Himachal Pradesh High Court
Geeta Devi vs Surinder Singh And Another on 12 September, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Revision No. 79 of 2019
Decided on: September 12, 2019
.
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Geeta Devi .........Petitioner
Versus
Surinder Singh and another ...Respondents
________________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
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For the petitioner: Mr. S.D. Sharma, Advocate.
For the respondents: Mr. Vaibhav Tanwar, Advocate, for
respondent No.1.
Mr. Sumesh Raj and Mr. Sanjeev Sood,
Additional Advocates General, for
respondent No.2.
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Sandeep Sharma, J. (Oral)
Judgment dated 6.12.2018 passed by learned Additional Sessions Judge (I), Shimla, Himachal Pradesh in Cr.
Appeal No. 12-S/10 of 2018, affirming judgment/order of conviction and sentence dated 11.1.2018/26.2.2018, passed by learned Judicial Magistrate 1st Class, Court No. VI, Shimla, Himachal Pradesh in Case RBT No. 266-3 of 2015/14, whereby petitioner-accused (hereinafter, 'accused') came to be convicted for the commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter, 'Act'), is under Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 29/09/2019 04:17:53 :::HCHP -2-challenge in the instant proceedings filed under S.397 CrPC filed by the accused, seeking therein her acquittal, after setting aside .
aforesaid judgments/order of conviction and sentence.
2. Briefly stated, facts of the case as emerge from the record, are that respondent-complainant (hereinafter, 'complainant') instituted a complaint under S.138 of the Act in the court of Judicial Magistrate 1st Class, Court No. VI, Shimla, alleging therein that in the year 2014, accused approached him seeking financial help of Rs.1,50,000/-, for making payments in other cases instituted against her under S.138 of the Act, which at the relevant time were pending in different courts.
Complainant provided a sum of Rs.70,000/- on 16.4.2014 and another sum of Rs.80,000/- on 25.4.2014, after borrowing the same from his friends. Though the accused promised to repay the same within a period of one month, but subsequently, she with a view to discharge her liability, issued cheque bearing No. 076049 dated 18.6.2014 (Ext. CW-1/A) amounting to Rs.1,50,000/- in favour of the complainant, drawn on account No. 20163042399, maintained by her with the Allahabad Bank, Shimla. However, the fact remains that the aforesaid cheque on its presentation was dishonoured on account of insufficient funds in the account of the accused, vide memo dated 26.7.2014 (Ext. CW-1/B) After having received aforesaid memo, complainant served accused ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP -3- with legal notice (Ext. CW-1/C) calling upon her to make payment of Rs.1,50,000/- within the stipulated period but since .
the accused failed to make good the payment within the period prescribed in the legal notice, complainant was compelled to initiate proceedings under S.138 of the Act.
3. Learned Judicial Magistrate 1st Class, vide its judgment dated 8.5.2017, dismissed the complaint and acquitted the accused. Complainant, being aggrieved and dissatisfied with the aforesaid judgment of acquittal recorded by learned Court below, approached this Court by way of Criminal Appeal No. 295/2017, on the following grounds:
"(i) Section 139 of the NI Act does not lay down any presumption with respect to existence of the legally enforceable debt and presumption is merely in favour o the holder of the cheque and the complainant has to establish the existence of legally enforceable debt against the accused.
(ii) The friends from whom the complainant allegedly borrowed Rs.50,000/- each and thereafter advanced to the accused not examined.
(iii) Advancement of loan in violation of Section 269 SS of the Income Tax Act (for short, IT Act;), therefore, not recoverable.
(iv) Loan not shown in Income Tax Return furnished by the complainant entitled the accused for acquittal."
4. This Court, after careful perusal of the record, set aside the judgment of acquittal passed by learned Magistrate and ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP -4- remanded the case back to learned Court below with the direction to decide the case afresh strictly as per its facts as well .
as in accordance with law. In the aforesaid background, complaint having been filed by the complainant came to be re-
heard and decided by Judicial Magistrate 1st Class, Court No. VI, Shimla, who while holding accused guilty of having committed offence punishable under S.138 of the Act ibid, convicted and sentenced her to undergo simple imprisonment for one month and to pay compensation to the tune of Rs.2.00 Lakh.
5. Being aggrieved and dissatisfied with the aforesaid judgment/order of conviction and sentence recorded by learned judicial magistrate, accused preferred an appeal in the court of learned Additional Sessions Judge (1), Shimla, Himachal Pradesh, who vide judgment dated 6.12.2018, dismissed the same and upheld the judgment/order of conviction recorded by learned trial Court. In the aforesaid background, accused has approached this Court in the instant proceedings.
