Tripura High Court
Smti Sangita Sharma (Dhyani) vs M/S J.K. Construction on 30 June, 2021
Equivalent citations: AIRONLINE 2021 TRI 348
Author: S. G. Chattopadhyay
Bench: S. G. Chattopadhyay
Page - 1 of 22
HIGH COURT OF TRIPURA
AGARTALA
1. Crl. Rev. P No.06/2021
1. Smti Sangita Sharma (Dhyani),
W/o. Sri Sambhu Prasad Dhyani, R/o. Ram Krishna
Palli, 79 Tilla, P.O.-Kunjaban, PS-East Agartala,
District-West Tripura.
............... Accused Petitioner(s).
Versus
1. M/S J.K. Construction.
C/O. Das Builders, Joynagar Bus Stand, Agartala,
West Tripura. Represented by it partners, namely,
(a) Shri Jiban Kumar Saha, (b) Sri Shekhar Ch.
Podder, (c) Sri Surajit Saha, (d) Sri Debashish Das,
(e) Sri Dipankar Datta, (duly represented by its
constituted attorney namely- Sri Sekhar Ch. Podder)
2. The State of Tripura.
Represented by learned P. P, High Court of Tripura,
Agartala.
............... Respondent(s).
2. Crl. Rev. P No.07/2021
1. Smti Sangita Sharma (Dhyani),
W/o. Sri Sambhu Prasad Dhyani, R/o. Ram Krishna
Palli, 79 Tilla, P.O.-Kunjaban, PS-East Agartala,
District-West Tripura.
............... Accused Petitioner(s).
Versus
1. M/S J.K. Construction.
C/O. Das Builders, Joynagar Bus Stand, Agartala,
West Tripura. Represented by it partners, namely,
(a) Shri Jiban Kumar Saha, (b) Sri Shekhar Ch.
Podder, (c) Sri Surajit Saha, (d) Sri Debashish Das,
(e) Sri Dipankar Datta, (duly represented by its
constituted attorney namely- Sri Sekhar Ch. Podder)
2. The State of Tripura.
Represented by learned P. P, High Court of Tripura,
Agartala.
............... Respondent(s).
Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 2 of 22
BEFORE
THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
In Crl. Rev. P. No.06/2021.
For Petitioner(s) : Mr. T. D. Majumder, Sr. Advocate.
Mr. Biplab Debnath, Advocate.
For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.
Mr. T. K. Debbarma, Advocate.
In Crl. Rev. P. No.07/2021.
For Petitioner(s) : Mr. Biplab Debnath, Advocate.
For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.
Mr. T. K. Debbarma, Advocate.
Date of hearing : 10th March, 2021.
Date of Judgment & Order : 30th June, 2021.
Whether fit for reporting : NO.
JUDGMENT AND ORDER
[1] This criminal revision petition is directed against common
judgment dated 16.05.2020 delivered by the Sessions Judge, West
Tripura, Agartala in Criminal Appeal No.20 of 2017 and Criminal Appeal
No.21 of 2017 affirming the judgment and order of conviction and
sentence dated 04.05.2017 passed by the Additional Chief Judicial
Magistrate in case No. NI 107 of 2008 and NI 113 of 2008 sentencing the
petitioner to fine in both the cases under Section 138 of the Negotiable
Instrument Act, 1981 (for short N.I. Act). In case No. NI 107 of 2008 the
petitioner was sentenced to a fine of Rs.15,00,000/- with default
stipulation and in case No. N.I 113 of 2008 she was sentenced to a fine of
Rs.20,00,000/- with default stipulation
[2] The petitioner filed separate criminal revision petitions against
the impugned judgment passed by the learned Sessions Judge which
Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 3 of 22
were numbered as Crl. Rev. P.No.6 of 2021 and Crl. Rev P. No.7 of 2021.
