In cheque dishonor case; failure of complainant to give satisfactory reply about his financial capacity to pay/give the amount; is a probable defence on behalf of the accused

We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-

(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.

(v) It is not necessary for the accused to come in the witness box to support his defence.[Para No.23]

 Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of the PW1, when the specific question was put that cheque was issued in relation to loan of Rs.25,000/- taken by the accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs.4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs.4,50,000/- being admitted in the year 2010 and further payment of loan of Rs.50,000/- with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. During his cross-examination, when fina>ncial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.[Para No.24]

For removal of Sarpach from his post in Maharashtra, enquiry should be conducted by CEO of Z.P. himself and not by enquiry committee directed by him

"Delegatus non potest delegare"

    The wording of the first proviso is in the form of a protection given to a person sought to be removed and therefore will have to be interpreted strictly. This is what precisely been discussed and laid down by this Court in the case of Nimba Yadav Bhoi (supra). After referring to various decisions for interpreting the scope and mandate of Section 39 of the Act, this Court has made following observations in paragraph no.26.

"26] Considering the provisions contained in Section 39(1) of the said Act, and the law on the subject matter discussed hereinabove, it is apparent that the enquiry under Section 39 of the said Act has necessarily to be conducted by the Chief Executive Officer and none else. Such enquiry has to be preceded by necessary order directing the Chief Executive Officer to hold the enquiry and such order should be necessarily issued by the President of the Zilla Parishad. Pursuant to such appointment, the Chief Executive Officer himself has to hear the person against whom the enquiry is to be conducted and based on such enquiry, the Chief Executive Officer has to prepare a report and submit the same to the President of the Zilla Parishad. All these requirements are mandatory in nature and any failure in that regard on the part of the authorities, the proceedings under Section 39(1) of the said Act would be vitiated and any order passed on the basis of such proceedings which are vitiated would be rendered null and void. Reverting to the facts of the case, undisputedly, the order of the removal of the petitioner from the office of Sarpanch was not preceded by any enquiry by the Chief Executive Officer. There was no order of the President appointing the Chief Executive Officer to enquire into the mater."

 

  Since no contrary authority having been cited before me, I find no reason and justification from taking any other view. When it is a matter of taking a drastic action against a Sarpanch and the provision requires inquiry to be conducted by a Chief Executive Officer to whom it is delegated by the Commissioner respondent no.2 he could not have overlooked the fact that instead of the Chief Executive Officer, the inquiry was conducted by a 3 member committee as per the directions of the Chief Executive Officer. It is trite that delegatus non potest delegare. The Chief Executive Officer being the delegate of the Commissioner cannot further delegate the powers of holding the inquiry. When the Legislature in its wisdom has expected a superior officer to undertake the inquiry, in all probabilities because a drastic action against an elected Sarpanch is to be taken, the inquiry ought to have been conducted by the Chief Executive Officer himself. That having not been done, the lapse in my considered view goes to the root of the validity of the entire process.[Para No.13]