6. Having heard learned counsel for the parties and perused the material available on record, this Court finds no force in the arguments of Mr. S.D, Sharma, learned counsel for the accused that after passing of judgment dated 3.11.2017 by this Court in Cr. Appeal No. 295 of 2017, it was not open for the Court below to re-appreciate the evidence, on the basis of which ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP -5- it had already acquitted the accused. Careful perusal of earlier judgment rendered by this Court, clearly reveals that while .
remanding case back, this court categorically observed in para-
12 that, "from the aforesaid discussion, it is clearly established that learned trial Magistrate has not correctly applied the law and therefore, the order of acquittal as passed cannot withstand judicial scrutiny and deserves to be set aside. Ordered accordingly."
7. This Court, while setting aside order of acquittal also clarified that it has not gone into the relative merits of the case and Court below would try to decide the case afresh strictly as per its facts and in accordance with law. Close scrutiny of the material available on record vis-à-vis reasoning assigned in the judgment of conviction recorded by learned Court below, clearly suggests that learned trial Magistrate proceeded to decide the matter afresh on the basis of material available on record as well as law on the point. As per learned counsel for the accused, since learned trial Magistrate had already applied its mind and had passed judgment of acquittal, while deciding the matter afresh, it ought not have re-appreciated the evidence, especially on the aspect of source of money allegedly paid by the complainant to the accused. However, this Court is not impressed with the aforesaid argument advanced by learned counsel for the accused, ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP -6- for the reason that after remanding of the case back, learned trial Magistrate was well within its jurisdiction to decide the matter .
afresh, taking note of the evidence, be it ocular or documentary, adduced by the respective parties.
8. Accused, while denying the case of the complainant, in her statement recorded under S.313 CrPC, categorically stated that a blank cheque was issued as a security as the complainant stood her surety in another case. Accused nowhere disputed her signatures on the cheque, rather, issuance of cheque in favour of the complainant stands duly admitted. Precisely, the defence of the accused is that the cheque in question was issued by her as a security because, complainant stood her surety in another case under S.138 of the Act and he had obtained blank cheque from her. Accused further made an attempt to carve out a case that the cheque in question subsequently came to be misused by the complainant, by filling in the amount. Since there is no dispute with regard to signatures of accused on the cheque, there is presumption under Ss. 118 and 139 of the Act in favour of the complainant being holder of cheque that the cheque was issued by the accused in favour of complainant in discharge of legally enforceable debt/liability. Onus is/was upon the accused to rebut the aforesaid presumption.
::: Downloaded on - 29/09/2019 04:17:53 :::HCHP -7-9. Complainant, while deposing before learned trial Magistrate, reiterated the averments made in the complaint. He .
sated that the accused is his sister-in-law i.e. wife of his elder brother. In April, 2014, she disclosed to him that she requires to pay some money in another case registered against her under S.138 of the Act and as such, demanded Rs.1.50 Lakh from him.
Complainant gave Rs.70,000/- on 16.4.2014 and Rs.80,000/- on 25.4.2104, after borrowing the same from his friends. Accused issued cheque Ext. CW-1/A, but the same was dishonoured vide Ext. CW-1/B by the Banker of accused. Complainant issued demand notice, Ext. CW-1/C, through his counsel. Accused neither replied to demand notice nor made any payment within the period prescribed in the same. Aforesaid witness in his cross-
examination categorically stated that he is working as a Carpenter in MES Jutogh and getting Rs.33,000/- per month.
This witness also admitted that accused was facing criminal complaint under S.138 of the Act in Court No.2, Shimla, wherein he stood surety to the accused. This witness categorically stated that he obtained Rs.50,000/- from his friendsnamely Raju and remaining amount from another friend namely Stephen Deen.
This witness also admitted that signature over cheque is in different ink and date is in different ink. He categorically denied the suggestion put to him that a blank cheque was given to him.
::: Downloaded on - 29/09/2019 04:17:53 :::HCHP -8-10. Accused, Geeta Devi, while deposing as DW-1, stated that the complainant, who is related to her, stood her surety in .
another case and obtained cheque as security in that case. She stated that the case Harbhajan Vs. Geeta was compromised by her and till date she is paying Rs.5,000/- from her salary. She tendered copy of statement of Bank, Ext. DW-1/A and copy of letter dated 4.6.2016, Ext. DW-1/B.
