Supreme Court in cases such as Laxmi
Dychem Vs. State of Gujarat and Rangappa Vs. Sri Mohan, this requires
the accused to raise a probable defence that casts doubt on the
existence of a legally enforceable debt or liability. This can be achieved
through various means, including adducing independent evidence or
10
effective cross-examination. In the present case, Mr. Ghosh contended
that the petitioner demonstrably failed to avail any of these avenues. He
pointed out that the petitioner chose not to cross-examine the
complainant’s witness (PW-1) with any meaningful intent and, more
significantly, explicitly stated during his Section 313 CrPC examination
on August 24, 2018, that he did not wish to lead any defence witnesses.
This conscious decision not to present any evidence to counter the
presumption, Mr. Ghosh submitted, speaks volumes about the absence
of any credible defence. He asserted that the Learned Trial Magistrate
erroneously disregarded this crucial aspect, an error which the Learned
Appellate Court rightly rectified.
16. Mr. Ghosh further highlighted that the three dishonoured cheques,
aggregating Rs. 2,15,001/-, were issued by the petitioner pursuant to a
financial accommodation/loan agreement dated March 7, 2015. While
conceding that the physical document was an exhibit in another pending
matter (CS/43753/15), he argued that the very issuance of these
cheques by the petitioner to the complainant serves as compelling
evidence of the underlying legally enforceable debt. By admitting his
signature on these cheques and failing to offer any plausible explanation
to the contrary, the petitioner has implicitly acknowledged his liability.
Citing Rajesh Jain Vs. Ajay Singh, he argued that once the Section 139
presumption is activated, the focus shifts to whether the accused has
discharged the onus of rebutting it. If no rebuttal evidence is led, the
inquiry is limited to whether the accused has proved the non-existence
of the debt by a preponderance of probabilities. The petitioner, he
contended, failed to lead any rebuttal evidence or point to specific
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circumstances probabilizing the non-existence of the debt, and his mere
denial under Section 313 Cr.P.C, without further support, is insufficient.
He further submitted that the Trial Magistrate had erroneously
overlooked this crucial shift in onus, an error that the Appellate Court
correctly rectified. He relied on Rajesh Jain Vs. Ajay Singh to argue that
once the Section 139 presumption is activated, the court’s focus shifts to
whether the accused has successfully discharged their burden of
rebuttal. If not, a conviction is the logical and legally sound outcome.
17. He further bolstered his position by citing Prem Singh Rohila vs. State of
Haryana and another 2022 SCC Online P&H 589, which stresses that a
mere denial, without more, is insufficient to dislodge the strong
statutory presumption. Indeed, he emphasized that Rangappa vs. Sri.
Mohan (2010) 11 SCC 441 definitively clarified that the presumption
under Section 139 encompasses the existence of a legally enforceable
debt or liability, thereby setting aside any earlier narrower
interpretations. Mr. Ghosh asserted that the complainant had
established the foundational facts, triggering the presumption, and the
Appellate Court rightly held the petitioner guilty due to his failure to
discharge the reverse burden. He supported the impugned judgment by
submitting that the Appellate Court correctly distinguished the initial
interpretation as to the application of the presumption under Section
139 of the N.I. Act, made in Krishna Janardhan Bhat, in light of the
subsequent clarification by the Supreme Court in Rangappa vs. Sri.
Mohan. He briefly addressed any perceived delay in filing the complaint,
attributing it to external factors such as the COVID-19 pandemic and
the complainant’s international work commitments. He concluded by
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praying for the dismissal of this application under Section 482 Cr.P.C
and for the well-reasoned judgment and order of conviction passed by
the Learned Appellate Court to be upheld, noting that the fine imposed
by the Appellate Court as compensation is just and in accordance with
the provisions of the N.I. Act.