Facts and law being same in both the petitions, the said petitions are
taken up together for disposal by this common judgment. [3] Factual background of the cases are as under:
In Crl. Rev. P. No.06 of 2021:
Respondent No.1 herein being complainant filed a complaint under Section 138 N.I Act and Section 420 IPC in the Court of the Chief Judicial Magistrate, West Tripura, Agartala on 28.06.2008. The said respondent, a registered partnership firm, was represented by its constituted attorney. It was alleged in the complaint that the firm was engaged in various businesses as a planner, developer and contractor. The accused (present petitioner) was engaged in manufacturing bricks and the name of her company was Ayush Bricks Industries. The said accused (petitioner herein) agreed to supply bricks and bats to the complainant for carrying out its business and an agreement was executed between them for this purpose. Pursuant to such agreement, complainant paid money in advance to the accused for supply of bricks and bats within the stipulated period of time. The accused having failed to supply the materials within the stipulated period, time was extended by a separate agreement and post dated check was issued by the accused(petitioner herein) to secure the transaction. Since the accused could not supply the materials within the extended time as per the agreement, the complainant presented the said cheque of a sum of Rs.15,00,000/- at UCO Bank, Agartala for its encashment on 30.04.2008. The cheque was bounced and as a result, the said bank returned the cheque to the Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 4 of 22 complainant with a return memo on account of insufficiency of fund in the account of the accused. The complainant tried to contact the accused but there was no response from her side. Complainant then issued statutory demand notice to the accused asking her to pay back the cheque amount to the complainant. Despite receiving the notice, accused did not make the payment. Thereafter the complaint was filed under Section 138 of the N.I Act.
In Crl. Rev. P. No.07 of 2021:
In the similar set of circumstances accused (petitioner herein) issued a separate cheque of a sum of Rs.20,00,000/- bearing Cheque No.B/B81/663934 dated 30.05.2008 drawn on State Bank of India at its Kunjaban branch against her outstanding liabilities to the complainant. The complainant presented the said cheque for encashment of UCO Bank at its Agartala branch. But the said cheque was also dishonoured by the bank. The cheque was returned to the complainant by a return memo dated 31.05.2008 for insufficiency of fund in the account of the accused. Complainant tried to contact the accused. Since there was no response from the side of the accused, statutory demand notice was issued to her. Despite receipt of notice the accused did not pay back the money. As a result, the complainant filed a separate complaint under Section 138 N.I Act in the Court of the Chief Judicial Magistrate, West Tripura at Agartala. [4] Separate cases were registered by the trial Court on the said complaints and the cases were also tried separately. [5] In the course of trial complainant examined its attorney namely, Sri Sekhar Ch. Podder as PW-1, Sri Babul Majumder, an officer of Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 5 of 22 the State Bank of India of its Kunjaban Branch as PW-2, the Manager of the Agartala Branch of UCO Bank as PW-3 in both the cases. In case No. N.I 107 of 2008, complainant introduced as many as 16 documents including the dishonoured cheque (Exbt.4) in original, the return memo issued by the bank (Exbt.5) etc. Similarly, in N.I 113 of 2008 besides adducing the oral evidence of three PWs, complainant introduced as many as 17 documents including the bounced cheque in original (Exbt.4), the cheque return memo (Exbt.6) etc. [6] After the recording of prosecution evidence was over, trial Court examined the accused under Section 313 Cr. P.C in both the cases separately. In her reply, in case No. N.I. 107 of 2008 accused did not deny the cheque. It was stated by her that she issued a blank cheque to the complainant. About the agreements she stated that she signed those agreements without going through the contends of those agreements. She also desired to adduce evidence on her defence. Similarly, in case No. N.I 113 of 2008, during her examination under Section 313 Cr. P.C she stated that she made payment of a part of the cheque amount to the complainant during the pendency of the case. About the agreement she stated that she was not aware of the contents of those agreements. She also desired to adduce evidence on her defence. Eventually, she did not adduce any evidence on her defence. The trial Court after hearing the submissions of the counsel representing the parties delivered separate judgments in both the cases. In case No. N.I 107 of 2008 the accused was convicted and sentenced to a fine of Rs.15,00,000/-(Fifteen lakhs) and in default to S.I for six months. It was ordered that fine money on Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 6 of 22 realization be paid to the complainant as compensation. In case No. N.I 113 of 2008 she was sentenced to a fine of Rs.20,00,000/-(Twenty lakhs) and in default of payment of fine to S.I for six months and it was directed that fine money on realization be paid to the complainant as compensation.
