2014 ALL MR (Cri) JOURNAL 192
UTTARAKHAND HIGH COURT
ALOK SINGH, J.
Pawan Kumar Saini Vs. Jogendra Kumar
Criminal Appeal No.43 of 2010,Criminal Appeal No.44 of 2010,Criminal Appeal No.45 of 2010
27th April, 2013
Petitioner Counsel: Mr. RAJENDRA SINGH
Respondent Counsel: Mr. S.K. AGARWAL, Mr. S.S. BHANDARI, Mr. SANDEEP TANDON, Ms. DEEPA ARYA
(A) Negotiable Instruments Act (1881), S.138 - Dishonour of cheque - Due to closure of account - Complaint - Maintainability - Held, as per judgment in 2014 ALL MR (Cri) 721 (S.C.), amount of money is insufficient to honour the cheque, is a genus of which the expression "account being closed" is a specie - Therefore, complaint is maintainable u/s.138 NI Act. (Para 17)
(B) Negotiable Instruments Act (1881), S.139 - Presumption u/s.139 - Failure to rebut - Whether justifies conviction u/s.138 - Dishonour of cheque due to account closed - Accused alleging that cheque in question had been lost and being misused by complainant - While complainant's case that cheque issued in discharge of liability of loan taken by accused - Complainant dealing with contracts taken by accused and operating joint account with him - Transaction of more than Rs.50,00,000/- in said account during intervening period, indicates sound financial status of complainant to extend loan - Presumption goes in favour of complainant - Burden is on accused to prove story of signed blank cheques got missing - He is also liable to prove that on date of closing of account, if cheques were presented in bank, same would have been honoured - Accused failed to discharge the burden - Presumption remained un-rebutted, justifies conviction of accused. (Paras 24, 25)
C.C. Alavi Haji Vs. Palapetty Muhammed & Anr., 2007 ALL MR (Cri) 2044 (S.C.)=(2007) 3 SCC (Cri.) 236 [Para 14]
Laxmi Dyechem Vs. State of Gujarat, 2014 ALL MR (Cri) 721 (S.C.)=2012 (11) SCALE 365 [Para 16,17,21]
Hiten P. Dalal Vs. Bratindranath Banerjee, 2001 ALL MR (Cri) 1497 (S.C.)=2001 (6) SCC 16 [Para 19]
Rangappa Vs. Sri Mohan, 2010 ALL SCR 1349=2010 (11) SCC 441 [Para 20]
2. Brief facts of the present case, inter alia, are that accused respondent is maternal uncle of appellant Pawan Kumar Saini; appellant Sudesh Saini is wife of Pawan Kumar Saini and appellant Tek Chand is father-in-law of Pawan Kumar Saini. Accused respondent was a contractor and he demanded Rs.60,00,000/- for the business purpose on loan from appellants. Keeping in mind close relationship with the accused respondent, appellants Pawan Kumar Saini, Sudesh Saini and Tek Chand handed over Rs.6,00,000/-, Rs.4,00,000/- and Rs.10,00,000/- to the respondent on 02.09.2004. Thereafter, on different dates, appellant Pawan Kumar Saini gave Rs.25,00,000/- to the accused respondent while Tek Chand gave Rs.30,00,000/- and Smt. Sudesh Saini gave Rs.12,00,000/- to the accused respondent till 01.05.2006.
3. To win over the confidence of the appellants, accused respondent agreed to open joint account in the name of appellant Pawan Kumar Saini. Joint account was opened in the name of accused respondent and appellant Pawan Kumar Saini. Pawan Kumar Saini and accused respondent started working together in different contract projects. At the time of demanding loan, accused respondent agreed to return the entire amount to the appellants along with 15% profit of different contract projects taken by him. Thereafter, on demand being made by the appellants to return to the borrowed money, accused respondent handed over two cheques to appellant Pawan Kumar Saini on 28.06.2006. One cheque dated 22.07.2006 of Indian Overseas Bank, Jwalapur Branch was amounting to Rs.10,00,000/- while another cheque was of Rs.10,80,000/- bearing cheque no. 805459 of State Bank of India, Roorkee Branch dated 21.07.2006. Appellant Pawan Kumar Saini got the payment of Rs.10,00,000/- of the aforesaid cheque of Indian Overseas Bank, Jwalapur Branch, however, cheque amounting to Rs.10,80,000/- was returned on 25.07.2006 with an endorsement "ACCOUNT IS CLOSED".