18. Having carefully considered the rival submissions of the parties, and
meticulously perused the materials on record, including the judgments
of both the Trial Court and the Appellate Court, as well as the cited case
laws, the matter at hand highlights the critical interplay between
personal financial dealings and the stringent provisions of the Negotiable
Instruments Act, 1881, particularly concerning the legal presumptions
that arise upon the dishonour of a cheque. It is within this intricate legal
framework that the central point requiring this Court’s careful
consideration emerges.
19. The prime question involved herein is whether the Learned 2nd Fast
Track Court, Judge, City Sessions, Calcutta, was justified in reversing
the acquittal of the petitioner and convicting him for the offence
punishable under Section 138 of the Negotiable Instruments Act, 1881,
given the entire evidence on record and the legal principles governing the
presumption and burden of proof under the Act.
20. In the event to address this question, the crux of the matter lies in the
correct interpretation and application of the presumption enshrined in
Section 139 of the N.I. Act: “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.” It is undisputed that the petitioner, Amit
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Jhunjhunwala, admitted his signature on the three cheques in question.
Once the signature on the cheque is admitted, the presumption under
Section 139 of the N.I. Act is automatically triggered. This presumption
mandates that the Court shall presume that the cheque was issued for
the discharge of a debt or other liability. The Trial Court’s interpretation,
relying on an initial reading of Krishna Janardhan Bhatt vs. Dattatraya
G. Hegde (2008), suggesting that the presumption under Section 139
does not extend to the existence of a legally enforceable debt, therefore
warrants careful examination in light of subsequent authoritative
pronouncements by the Hon’ble Supreme Court.
21. Indeed, the position of law has been unequivocally clarified by the
Hon’ble Supreme Court in Rangappa vs. Sri. Mohan (2010) 11 SCC 441.
In this seminal judgment, the Hon’ble Supreme Court explicitly held that
the presumption under Section 139 of the N.I. Act does indeed
encompass the existence of a legally enforceable debt or liability. This
clarification effectively settled any ambiguity that may have arisen from
earlier interpretations, including the nuanced observations in Krishna
Janardhan Bhatt. Consequently, the Rangappa judgment effectively
broadened the scope of the presumption to include the existence of the
debt itself, thus shifting the onus squarely upon the accused to rebut
this comprehensive presumption.
22. Further buttressing this position, the judgment in Prem Singh Rohila vs.
State of Haryana and another (2022 SCC Online P&H 589) specifically
points out that the observation in Krishna Janardhan Bhat stating that
the presumption under Section 139 does not relate to the first ingredient
(legally enforceable debt) might not be entirely correct in light of later
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pronouncements, particularly Rangappa. This case emphasizes that
while the accused does not need to prove their defence beyond
reasonable doubt, a mere denial is insufficient to rebut the presumption.
Instead, they need to present probable circumstances to suggest the
non-existence of the debt. Mr. Ahmed’s contention, relying on Tukaram
vs. Dileep and Another (2024 SCC Online Bom 1711), that the
fundamental burden to prove a legally enforceable debt lies initially on
the complainant, is generally true. However, once the foundational
facts–namely, the issuance of the cheque and admission of signature–
are established, the statutory presumption under Section 139 comes
into play, thereby shifting the burden of proving the non-existence of a
legally enforceable debt to the accused. In the present case, the
complainant sufficiently established these foundational facts by
presenting the dishonoured cheques with the admitted signatures, the
bank’s return memos, and proof of notice. This act was sufficient to
trigger the presumption.
23. The crucial aspect then becomes whether the petitioner successfully
rebutted this presumption. While the burden on the accused to rebut
the presumption under Section 139 is not as heavy as the prosecution’s
burden to prove guilt beyond a reasonable doubt, it is, rather, a burden
of raising a probable defence or showing the non-existence of the debt or
liability based on the preponderance of probabilities. The petitioner’s
defence, as presented by Mr. Ahmed, largely hinged on the absence of
the alleged loan agreement dated March 7, 2015, which was stated to be
an exhibit in another civil matter (CS/43753/15), and the petitioner’s
denial in his Section 313 Cr.P.C statement, coupled with his decision
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not to lead any defence evidence. While the absence of a primary
document can, in certain circumstances, weaken the prosecution’s case,
it is imperative to assess whether this omission, coupled with the
petitioner’s conduct, was sufficient to rebut the statutory presumption.