[7] The complainant challenged the said judgment of the trial Court in appeal in the Court of the Sessions Judge in West Tripura District at Agartala. As stated above, by a common judgment dated 16.05.2020 the learned Sessions Judge affirmed the conviction and sentence of the accused observing as under:
"6) As per the evidence adduced in both the cases, according to the deed of agreement dated 7.4.2007 (Ext.11 in NI 113/2008 & Ext.9 in NI 107/2008) the accused describing her status as Proprietor (not a partner of any partnership firm) of Ayush Bricks Industries entered into agreement with M/s J.K. Construction to sell certain quantity of brick bats and picket with certain rate to them with condition to make delivery of the same by 31.1.2008 and as per deed of agreement dated 15.12.2007 (Ext.12 in NI 113/2008 & Ext.10 in NI 107/2008)) she entered into agreement with said M/s J.K. Constructions to sell certain quantity of 1 st class bricks and 1st class bats & pickets of certain quantity with certain rate by 31.3.2008. In NI 107/2008, another agreement dated 30.3.2008 was proved as Ext.16/1 to 16/4 whereby time for performance of said two agreements by the accused was extended upto 30.4.2008 and it was also further mentioned that two post dated cheques for Rs.15 lakh dated 30.4.2008 and Rs.20 lakh dated 30.5.2008 respectively were issued as security to be deposited by the complainant side on failure from the side of accused, on and from the dated mentioned in those cheques. Thus, as per said term, the complainant was entitled to deposit the cheque dated 30.4.2008 on that date itself on failure by the accused to deliver the demanded goods. Thus, the argument from the side of accused that before the extended period of 30.5.2008, the cheque of Rs.15 lakh was illegally deposited in the Bank on 30.4.2008 is not acceptable and more so, said issue was earlier raised before Hon'ble High Court was also not accepted. Anyway, in NI 113 of 2008, the cheque dated 30.5.2008 was proved as Ext.4 and bank intimation slip was proved as Ext.6 which shows that said cheque was dishonoured with comment "Refer to drawer" and as per counterfoil of deposit voucher (Ext.5), it was deposited on 30.5.2008. On Bank Official Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 7 of 22 namely Mr. Babul Majumder was examined in that case as PW.2 who stated that the maximum limit of the account of said Ayush Brick Industries was Rs.10 lakh and as such at no point of time there was Rs.15 lakh or Rs.20 lakh in said account, though in his cross examination, he stated that he could not say as to how Rs.12 lakh was allowed to be drawn from said account as statement covering period 31.3.2008 to 27.11.2009 was showing that there was negative balance of Rs.12,40,508/- in that account. Another bank employee namely Mr. Dilip Barman (PW.3) clarified that whenever there is insufficient fund or whenever there is any dispute relating to any cheque, same is returned with endorsement "referred to drawer". From, the evidences of these two witnesses, it is established that there was no scope to honour those two cheques for sufficiency of fund as maximum limit of said account (perhaps CD account) was Rs.10 lakh. Notice of dishounour of said cheque was duly sent to the accused vide Ext.7 & 8 within stipulated time which was delivered on 7.6.2008 and case was filed on 8.7.2008.
7) Similarly in NI 107/2008, the cheque dated 30.4.2008 for Rs.15 lakh (Ext.4) was dishonoured on the ground of insufficiency of fund as evident from the intimation slip dated 2.5.2008 (Ext.5). Statutory notice (Ext.6) was duly sent on 15.5.2008 as per postal receipt marked as Ext.7. As per intimation of the postal authority (Ext.8), it was delivered to the accused on 17.5.2008 and the case was filed on 28.6.2008. No reply of any of said two notices was given by the accused to the complainant, at least records do not suggest so.
8) Though Ld. Counsel of the accused-appellant argued that the both the cases were not maintainable as the cheques were issued as a matter of security, but said matter has already been agitated before Hon'ble High Court and decided in negative as mentioned above, cannot be reopened in this forum further. Ld. Counsel also argued that the firm of the accused was not made a party, so the case was not maintainable. But, there is nothing that the business establishment of the accused was a partnership firm formed as per provision of the Indian Partnership Act, 1932, or it was a company as defined in explanation (a) to section 141 of N.I.Act and therefore, the law as laid in Ajit Balse (supra) has been misplaced from the side of accused-appellant. Situated thus, it is held that the appeals are devoid of merit and hence are liable to be dismissed.
O=R=D=E=R In view of above discussion, both the appeals fail and accordingly those are dismissed.****"
[8] The aggrieved petitioner has challenged the said judgment of the leaned Sessions Judge by filing two separate criminal revision petitions on the following grounds:
Crl. Rev. P Nos.06/2018 & 07/2018.