11. Accused deposed that the complainant had a quarrel with her husband and on account of that, he filled in the cheque and presented the same for encashment. Most importantly, this witness admitted that she had received the demand notice Ext.
CW-1/C. In her cross-examination, she admitted that she is drawing salary of Rs.48,000/- and her carry home salary is Rs.27,000-28,000/-. Accused also admitted that she is facing 2-3 similar cases in other courts.
12. Though, in the case at hand, accused made an attempt to set up a case that the cheque in question never came to be issued towards lawful liability but as a security, however as has been noticed herein above, there is statutory presumption under Ss. 118 and 139 of the Act in favour of the holder of cheque i.e. complainant, which is undisputedly rebuttable. Once signatures on the cheque are not disputed, rather stand duly admitted, aforesaid plea with regard to cheque having not been ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP -9- issued towards lawful liability, rightly came to be rejected by learned Courts below. At this stage, reliance is placed upon a .
judgment rendered by Hon'ble Apex Court in Hiten P. Dalal v.
Bartender Nath Bannerji, (2001) 6 SCC 16, wherein it has been held as under:
"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......"
13. S.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.
14. True it is that to rebut aforesaid presumption, accused can always raise probable defence either by leading positive evidence or by referring to material, if any, adduced, on the record by the complainant, but, in the case at hand, accused has miserably failed to raise probable defence, much less ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP
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sufficient defence to rebut the presumption available in favour of the complainant under Ss. 118 and 139 of the Act. Close scrutiny .
of material available on record compels this Court to agree with Mr. Vaibhav Tanwar, learned counsel for the complainant, that there is absolutely no evidence available on record to probabilise the defence so projected by accused that the cheque was issued as a security. Accused with a view to set up aforesaid plea was required to substantiate the same by leading cogent and convincing evidence but, in the case at hand, accused even during her statement under S.313 CrPC, has not denied the factum with regard to issuance of cheque but has taken a plea that the cheque was given to the complainant as security. Mere statement of the accused is not sufficient to prove that the cheque in question was issued as a security, rather the accused, with a view to rebut the presumption available in favour of the holder, is/was under obligation to prove by leading positive evidence that the cheque in question was issued as a security.
Interestingly, in the case at hand, legal notice issued by complainant was never replied by the accused.
15. Accused, with a view to substantiate her aforesaid plea, stated that since there was a dispute between the complainant and her husband, complainant, after filling in cheque given to him as a security, presented the same to the ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP
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Bank concerned but, interestingly, the accused failed to examine her husband qua aforesaid aspect of the matter. Since there is no .
dispute, if any, with regard to issuance of cheque and accused failed to prove that the cheque was not issued in discharge of lawful liability, plea of the complainant that the cheque was issued in discharge of lawful liability, was rightly accepted to be correct by learned Courts below.
16. Hon'ble Apex Court in M/s Laxmi Dyechem vs. State of Gujarat, 2013(1) RCR (Criminal), has categorically held that 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. To raise probable defence, accused can rely upon the material submitted by the complainant. Needless to say, if the accused/drawer of cheque in question neither raises a probable defence nor is able to contest existence of a legally enforceable debt or liability, statutory presumption under S.139 of the Act regarding commission of the offence comes into play. It would be apt to reproduce following paras of judgment (supra) herein below:
"23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP
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negotiable instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay .
in the course of litigation. The Court however, further observed that 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 money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be r expected to discharge an unduly high standard of proof". The Court further observed that 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 all preponderance of probabilities.
24. 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 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.::: Downloaded on - 29/09/2019 04:17:53 :::HCHP
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25. 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 was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter r 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. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy."
17. Learned counsel for the accused also argued that learned Courts below have failed to properly appreciate the other defence raised by the accused that the complainant had no capacity to lend the money. While placing reliance upon recent judgment rendered by Hon'ble Apex Court in Basalingappa vs. Mudibasappa, Cr. Appeal No. 636 of 2019 decided on 4.9.2019, ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP
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learned counsel for the accused further argued that once probable defence with regard to capacity of complainant to lend .
money was raised by the accused, onus was upon the complainant to prove that he had sufficient money to lend.
18. In the aforesaid judgment, Hon'ble Apex Court, reiterated that S.139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant accused cannot be expected to discharge an unduly high standard of proof. In the aforesaid judgment, Hon'ble Apex Court having taken note of judgments passed by their lordships on earlier occasions, has summarized the principles in the following manner:
"23. 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. 27
(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 ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP
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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 28 139 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.
24. 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."
