Himachal Pradesh High Court
Balak Ram vs Ajay Kumar Sharma And Anr on 16 September, 2024
Neutral Citation No. ( 2024:HHC:8601 ) THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 98 of 2024 .
Reserved on: 11.09.2024 Date of Decision: 16.09.2024 Balak Ram ....Petitioners Versus Ajay Kumar Sharma and Anr.
....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? No For the Petitioner : Mr. Jia Lal Thakur, Advocate vice Mr. G.R. Palsra, Advocate.
For Respondent No.1 : Mr. Ajay Sharma, Advocate, vice Mr. Peeyush Verma, Advocate.
For Respondent No.2/State : Mr. Prashant Sen, Deputy Advocate General.
Rakesh Kainthla, Judge The present revision is directed against the judgment dated 02.01.2024passed by learned Sessions Judge, Mandi (learned First Appellate Court), vide which the judgment dated 24.04.2023 and order of sentence dated 08.05.2023 passed by learned Additional Chief Judicial Magistrate, Court No.1, Mandi, District Mandi (learned Trial Court) were upheld. (Parties shall hereinafter be referred to in the ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 2 Neutral Citation No. ( 2024:HHC:8601 ) same manner as they were arrayed before the learned Trial Court for convenience).
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2. Briefly stated, the facts giving rise to the present revision are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short 'NI Act'). It was asserted that the accused borrowed ₹3,50,000/- from the complainant on 28.08.2017 with the promise to repay it within a few months. The accused issued a post-dated cheque dated 23.01.2018 for ₹3,50,000/- to the complainant drawn on Punjab National Bank, Branch Rewalsar in the discharge of his legal liability. The complainant presented the cheque at the counter of the Bank on 15.03.2018 but it was dishonoured with the remarks 'funds insufficient'. The complainant issued a legal notice to the accused asking him to pay the amount within 15 days from the date of the receipt of the notice. The notice was served upon the accused and the accused issued a reply to the legal notice. He failed to pay the amount; hence, the complaint was filed against the accused.
3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 3 Neutral Citation No. ( 2024:HHC:8601 ) Section 138 of the NI Act. The accused pleaded not guilty and claimed to be tried. The complainant examined himself (CW1) and Bhoop .
Singh (CW2) to prove his case.
4. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that the cheque carried his signatures. He admitted that he had received a notice and said that he sent a reply to the legal notice. He claimed that he was not liable to pay any amount to the complainant and the witnesses deposed against him falsely.
He stated that the complainant, Ajay Kumar, was his tenant. He was an LIC agent. The accused took 3-4 policies from the complainant and the complainant obtained blank cheques from him. The complainant misused his blank cheques. He (the complainant) also handed over the blank cheque to someone in Punjab. Statements of Sanjay Kumar (DW1) and the accused (DW2) were recorded in defence.
5. The learned Trial Court held that the accused admitted his signatures on the cheque. He examined the registration clerk to prove the sale deed of the land and the house sold by the accused to the complainant. The plea taken by the accused that he had handed over the blank cheques to the complainant in connection with the LIC policies was not believable, as he had failed to prove any policies ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 4 Neutral Citation No. ( 2024:HHC:8601 ) issued by the complainant in favour of the accused. The accused claimed that he retired from CRPF and was on the duty of the .
Government of India in England and China. The status of the accused would make it difficult to rely upon his version that he had issued a signed blank cheque to the complainant. The cheque carried with it a presumption of consideration and the accused had failed to rebut this presumption by leading satisfactory evidence. The sale deed does not show that any payment was due and the defence of the accused that a cheque was issued for sale consideration was not substantiated. The cheque was dishonoured with an endorsement of 'insufficient funds'. The accused had received the notice but he failed to pay the amount; hence, the accused was convicted of the commission of an offence punishable under Section 138 of the NI Act and he was sentenced to pay a fine of ₹4,50,000/- and in default of payment of fine to further undergo simple imprisonment for one month.
6. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused preferred an appeal, which was decided by learned Sessions Judge, Mandi (learned Appellate Court).
The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the accused had failed to rebut the ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 5 Neutral Citation No. ( 2024:HHC:8601 ) presumption of consideration attached to the cheque. His plea that he had issued the cheques to the complainant towards the payments .
of LIC policy was not proved. The cheque was dishonoured due to insufficient funds and the accused failed to pay the amount despite the receipt of the valid notice of demand. Hence, he was rightly convicted and sentenced by the learned Trial Court and no interference was required with the judgment and order passed by the learned Trial Court. r
7. Being aggrieved from the judgments and order passed by the learned Courts below, the accused has filed the present revision asserting that the learned Courts below failed to properly appreciate the material. The accused had taken a probable defence that the complainant was his tenant, who was the LIC agent. The accused had taken 3-4 policies from the complainant and the complainant obtained blank cheques from the accused for the payment of premium. The accused had sold the land to the complainant and there was no necessity for the accused to borrow any money from the complainant. The accused was a pension holder and he was getting rent from the building/shop. The complainant misused the blank cheques obtained from the accused for the payment of the premium of policies. The sale deed executed in favour of the ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 6 Neutral Citation No. ( 2024:HHC:8601 ) complainant was challenged by the son and daughter-in-law of the accused and the civil suit is pending disposal. The complainant sold .