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(i) The impugned cheques were issued as collateral security for which the accused petitioner cannot be prosecuted under Section 138 N.I Act.
(ii) The appellate Court should not have relied on the judgment and order dated 17.01.2012 of the High Court in Crl. Rev. P No. 82 of 2010 which was passed by the High Court on the question of maintainability of Case No. N.I. 107 of 2008 and similarly, the appellate Court should not have relied on the order dated 14.09.2011 which was passed by this High Court in Crl. Rev. P. No. 81 of 2010 on the question of maintainability of N.I 113 of 2008.
(iii) The Courts below did not appreciate the discrepancies appearing in the evidence of prosecution witnesses and erroneously decided the case relying on their evidence. The Courts below did not appreciate that by agreement dated 30.3.2008 executed between the parties time for supply of brick bats was extended till 30.05.2008. Accordingly, accused issued post dated cheque aggregating to Rs.35,00,000/- as collateral security but the complainant petitioner presented the cheque at the bank for encashment on 30.04.2008 before the said extended period of the agreement for which accused respondent cannot be held liable under Section 138 N.I. Act.
[9] In the course of arguments Mr. T. D. Majumder, learned Sr. advocate appearing for the petitioner along with Mr. B. Debnath, learned Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 9 of 22 advocate argued that similar issue came up before the Apex Court in Indus Airways Pvt. Ltd. and Others Vrs. M/s. Magnum Aviation Pvt. Ltd. and another reported in (2014) 12 SCC 539 where post dated cheques of different amounts were issued by the accused purchaser as advance payment in respect of some purchase orders which eventually got dishonoured on presentation at the bank. The Apex Court allowed the appeal of the accused purchaser accepting the view that the explanation to Section 138 of the N.I Act makes it clear that the cheques shall be relatable to an enforceable liability or debt and as on the date of issuing of the cheque there was no existing liability in the sense that the title in the property had not passed on to the accused since the goods were not delivered. In the present case it is contended by the counsel of the petitioner that the petitioner did not have any enforceable liability or debt on the date on which the cheques were issued by her and as such she should not have been saddled with the liability under Section 138 N.I. Act.
[10] Counsel for the accused respondent also argued that in the case of M.S. Narayana Menon alias Mani Vrs. State of Kerala and another; reported in (2006)6 SCC 39 it was held by the Apex Court that in a case under Section 138 N.I Act burden of proof on the accused is not heavy and he is not required to disprove the prosecution in its entirety. The accused discharges his burden on the basis of preponderance of probability through direct or circumstantial evidence and for this purpose the accused can also rely on the evidence adduced by the complainant. According to Mr. Datta Majumder, learned Sr. Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 10 of 22 Advocate, the accused petitioner in the present case successfully discharged her burden by raising a probable defence. The Courts below did not appreciate these facts and erroneously held the accused respondent guilty. Mr. Datta Majumder, learned Sr. advocate has also relied on the decision of this High Court in Pradip Roy Vrs. Bidyut Pal:
reported in 2021 Legal Eagle (TRI) 84 wherein this High Court accepted the view of the Trial Court that unless it is proved to the satisfaction of the Court that the cheque was issued by the accused in the discharge of his legally enforceable debt, the accused cannot be prosecuted under Section 138 N.I Act. According to Mr. T. D. Majumder, learned Sr. advocate no legally enforceable debt has been proved in the present case and, therefore, the Courts below erroneously held the accused petitioner guilty. Learned counsel therefore, urges the Court to allow the criminal revision petitions.
[11] Mr. T. K. Debbarma, learned counsel appearing for the complainant respondent has contended that the complainant successfully proved his case at the trial Court and the courts below by their concurrent findings found the accused petitioner guilty and she was rightly sentenced under Section 138 N.I. Act. It is contended by Mr. Debbarma, learned advocate that accused petitioner has not been able to make out any ground for interfering with the concurrent findings of the Courts below.
Relying on the decision of the Bombay High Court in Balaji Agencies Pvt. Ltd. Vrs. Vilas Bagi and Another: reported in 2009 CRI. L. J.