4. Thereafter, appellant Pawan Kumar sent a legal notice dated 08.08.2006 by registered AD on the correct address of accused respondent, which was returned on 21.08.2006. Thereafter, Pawan Kumar Saini lodged a complaint case no. 1807 of 2006 in the court of Judicial Magistrate, Roorkee.
5. Accused respondent handed over cheque no. 805460 of State Bank of India, Roorkee, Branch dated 22.07.2006 of Rs.8,30,000/- to the appellant Smt. Sudesh Saini which was returned by the Bank on 25.07.2006 on the ground "ACCOUNT IS CLOSED". Thereafter, appellant Sudesh Saini sent a legal notice by registered AD on 08.08.2006, which was returned unserved on 21.08.2006. Thereafter, appellant Sudesh filed a complaint case against the respondent / accused in the court of Judicial Magistrate, Roorkee bearing no. 2024 of 2006.
6. Accused respondent handed over cheque no. 741600 of State Bank of India, Roorkee dated 01.05.2006 to Tek Chand on 11.08.2006 of Rs.30,00,000/-, which was returned by the Bank on 21.08.2006 on the ground "ACCOUNT IS CLOSED". Thereafter, appellant Tek Chand issued a legal notice to respondent accused on 30.08.2006 by registered AD, which was also returned unserved on 07.09.2006. Consequently, appellant Tek Chand preferred a complaint case no. 2527 of 2006 in the court of Judicial Magistrate, Roorkee.
7. Complaint filed by appellant Pawan Kumar Saini bearing complaint case no. 1807 of 2006 was disposed of vide judgment and order dated 18.09.2008 passed by Judicial Magistrate, Roorkee holding that respondent accused guilty for the offence punishable under Section 138 of NI Act and sentencing him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.5000/- and in default of making payment of fine to undergo additional imprisonment of three months; accused respondent was also directed to pay amount of cheque i.e. Rs.10,80,000/- as compensation to the complainant.
8. Complaint case no. 2024 of 2006 filed by Smt. Sudesh was also disposed by judgment and order dated 18.09.2008 passed by Judicial Magistrate holding accused respondent guilty for the offence punishable under Section 138 of NI Act and sentencing him to undergo one year rigorous imprisonment and to pay fine of Rs.5,000/- and in default of making payment of fine to undergo additional imprisonment of 3 months and to pay cheque amount of Rs.8,30,000/- to the complainant as compensation.
9. Complaint case no. 2527 of 2006 filed by Tek Chand was also disposed by judgment and order dated 18.09.2008 passed by Judicial Magistrate, Roorkee holding accused respondent guilty for the offence punishable under Section 138 of NI Act and sentencing him to undergo one year rigorous imprisonment and to pay fine of Rs.5,000/- and in default of making payment of fine to undergo additional imprisonment of 3 months and to pay cheque amount of Rs.30,00,000/- to the complainant as compensation.
10. Feeling aggrieved, respondent filed three different appeals being criminal appeal nos. 56/2008, 57/ 2008, 58/2008 before the Additional Sessions Judge, Roorkee. All the three appeals filed by respondent were allowed by the Additional Sessions Judge/ 1st FTC, Roorkee setting aside the judgments and orders passed by the Judicial Magistrate, Roorkee in the aforesaid three complaints filed by the aforesaid three appellants.
11. Learned Appellate Court, while allowing the appeals, has observed that complainants were miserably failed to show their financial status to extend the loan to the accused respondent. It has further been observed by the Appellate Court since account was closed by the respondent on 01.06.2006 on the ground that his bag containing the few blank and signed cheques went missing on 27.05.2006, therefore, complaint under Section 139 NI Act is not maintainable, if given cheques were dishonoured due to closure of Account.
13. I have heard Mr. Rajendra Singh, learned counsel for the appellants and Mr. S.K. Agarwal, Sr. Advocate with Mr. S.S. Bhandari, Mr Sandeep Tandon, Ms. Deepa Arya, Advocates for respondent and have carefully perused the record.
14. Statutory notices were sent to the accused / respondent demanding the cheque amounts by registered AD post on the correct address of the accused / respondent, which were returned on the ground 'Not Met', therefore, service of notices on the respondent shall be presumed having been effected. See C.C. Alavi Haji Vs. Palapetty Muhammed and another reported in (2007) 3 SCC (Cri.) 236 : [2007 ALL MR (Cri) 2044 (S.C.)].