The petitioner chose not to cross-examine the complainant’s witness
effectively to elicit admissions that could weaken the claim of a legally
enforceable debt. Furthermore, the conscious decision not to adduce any
defence evidence, stating so explicitly in his Section 313 Cr.P.C
statement recorded on August 24, 2018, severely curtailed his ability to
present a credible counter-narrative or establish probable circumstances
that would suggest the non-existence of the debt. While a Section 313
Cr.P.C statement is not substantive evidence, and an accused certainly
has a right to silence, the failure to challenge the complainant’s evidence
or present any contrary evidence inevitably weakens the defence against
a statutory presumption. The Appellate Court, therefore, correctly
considered this lack of challenge and evidence against the accused.
24. The distinctions drawn by Mr. Ahmed regarding the judgments cited by
the complainant, while legally valid in principle, do not sufficiently dilute
their applicability to the present facts. For instance, Triyambaks Hegde
Vs. Sripad (2022 SCC Online SC 714) is indeed relevant in establishing
that an admitted signature triggers the presumption under Section 139.
The petitioner’s argument that the core issue is the underlying debt’s
enforceability is precisely what the presumption addresses post-
Rangappa. Similarly, Laxmi Dychem Vs. State of Gujarat (2012) 13 SCC
375, reaffirms the rebuttable nature of the Section 139 presumption,
but it simultaneously emphasizes that mere denial is not enough; the
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accused must demonstrate by acceptable evidence that the non-
existence of consideration was probable. Furthermore, Rajesh Jain Vs.
Ajay Singh (2023 SCC OnLine SC 1093) highlights the evidentiary burden
on the accused once the presumption under Section 139 is invoked. It
states that if the accused fails to lead any rebuttal evidence, the inquiry
is limited to whether the accused has proved the non-existence of the
debt by a preponderance of probabilities. In the present case, the
petitioner’s failure to lead any evidence and his limited cross-
examination did not meet this threshold. The explanation offered by the
opposite party’s counsel regarding the delay in filing the complaint due
to external factors like the COVID-19 pandemic and international work
commitments, while noted, does not, in any event, alter the core legal
findings regarding the presumption and its rebuttal in this case.
25. Conclusively, the Appellate Court’s reappraisal of the evidence and its
decision to set aside the acquittal appears to be based on a correct
understanding of the legal position, particularly the enhanced scope of
the presumption under Section 139 of the N.I. Act as laid down in
Rangappa vs. Sri. Mohan. The Trial Court, while operating on its
interpretation of Krishna Janardhan Bhat, had not fully accounted for
the subsequent clarifications from the Apex Court. Thus, the Appellate
Court’s decision to reverse the acquittal was not merely a substitution of
views, but fundamentally a correction of a legal error regarding the
application of statutory presumptions.
26. Given this, all necessary ingredients of Section 138 of the N.I. Act have
been established. The cheques were issued by the petitioner, they were
dishonoured for insufficient funds, a statutory demand notice was duly
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served, and the petitioner demonstrably failed to make payment within
the stipulated period. Coupled with the admitted signature on the
cheques, which triggered the presumption of a legally enforceable debt
under Section 139, and the petitioner’s abject failure to rebut this
presumption by adducing any cogent evidence or by effectively
discrediting the complainant’s case, the conviction by the Learned
Appellate Court is found to be entirely justified both in law and on facts.
27. It is a fundamental principle in proceedings under Section 138 of the
Negotiable Instruments Act that once the issuance and signature of a
cheque are admitted, the statutory presumption under Section 139 of
the Act arises, placing the burden on the accused to prove, on a
preponderance of probabilities, that the cheque was not issued in
discharge of a legally enforceable debt or liability. The failure of the
accused to discharge this evidential burden by adducing a probable
defence must, therefore, lead to conviction, provided all other essential
ingredients of Section 138 are satisfied.