4250 learned counsel submits that even if it is assumed that accused petitioner issued the cheques as security, the provision of Section 138 N. Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 11 of 22 I Act would be attracted because she neither disputed her liability nor informed the complainant that the complainant should not present such cheques at bank. Purpose of giving the securities is to ensure that such securities can be enforced when need arises and those are not mere pieces of paper. Learned counsel referred to paragraphs 21 and 22 of the judgment wherein the Bombay High Court having referred to various judgments of the Apex Court on the issue held as follows:
21. The expression "secure", as per Black's Law Dictionary means to give security, to assure payment. As per Oxford dictionary security, inter alia, means thing deposited or hypothecated as pledge for fulfillment of undertaking or payment of loan to be forfeited in case of failure. Security is given, not as a piece of paper to be retained by the creditor but to be enforced when the debtor fails to pay the amount. In this case the subject cheque was given to assure the payment of the goods taken on credit by the accused and once payment was not forthcoming, nor the bank guarantee sought for by the Complainant, the Complainant was certainly entitled to enforce the security and this was done by the Complainant after due notice to the accused and in such a situation, in my humble view, it could not be said that the subject cheque was not given in payment of any debt or liability and only because it was given as security the accused would not be liable for dishonour of the same.
What use is a security which cannot be enforced? Since the accused had not objected to the letter dated 16-3- 1999 the Complainant was free to complete the details on the cheque, earlier given as security, and present the same to recover the amount due to the Complainant. In such a fact situation, the ratio of the Apex Court in I.C.D.S. Ltd. v. Beemna Shabeer(supra) was fully attracted. In other words, no doubt the cheque was issued as security but demand to clear the debt was made and upon failure, the security was enforced.
22. In the above context, reference to the case of Karekar Finance Pvt. Ltd. v. M. N. Bashyam and another(2007(9) LJSOFT(URC) 15) would be relevant. Referring to the Judgment in Mrs. Shila @ Sudha Manjunath Vernekar v. Rayaba S. Dessai and another(unreported decision of this Court dated 27-1- 2005 in Criminal Revision Application No.29 of 2004) this Court observed that:-
"From the decisions cited on behalf of both the parties and referred to herein above, it appears that there is preponderance of judicial opinion in favour of the proposition that when a cheque is issued duly signed by the drawer and the holder completes the same in other respects namely as Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 12 of 22 regards the amount due and the date, the presumption would still be available to the complainant/holder unless the accused shows that the said particulars were filled in without the consent of the accused/drawer".
"In my view cases like this cannot be termed to be a case where there is a material alteration. Material alteration will presuppose a change of something which is there to something which was not there. In cases like this there is a tacit or implied consent by the drawer to fill in the details of the amount and the date of the cheque".
[12] Under the aforesaid premises counsel appearing for the complainant respondent urges the Court for dismissing the petitions of the accused petitioner.
[13] In the course of their arguments counsel representing the parties had taken this Court to the evidence recorded during trial. [14] In Crl. Rev. P. No.06 of 2021 Sekhar Ch. Podder, constituted attorney of the complainant respondent testified at the trial Court as PW-
1. He submitted the cheque bearing No.663933 dated 30.04.2008 of a sum of Rs.15,00,000/- drawn on SBI, Kunjaban branch which was issued by the accused petitioner in favour of the complainant respondent. Said cheque was marked as Exbt-4 at the trial. The bank's slip/memo dated 02.05.2008 returning the said cheque for insufficiency of the fund in the account of the accused was also produced at the trial on behalf of the complainant and it was taken into evidence and marked as Exbt.5.
In his cross examination the PW categorically asserted that the accused petitioner issued two post dated cheques aggregating to Rs.35,00,000/-. As noted, the petitioner has produced the original cheque and also the bank slip dated 02.05.2008 returning the said cheque for Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 13 of 22 insufficiency of the fund in the account of the accused respondent in original. From a perusal of said cheque (Exbt.4) it appears that the cheque was dated 30.4.2008 which was deposited by the petitioner at his bank and by the return memo dated 2.5.2008, bank returned the said cheque to the petitioner intimating that the cheque was dishonoured for insufficiency of fund. Similarly, in Crl. Rev. P. No. 07/2021 the same PW- 1 asserted in his cross examination in chief that accused respondent issued a post dated cheque which was dated 30.5.2008 bearing No.663534 of an amount of Rs.20,00,000/- drawn on SBI, Kunjaban branch. The PW identified the said cheque which was marked as Exbt.4 in original. The PW further stated that vide deposit slip dated 30.5.2008 (Exbt.5) complainant respondent presented the said cheque to his bank at the Agartala branch of UCO Bank and the said cheque was returned by the Bank by return memo dated 30.5.2008 (Exbt.6). [15] In the cross examination of the witness accused petitioner had taken the same plea that she had issued a blank cheque and the said cheque was not even filled in by her. Suggestions were put to the witness on behalf of the accused petitioner in this regard which were denied by the witness.