6. Chapter XVII comprising Sections 138 to 142 of the Negotiable Instruments Act was introduced in the statute by Act 66 of 1988. The object underlying the provision contained in the said Chapter was aimed at inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business and day to day transactions by making dishonour of such instruments an offence. A negotiable instrument whether the same is in the form of a promissory note or a cheque is by its very nature a solemn document that carries with it not only a representation to the holder in due course of any such instrument but also a promise that the same shall be honoured for payment. To that end Section 139 of the Act raises a statutory presumption that the cheque is issued in discharge of a lawfully recoverable debt or other liability. This presumption is no doubt rebuttable at trial but there is no gainsaying that the same favours the complainant and shifts the burden to the drawer of the instrument (in case the same is dishonoured) to prove that the instrument was without any lawful consideration. It is also noteworthy that Section 138 while making dishonour of a cheque an offence punishable with imprisonment and fine also provides for safeguards to protect drawers of such instruments where dishonour may take place for reasons other than those arising out of dishonest intentions. It envisages service of a notice upon the drawer of the instrument calling upon him to make the payment covered by the cheque and permits prosecution only after the expiry of the statutory period and upon failure of the drawer to make the payment within the said period.
7. The question that falls for our determination is whether dishonour of a cheque would constitute an offence only in one of the two contingencies envisaged under Section 138 of the Act, which to the extent the same is relevant for our purposes reads as under :
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.-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 honour 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 provision of this Act, be punished with imprisonment of a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both.
9. In NEPC Micon Ltd. v. Magma Leasing Ltd. (1999) 4 SCC 253, the cheques issued by the appellant-company in discharge of its liability were retuned by the company with the comments 'account closed'. The question was whether a dishonour on that ground for that reason was culpable under Section 138 of the Negotiable Instruments Act. The contention of the company that issued the cheque was that Section 138 being a penal provision ought to be strictly construed and when so interpreted, dishonour of a cheque on ground that the account was closed was not punishable as the same did not fall in any of the two contingencies referred to in Section 138. This Court noticed the prevalent cleavage in the judicial opinion, expressed by different High Courts in the country and rejected the contention that Section 138 must be interpreted strictly or in disregard of the object sought to be achieved by the statute. Relying upon the decision of this Court in Kanwar Singh v. Delhi Administration (AIR 1965 SC 871), and Swantraj v. State of Maharashtra (1975) 3 SCC 322 this Court held that a narrow interpretation of Section 138 as suggested by the drawer of the cheque would defeat the legislative intent underlying the provision. Relying upon the decision in State of Tamil Nadu v. M.K. Kandaswami (1975) 4 SCC 745, this Court declared that while interpreting a penal provision which is also remedial in nature a construction that would defeat its purpose or have the effect of obliterating it from the statute book should be eschewed and that if more than one constructions are possible the Court ought to choose a construction that would preserve the workability and efficacy of the statute rather than an interpretation that would render the law otiose or sterile. The Court relied upon the much quoted passage from the Seaford Court Estates Ltd. v. Asher (1949 2 All E.R. 155) wherein Lord Denning, L.J. observed:
"The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered bythe supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. ... A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
15. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression "amount of money ..... is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act. This Court has in the decisions referred to above taken note of situations and contingencies arising out of deliberate acts of omission or commission on the part of the drawers of the cheques which would inevitably result in the dishonour of the cheque issued by them. For instance this Court has held that if after issue of the cheque the drawer closes the account it must be presumed that the amount in the account was nil hence insufficient to meet the demand of the cheque. A similar result can be brought about by the drawer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf. Such changes or alteration in the mandate may be dishonest or fraudulent and that would inevitably result in dishonour of all cheques signed by the previously authorised signatories. There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment. So long as the change is brought about with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied. There may indeed be situations where a mismatch between the signatories on the cheque drawn by the drawer and the specimen available with the bank may result in dishonour of the cheque even when the drawer never intended to invite such a dishonour. We are also conscious of the fact that an authorised signatory may in the ordinary course of business be replaced by a new signatory ending the earlier mandate to the bank. Dishonour on account of such changes that may occur in the course of ordinary business of a company, partnership or an individual may not constitute an offence by itself because such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable. Even in such cases, the question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial Court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration."
17. In view of judgment of Hon'ble Apex Court in the case of Laxmi Dyechem, [2014 ALL MR (Cri) 721 (S.C.)] (supra), the amount of money is insufficient to honour the cheque is a genus of which the expression "account being closed" is specie, therefore, complaint is maintainable under Section 138 of the NI Act, even if cheque is dishonoured on the ground "ACCOUNT IS CLOSED". Question no. 1 stands answered in favour of the appellants against the accused respondent.