19. Hon'ble Apex Court, in the case before their lordships, while applying principle of law as discussed herein above, observed that when signatures on cheque stand admitted, a presumption shall be raised under S.139 that the cheque was issued in discharge of debt or liability, but such presumption is rebuttable, if some probable defence is raised by the accused.
Since in the case before Hon'ble Apex Court, complainant during his cross-examination, failed to give satisfactory reply qua his financial capacity to pay Rs.6.00 Lakh, Hon'ble Apex Court came to be convinced that probable defence of accused has been ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP
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raised, which shifted the burden on the complainant to prove his financial capacity and other facts.
.
20. In the case at hand, though probable defence with regard to capacity of the complainant to lend money appears to have been taken very casually because, if statement of the accused recorded under S.313 CrPC as well as suggestions put to the complainant during his cross-examination are perused, same clearly suggest that the main defence of the accused is/was that she issued cheque as security, but even if such defence is tested on the basis of evidence led on record by respective parties, same deserves outright rejection. In the case at hand, careful perusal of the complaint filed by complainant under S.138 clearly suggests that he set up a case that he, after having arranged money from his friends namely Raju and Stephen Deen, gave it to the accused. Complainant again in his examination-in-chief and cross-examination categorically reiterated aforesaid factum with respect to his borrowing money from his friends, Raju and Stephen Deen. No suggestion worth the name ever came to be put to the complainant in the cross-examination with regard to source of money, which he allegedly lent to the accused.
Similarly, there is no suggestion with regard to capacity of complainant to lend money, who otherwise is a Government employee. Complainant's assertion made in examination-in-chief ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP
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that he is working as a Carpenter in MES at Jutogh and drawing salary of Rs.33,000/- per month, remained totally un-shattered, .
because at no point of time, suggestion, if any, qua aforesaid aspect of the matter came to be put to the complainant.
21. Hon'ble Apex Court in Rohitbhai Jivanlal Patel vs. State of Gujarat & Anr, Cr. Appeal No. 508 of 2019, decided on 15th March, 2019, has held that in view of statutory presumptions as contemplated under Ss.118 and 139 of the Act, onus is shifted upon the accused and unless accused discharges said onus by leading evidence on record as to show preponderance of probabilities tilting in his favour, complainant's case cannot be disbelieved for want of evidence regarding source of funds for advancing as loan to the accused. Hon'ble Apex Court in the judgment (supra) has held as under:
"17. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP
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doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect .
relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence.
19. Hereinabove, we have examined in detail the findings of the Trial Court and those of the High Court and have no hesitation in concluding that the present one was clearly a case where the decision of the Trial Court suffered from perversity and fundamental error of approach; and the High Court was justified in reversing the judgment of the Trial Court. The observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP
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consideration while examining if the accused has been able to rebut the presumption or not. The other observations as regards any variance in the statement of .
complainant and witness; or want of knowledge about dates and other particulars of the cheques; or washing away of the earlier cheques in the 23 rains though the office of the complainant being on the 8th floor had also been of irrelevant factors for consideration of a probable defence of the appellant. Similarly, the factor that the complainant alleged the loan amount to be Rs.
22,50,000/- and seven cheques being of Rs. 3,00,000/- each leading to a deficit of Rs. 1,50,000/-, is not even worth consideration for the purpose of the determination of real questions involved in the matter. May be, if the total amount of cheques exceeded the alleged amount of loan, a slender doubt might have arisen, but, in the present matter, the total amount of 7 cheques is lesser than the amount of loan. Significantly, the specific amount of loan (to the tune of Rs. 22,50,000/-) was distinctly stated by the accused-appellant in the aforesaid acknowledgment dated 21.03.2017."
22. In the case at hand, accused has not been able to rebut the statutory presumption under Ss.118 and 139 of the Act in favour of holder of cheque i.e. complainant and as such, there appears to be no illegality or infirmity in the judgments/order of conviction and sentence passed by learned Courts below. All the ingredients of S.138 of the Act stand duly proved in the case at hand, as such, this Court finds no occasion to interfere with the ::: Downloaded on - 29/09/2019 04:17:53 :::HCHP
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judgments/order of conviction and sentence recorded by learned Courts below, as such, same deserve to be upheld.
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23. In view of above, the petition at hand is dismissed being devoid of merit. Judgments passed by learned Courts below are upheld. Accused is directed to surrender before the learned trial Court to serve the sentence imposed upon her, forthwith.
Pending applications, if any, stand disposed of. Bail bonds, if any, furnished by the accused stand cancelled.
r (Sandeep Sharma)
Judge
September 12, 2019
(Vikrant)
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