[16] PW-2, Babul Majumder was an officer in the State Bank of India at its Kunjaban branch at the material time who supported the facts that the impugned cheques were dishonoured from the said bank due to insufficiency of fund in the account of the accused. Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 14 of 22 [17] PW-3, Dilip Barman who was an Officer at the UCO bank at its Agartala branch at the material time also testified in both the cases and stated that the impugned cheques were presented by the complainant respondent for encashment through the said branch of UCO bank where the respondent maintained its account. The cheques were sent to SBI, Kunjaban branch on which the cheques were drawn and the same were returned from the said Kunjaban branch of SBI for insufficiency of fund in the account of the accused petitioner. [18] From a perusal of the statement of the said witnesses, it appears that the accused petitioner did not dispute issuance of the impugned cheques. She tried to defend herself by saying that the said cheques were issued in blank by her and she did not even fill in those cheques. She however, did not deny her signature on either of the cheques.
[19] The Apex Court in Bir Singh Vrs. Mukesh Kumar: reported in (2019) 4 SCC 197 succinctly held that once a person signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It had also been held by the Apex Court by the said judgment that even if a blank cheque is voluntarily presented to the payee, towards some payment, the payee may fill up the amount and other particulars which itself would not invalidate the cheque. Observation of the Apex Court in this regard is as under:
"32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 15 of 22 been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act.
33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
35. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent- accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.
36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
In the present context there is no allegation from side of the accused petitioner that she signed the impugned cheques involuntarily. Rather, her business transaction with the respondent is admitted by her and the fact that she had borrowed advance from the respondent to facilitate such transaction is also admitted by her. The accused petitioner however, denied her debt or liability. Her case is that she repaid full Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 16 of 22 amount of advance to the respondent. Law is well settled that mere denial would not absolve the accused from the liability unless the statutory presumptions under the N.I Act is rebutted by the accused and the contrary is proved by adducing cogent evidence, direct or circumstantial.
[20] In Laxmi Dyechem Vrs. State of Gujarat and others :
reported in (2012) 13 SCC 375 the Apex Court held that under Section 139 of N.I Act it has to be presumed that the cheque was issued in discharge of a debt or other liability but such presumption should be rebutted by adducing evidence. Observation of the Supreme Court is as under:
"25. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor is able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant.
26. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the 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 said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 17 of 22 was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration........."
[21] The Supreme Court reiterated the same principle in Kumar Exports Vrs. Sharma Carpets: reported in (2009) 2 SCC 513 wherein the Apex Court held that it would be presumed that every negotiable instrument is duly executed for discharge of a debt or liability. The said presumption is rebutted only by proving the contrary. Observation of the Apex Court is as under:
"13. In a significant departure from the general rule applicable to contracts, Section 118 of the Act provides certain presumptions to be raised. This Section lays down some special rules of evidence relating to presumptions. The reason for these presumptions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements,
(vi) as to appropriate stamp, and (vii) as to holder being a holder in due course.
14. Section 139 of the Act provides that 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.
15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume" (rebuttable), (2) "shall presume" (rebuttable) and (3) "conclusive Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 18 of 22 presumptions" (irrebuttable). The term "presumption" is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means "taking as true without examination or proof".
16. Section 4 of the Evidence Act inter-alia defines the words "may presume" and "shall presume" as follows: -
"4. `may presume' - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.
`shall presume' - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:
**** ***** ****** *****"
In the former case the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved.
17. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of whole or part of any debt or liability."
[22] In an earlier decision in K.N. Beena Vrs.Muniyappan and another: reported in (2001) 8 SCC 458 It is held by the Apex Court that statutory presumptions under Sections 139 and 118 N.I Act cannot be rebutted by mere denial by the accused. The accused has to prove by Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 19 of 22 cogent evidence that he had no debt or liability. In the said judgment, the Apex Court made the following observation on this issue:
"6. .............. 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."
[23] Following the decision of the Apex Court in Hiten P. Dalal Vrs. Bratindranath Banerjee: reported in (2001) 6 SCC 16 this Court in Benu Roy Vrs. Rajib Ghosh: reported in (2018) 2 TLR 463 similarly held that the explanation in order to rebut the statutory presumption under the N.I Act should be supported by proof otherwise such presumption created by the statute cannot be stated to have been rebutted.