the land to some other person to defeat the legitimate claim of the accused. The complainant stated that he had paid ₹3,50,000/- to the accused through a cheque but he failed to produce any cheque. The complainant had issued two cheques to the accused; one for the price of the land and another for the needs of the accused. The accused had not issued any cheque in favour of the complainant in the discharge of his legal liability. The version of the accused was made probable by the cross-examination of the complainant. The cheque was given to the complainant as per complaint on 29.08.2017 but the date of the cheque was mentioned as 23.01.2018. The complaint filed by the complainant was time-barred from the date of the issuance of the cheque. The accused had rebutted the presumption arising out of Sections 139 and 118 of the NI Act. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by learned Courts below be set aside.
8. I have heard Mr Jia Lal Thakur, Advocate, vice Mr. G.R. Palsra, learned counsel representing petitioner/accused, Mr Ajay Sharma, learned counsel representing respondent No.1/complainant ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 7 Neutral Citation No. ( 2024:HHC:8601 ) and Mr Prashant Sen, learned Deputy Advocate General for respondent No.2/State.
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9. Mr. Jia Lal Thakur, Advocate, learned counsel representing petitioner/accused submitted that the accused is innocent and he was falsely implicated. The defence taken by him that he had issued the blank cheque towards the payment of LIC premium was highly probable. Learned Courts below erred in rejecting this defence. There was a discrepancy regarding the date of the issuance of the cheque. The plea of the accused that a false complaint was filed when the sale deed executed by the accused in the complainant's favour was challenged is highly probable.
Therefore, he prayed that the present revision be allowed and the judgments and order passed by learned Courts below be set aside.
10. Mr. Ajay Sharma, learned counsel representing respondent No.1/complainant supported the judgments and order passed by learned Courts below. He submitted that there is no discrepancy regarding the date of issuance of the cheque, as the complainant had specifically mentioned that the accused had issued a post-dated cheque. Learned Trial Court had rightly held that the accused was a member of the CRPF, who was awarded gallantry awards and had served abroad. He could not be expected to deal ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 8 Neutral Citation No. ( 2024:HHC:8601 ) lightly with the cheque and his testimony was rightly rejected by learned Courts below. Therefore, he prayed that the present revision .
be dismissed.
11. Mr. Prashant Sen, learned Deputy Advocate General for respondent No.2/state adopted the submissions of Mr. Ajay Sharma, and prayed that the present revision be dismissed.
12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
13. It was laid down by the Hon'ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed on page 207: -
"10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 9 Neutral Citation No. ( 2024:HHC:8601 ) jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of .
the case to reverse those findings.
14. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was observed:
"13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460 where the scope of Section 397 has been considered and succinctly explained as under:
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case.
The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.::: Downloaded on - 17/09/2024 20:30:37 :::CIS 10
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13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an .
interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under the CrPC."
15. The present revision has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
16. The accused admitted in his cross-examination that the cheque (Ext. CW1/A) bore his signature inside the red circle. He also admitted that he had handed over the cheque to the complainant. He stated that complainant Ajay Kumar had his complete cheque book having 3-4 cheques. He had taken LIC policies from the complainant in the year 2017 but he could not produce any copy of the policy. He volunteered to say that all the records were maintained by the complainant. He admitted that the receipts were sent to him by LIC through post. He volunteered to say that the complainant used to keep all the documents with him. He denied that the complainant ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 11 Neutral Citation No. ( 2024:HHC:8601 ) did not have a chequebook with him and that he was making a false statement.
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17. The cross-examination of this witness shows that his plea that he had handed over the signed chequebook to the complainant for payment of LIC receipts has not been established.
He has not produced any LIC policy issued by the complainant. He claimed that all the records were with the complainant. It is difficult to believe this version. As per the accused, the policy was issued in his name and he was to get the money on maturity, therefore, he had no justification to keep the record with the complainant. He claimed that he had handed over the blank signed cheque to the complainant towards the payment of LIC policy but he has not shown any such justification. The premium is a fixed amount and there was no reason to hand over the blank signed cheque. Hence, the learned Courts below had rightly rejected the plea taken by the accused.
18. The accused examined Sanjay Kumar (DW1) to prove the sale deed executed by him in favour of the complainant for a consideration of ₹50,000/-. The relevance of such evidence is not apparent. The accused has not disputed the execution of the sale deed. Even the complainant admitted in his cross-examination that he had purchased half of the share. Thus, the examination of the ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 12 Neutral Citation No. ( 2024:HHC:8601 ) witness will not help in proving the defence that the accused had issued blank cheques to the complainant.
