Accused can be released on interim bail on the ground of snail speed of the trial

Successive application for bail is permissible under substantial change of circumstances which has direct impact on the earlier decision and not merely cosmetic changes

    This bail application of the petitioner being the sixth one before this Court, it is to be kept in mind the settled principle of law that successive application for grant of bail to an accused is permissible under the changed circumstances which must be substantial one and which has got a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence inasmuch as without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order which is not permissible under criminal law. Of Course, the principle of res judicata is not applicable while considering the successive bail application but the issues and grounds which have been canvassed earlier would not be ordinarily permitted to be re- agitated. If some important aspects of the case could not be placed earlier inadvertently and the Court feels that such aspects have a direct bearing on the result of the case, in the interest of justice, the Court can consider the same in the subsequent application.[Para No.5]

    ......... While rejecting the last bail application of the petitioner in BLAPL No.1053 of 2019, it has already been held that the detention of the petitioner has virtually become pre-trial punishment to him as the trial has not progressed much in spite of the earlier direction of this Court due to lack of sincere effort of the prosecution and moreover, the petitioner has not contributed to the delay. Though direction was given to the learned trial Court to expedite the trial keeping in view the provision under section 309 of Cr.P.C. and to take effective step to ensure the attendance of witnesses but it seems that even after the said order was received by the learned trial Court, the learned trial Court has neither followed the provision under section 309 of Cr.P.C. nor kept in view the observation made by this Court while disposing of the earlier bail application. No special reason has been assigned by the learned trial Court in adjoining the case to long dates. Not a single witness has been examined after 04.01.2020 and the status report makes it clear how difficult it has become to proceed with the trial of the case at present.

    Mr. Panigrahi, leanred Senior Advocate placed the observation made by the Hon'ble Supreme Court in the case of Ranjan Dwibedi -Vrs.- C.B.I. reported in A.I.R. 2012 S.C. 3217, wherein it is held as follows:-

"19.....However, unintentional and unavoidable delays or administrative factors over which prosecution has no control, such as, over- crowded court dockets, absence of the presiding officers, strike by the lawyers, delay by the superior forum in notifying the designated Judge, (in the present case only), the matter pending before the other forums, including High Courts and Supreme Courts and adjournment of the criminal trial at the instance of the accused, may be a good cause for the failure to complete the trial within a reasonable time. This is only illustrative and not exhaustive. Such delay or delays cannot be violative of accused's right to a speedy trial and needs to be excluded while deciding whether there is unreasonable and unexplained delay..."

    Keeping in view the observation made by the Hon'ble Supreme Court in the aforesaid case, if the order sheet of the learned trial Court is perused from 05.09.2019 onwards till the end of December 2019, it cannot be said that the delay which was caused was unavoidable or on account of any administrative factors over which the prosecution has no control. During the said period, the trial court was functioning normally and no adjournment was sought for from the side of the petitioner and therefore, the delay which has been caused by the trial Court even after the receipt of the order this Court on 22.08.2019 passed in BLAPL No.1053 of 2019, in my humble view, is unreasonable and unexplained. Of course after the last two witnesses i.e. P.W.24 and 25 were examined on 4.01.2020, the Presiding Officer was transferred on 10.01.2020 and the new Presiding Officer joined on 23.03.2020 and then the lock-down was imposed in the State since 23.03.2020 which was extended from time to time and during the said period, there was restricted functioning of the Subordinate Courts in the State as per the direction of this Court and no summons were issued to witnesses during the said period and now the letter dated 10.09.2020 of the learned trial Court makes it clear that the normal functioning of the Court has not been restored. Since the learned trial Judge has made it clear in the said letter that he shall make all endeavor to resume the trial by procuring the attendance of the witnesses in the Court, it is expected that the observation made by this Court while disposing of BLAPL No.1053 of 2019 to expedite the trial keeping in view the provision under section 309 of Cr.P.C. and to take effective step to ensure the attendance of the witnesses shall also be kept in mind. All possible steps shall be taken to proceed with the trial on day-to-day basis. Since the learned trial Court is also dealing with other cases, a particular time slot should be fixed on each date and the mandate of section 309 of Cr.P.C. shall be adhered to. The trial Court shall take all possible steps to stop the dilly- dallying or shilly-shallying attitude adopted either from the side of the prosecution or accused and ensure that the constitutional right of speedy trial of the accused as guaranteed under Article 21 of the Constitution of India is not flouted causing mockery of the trial. It seems unnecessary lengthy cross examination has been made by different set of defence counsel to the witnesses to make it a gallery show, which needs to be regulated by the learned trial Court keeping in view the provisions under sections 146, 148, 150, 151, 152 and 165 of the Indian Evidence Act, 1872.[Para No.7]

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]