[24] The Apex court further examined the issue in Sampelly Satyanarayana Rao Vrs. Indian Renewable Energy Development Agency Limited; reported in (2016) 10 SCC 458 and clarified that presumption under Section 138 N.I. Act being statutory in nature, has to be rebutted by the accused by adducing some evidence. In the said judgment the Apex Court further clarified that some statement of the Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 20 of 22 accused itself could not be sufficient to rebut such presumption. Observation of the Apex Court is as under:
"17. In Rangappa v. Sri Mohan, this Court held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption. A post dated cheque is a well recognized mode of payment"
[25] It is no case of the accused petitioner that she signed the impugned cheques or parted with those cheques under any threat or coercion. In view of the ratio decided by the Apex Court in the case of Bir Singh (supra) her plea that she issued blank cheques and she did not even fill in those cheques cannot absolve her from her liability particularly when it is proved that she had a business transaction with the petitioner and admittedly she had taken advance from the petitioner to facilitate such transaction for which she issued cheque in favour of the petitioner. In such circumstances statutory presumptions that the cheques were issued by her in discharge of her liability arises against her which she could not rebut by adducing evidence. Therefore, in so far as her conviction is concerned I do not find any error in the concurrent findings of the Courts below. In the result, conviction of the petitioner under Section 138 N.I. Act is upheld.
[26] In so far as the sentence is concerned, it is found that in case No. N.I 107/2008 trial Court sentenced her to a fine of Rs.15,00,000/- and in default to S.I for six months and in case No. N.I. 113/2008 the Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 21 of 22 trial Court sentenced the accused respondent to fine of Rs.20,00,000/- and in default S.I for six months. It was directed in both the cases that fine on realisation be paid to the complainant respondent as compensation.
[27] But PW-1, attorney of the respondent, in his cross examination in both the cases has made a categorical statement that the respondent paid an advance of Rs.24,00,000/- to the accused but they had taken post dated cheques of an amount Rs.35,00,000/- from her. His statement is as under:
"On failure to perform the agreements dated 07.04.07 and 15.12.07 the letter agreements dated 03.03.08 was executed. As per first clause of agreements for saying dated 07.04.07 we paid Rs.7 lakh by a post dated cheque and Rs.2 lakh in cash to the accused for purchasing bricks. As per agreement dated 15.12.07 we paid Rs.5 lakh by two post dated cheque and Rs.2 lakh in cash to the accused and by way two agreements we paid Rs.24 lakh to the accused. We took a post dated of Rs.35 lakh from the accused in case she fails to perform the terms of 3rd agreement.****"
Such assertion of the witness was not specifically denied by the accused. She simply suggested to the PW that she had no dues to be paid to the complainant which was denied by the complainant. In view of such statement made by PW-1 on behalf of the complainant respondent, it appears that accused had an outstanding liability to the extent of Rs.24,00,000/- to the complainant. Admittedly, the complainant had taken post dated cheques of Rs.35,00,000/- from her in anticipation that she might fail to perform the terms of 3rd agreement executed between them.
Crl. Rev. P Nos.06/2018 & 07/2018.
Page - 22 of 22 [28] Considering the amount of liability of the accused towards the complainant respondent and considering the peculiar facts and circumstances of the case, I find it appropriate to reduce the fine imposed on the accused by way of sentence to Rs.24,00,000/-. Consequently, the sentence imposed on the petitioner by the trial Court and affirmed by the appellate Court is modified as under:
Accused petitioner Smti Sangita Sharma (Dhyani) is sentenced to fine of Rs.24,00,000/-(twenty four lakhs) and in default of payment of fine she will suffer S.I for six months. Fine money, on realisation, be paid to the complainant respondent in full. Accused petitioner is directed to deposit the said amount of fine in Court within a period of two months from today failing which the trial Court shall takes steps in accordance with law to make her suffer the default sentence.
[29] In terms of the above, both the criminal revision petitions being Crl. Rev. P. No.06/2021 and Crl. Rev. P. No.07/2021 are disposed of by this common judgment. Pending application(s), if any, shall also stand disposed of.
Send down the L.C record.
JUDGE Dipankar Crl. Rev. P Nos.06/2018 & 07/2018.