28. After thoroughly examining the arguments and evidence, the key legal
principle that emerges from this case, particularly for matters under
Section 138 of the Negotiable Instruments Act, 1881, is quite clear. Once
the complainant successfully shows the cheque was issued and then
dishonoured — which automatically activates the strong presumptions
under Sections 118(a) and 139 (and, as Rangappa v. Sri Mohan clarified,
this includes the presumption of a legally enforceable debt) — the
burden then definitively shifts to the accused to prove otherwise. This
isn’t a light burden, but it’s a real one. A simple denial, remaining silent,
or even avoiding proper cross-examination of the complainant’s
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witnesses isn’t enough to shake these presumptions. When an accused
consciously avoids challenging the complainant’s evidence through
effective cross-examination and fails to present any credible defence or
alternative explanation, those statutory presumptions stand unrebutted.
In such circumstances, the complainant’s initial case, which was prima
facie strong, effectively becomes conclusive proof, fully justifying a
conviction. This is especially true when other facts, like the issuance of
multiple consecutive cheques, further support the complainant’s claim.
While the accused only needs to show a ‘preponderance of probabilities’
for their defence, it demands a real, demonstrable effort to raise a
probable doubt about the debt’s existence, an effort conspicuously
missing here.
29. In light of this comprehensive analysis of the facts, the legal principles
governing Section 138 and 139 of the N.I. Act, and the authoritative
pronouncements of the Hon’ble Supreme Court, I find no material
irregularity or perversity in the judgment and order passed by the
Learned Additional Sessions Judge, 2nd Fast Track Court, City Sessions
Court, Bichar Bhavan, Kolkata and calls for no interference. The
Appellate Court correctly applied the law and reached a well-reasoned
conclusion that the petitioner failed to rebut the statutory presumption
under Section 139 of the N.I. Act.
30. Therefore, for the reasons elaborated above, the present Criminal
Revision Applications, CRR 678 of 2022 and CRR 679 of 2022, being
devoid of merit, are hereby dismissed.
31. Consequently, the judgment and order of conviction and sentence to the
petitioner, Amit Jhunjhunwala, for the offence punishable under Section
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138 of the Negotiable Instruments Act, 1881, dated February 4, 2022,
passed by the Learned Additional Sessions Judge, 2nd Fast Track Court,
City Sessions Court, Bichar Bhavan, Kolkata, is hereby affirmed.
32. The petitioner is, therefore, directed to surrender before the Learned 15th
Metropolitan Magistrate at Kolkata within a period of two weeks from the
date of this order.
33. Upon his surrender, the Learned Magistrate shall take necessary steps
to secure the petitioner and ensure he undergoes the sentence imposed
by the Learned Additional Sessions Judge.
34. In default of the petitioner’s surrender within the stipulated period, the
Learned Metropolitan Magistrate, 15th Court, Calcutta, shall take all
necessary steps in accordance with law to ensure compliance with the
sentences, including issuing a fresh warrant of arrest and employing
coercive measures.
35. The bail bond(s) furnished by the petitioner and his sureties in
connection with these revisional applications shall stand discharged
only upon his timely surrender and commencement of the sentence.
36. If the fine amount has already been deposited in compliance with the
interim order, the petitioner may, upon verification, seek necessary
adjustment or relief from the executing court regarding the payment of
the fine. However, his obligation to serve the default sentence, if
applicable, remains unaffected.
37. Crucially, the interim order dated March 4, 2022, which had stayed the
operation of the Appellate Court’s conviction order and allowed the
petitioner to remain on bail, is hereby vacated.
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38. Let a copy of this judgment be forthwith transmitted to the concerned
lower court for their information and necessary action.
39. There shall be no order as to costs in these revisional applications.
40. Urgent photostat copy of this judgment may be provided to the parties, if
applied for, upon compliance with requisite formalities.
(UDAY KUMAR, J.)