18. The second question, which emerges in the present appeals, is as to whether failure of drawer of the cheque to put up proper defence for rebutting the presumption under Section 139 of the NI Act, would justify conviction even when the accused may have alleged that cheque had been lost and was being misused by the complainant?
"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.
23. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists".
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
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 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......"
25. With regard to the facts in the present case, we can also refer to the following observations in M.M.T.C. Ltd. and Anr. v. Medchl Chemicals & Pharma (P) Ltd., (2002) 1 SCC 234 (Para. 19): ". The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the 'stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. ."
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 21 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.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
"We have to bear in mind that the Legislature while incorporating the provisions of Chapter XVII, Sections 138 to 142 inserted in the NI Act (Amendment Act 1988) intends to punish only those who know fully well that they have no amount in the bank and yet issue a cheque in discharge of debt or liability already borrowed/incurred -which amounts to cheating, and not to punish those who refused to discharge the debt for bona fide and sustainable reason. It is in this context that this Hon'ble Court in the matter of M.M.T.C. Ltd. And Anr vs. Medchl Chemical and Pharma (P) Ltd. And Anr. 1 was pleased to hold that cheque dishonour on account of drawer's stop payment instruction constitutes an offence under Section 138 of the NI Act but it is subject to the rebuttable presumption under Section 139 of the NI Act as the same can be rebutted by the drawer even at the first instance. It was held therein that in order to escape liability under Section 139, the accused has to show that dishonour was not due to insufficiency of funds but there was valid cause, including absence of any debt or liability for the stop payment instruction to the bank. The specific observations of the Court in this regard may be quoted for ready reference which are as follows:
"The authority shows that even when the cheque is dishonoured by reason of stop-payment instructions by virtue of Section 139 the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the "stop payment" instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. Thus a court cannot quash a complaint on this ground."
22. In the present case, it is admitted to the accused respondent that appellant Pawan Kumar Saini is his nephew while Sudesh Saini is wife of Pawan Kumar Saini and Tek Chand is father-in-law of Pawan Kumar Saini.
23. It has come on record that appellant Pawan Kumar Saini was operating the joint account opened by accused respondent with him and there was transaction of more than Rs.50,00,000/- during the intervening period. It has also come on record that on 28.06.2006 accused handed over two cheques to the appellant Pawan Kumar Saini, one amounting to Rs.10,00,000/- and another amounting to Rs.10,80,000/-. Cheque amounting to Rs.10,00,000/- was encashed while cheque amounting to Rs.10,80,000/- was returned due to closure of account.
24. In view of the material available on record that appellant Pawan Kumar Saini, on behalf of other appellants, was dealing with the different contracts taken by the accused / respondent and operating the joint account with respondent wherein transaction of more than Rs.50,00,000/- took place, which shows financial status of the appellants to extend such loan and statutory presumption in favour of appellants, as provided under Section 139 of the NI Act, has been cemented. No prudent man may believe that accused / respondent was carrying bag containing the blank signed cheques, which went missing; appellants could have traced the bag by chance and prepared the cheques to defraud the accused / respondent. It has to be presumed that accused / respondent, in fact, handed over cheques to the appellant to discharge his liabilities.
25. Now, it was for the respondent / accused to prove that on the dates, when cheques were issued to the appellants, there was sufficient fund in his account and on the date of closing the account, if cheques were presented in the Bank, the same would have been honoured and would not have been dishonoured on the ground of "insufficient fund". Accused respondent should have discharged his burden that cheques went missing and on account of missing he has closed his Bank account, however, in the present case, in the firm opinion of this Court accused, respondent failed to discharge his burden, therefore, statutory presumption in favuor of the appellants never stood rebutted. Question no. 2 stands answered in favour of the appellants against the accused / respondent.
27. Consequently, impugned orders are not sustainable in the eyes of law, therefore, aforesaid appeals are allowed. Impugned judgments and orders dated 03.03.2010 passed by Additional Sessions Judge, Roorkee in Criminal Appeal Nos. 56/2008, 57/ 2008, 58/2008 are hereby set aside. Judgments and orders dated 18.09.2008 passed by Judicial Magistrate, Roorkee in complaint case nos. 1807 of 2006, 2024 of 2006 and 2527 of 2006 are hereby restored.