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19. Complainant in his cross-examination admitted that a civil suit was filed by the son and daughter-in-law of the accused against him in February, 2018 and he had filed the complaint in March 2018. This admission will not help the accused. It was never suggested to the complainant that the accused was also a party to the civil suit. He stated that a civil suit was filed by the son and daughter-in-law of the accused; hence, the filing of the complaint would not have pressurized the son and daughter-in-law, who had filed the suit adverse to the interest of the accused.
20. It was submitted that the complainant stated in his cross-examination that the cheque was handed over to him on 29.08.2017 which is contrary to the record, as the cheque is dated 23.01.2018. The complainant specifically stated in Para 1 of his proof affidavit (Ext. CW1/A) that the accused had handed over a post-dated cheque to him on 29.08.2017 bearing the date 23.01.2018 for ₹3,50,000/-. Thus, the complainant was quite categorical in mentioning the date of handing over of the cheque as 29.08.2017 and he explained that the cheque was post-dated. Thus, there is no ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 13 Neutral Citation No. ( 2024:HHC:8601 ) discrepancy between the complaint, proof affidavit and the cross-
examination of the complainant.
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21. The accused claimed that the complainant had misused the cheque handed over to him. He has not shown that he has taken any steps to stop the misuse. He has not stated that he wrote any letter to the bank asking it to stop the payment or any complaint to the police regarding the misuse of the cheque. Learned Trial Court had rightly held that the accused claimed himself to be a member of the CRPF, who had received the Gallantry Awards from the President and served in China and England. He was not an illiterate person who would hand over a blank signed cheque to someone. He had travelled extensively and would have been aware of the significance of the blank signed cheque. Hence, the learned Trial Court had rightly rejected the version of the accused that he had handed over blank signed cheques to the complainant.
22. Learned Courts below had rightly held that once the signatures on the blank cheque were not disputed, a presumption of consideration would arise. It was laid down by this Court in Naresh Verma vs. Narinder Chauhan 2020(1) Shim. L.C. 398 that where the accused had not disputed his signatures on the cheque, the Court has to presume that it was issued in discharge of legal liability and the ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 14 Neutral Citation No. ( 2024:HHC:8601 ) burden would shift upon the accused to rebut the presumption. It was observed: -
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"8. Once signatures on the cheque are not disputed, the plea with regard to the cheque having not been issued towards discharge of lawful liability, rightly came to be rejected by learned Courts below. Reliance is placed upon Hiten P. Dalal v. Bartender NathBannerji, 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......"
9. 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 nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
23. Similar is the judgment in Basalingappa vs. Mudibasappa 2019 (5) SCC 418 wherein it was held:
"26. Applying the proposition of law as noted above, in the facts of the present case, it is clear that the signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability."::: Downloaded on - 17/09/2024 20:30:37 :::CIS 15
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24. This position was reiterated in Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25 : (2021) 2 .
SCC (Cri) 555: 2021 SCC OnLine SC 75wherein it was held at page 289:
"13. Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these "reverse onus" clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystallised by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat [Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106, para 18: (2020) 3 SCC (Civ) 800 : (2020) 3 SCC (Cri) 575] in the following words : (SCC pp. 120-21, para 18) "18. 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 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 appellant-accused."
14. Once the 2nd appellant had admitted his signatures on the cheque and the deed, the trial court ought to have presumed that the cheque was issued as consideration for a legally ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 16 Neutral Citation No. ( 2024:HHC:8601 ) enforceable debt. The trial court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the trial court was directly in the teeth of the .
established legal position as discussed above, and amounts to a patent error of law."
25. Similar is the judgment in APS Forex Services (P) Ltd. v.
Shakti International Fashion Linkers (2020) 12 SCC 724, wherein it was observed: -
7.2. What is emerging from the material on record is that the issuance of a cheque by the accused and the signature of the accused on the said cheque are not disputed by the accused.
The accused has also not disputed that there were transactions between the parties. Even as per the statement of the accused, which was recorded at the time of the framing of the charge, he has admitted that some amount was due and payable. However, it was the case on behalf of the accused that the cheque was given by way of security and the same has been misused by the complainant. However, nothing is on record that in the reply to the statutory notice it was the case on behalf of the accused that the cheque was given by way of security. Be that as it may, however, it is required to be noted that earlier the accused issued cheques which came to be dishonoured on the ground of "insufficient funds" and thereafter a fresh consolidated cheque of ₹9,55,574 was given which has been returned unpaid on the ground of " STOP PAYMENT". Therefore, the cheque in question was issued for the second time. Therefore, once the accused has admitted the issuance of a cheque which bears his signature, there is a presumption that there exists a legally enforceable debt or liability under Section 139 of the NI Act. However, such a presumption is rebuttable in nature and the accused is required to lead the evidence to rebut such presumption. The accused was required to lead evidence that the entire amount due and payable to the complainant was paid.
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9. Coming back to the facts in the present case and considering the fact that the accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time after the earlier .
cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the NI Act that there exists a legally enforceable debt or liability. Of course, such presumption is rebuttable in nature. However, to rebut the presumption, the accused was required to lead the evidence that the full amount due and payable to the complainant had been paid. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in the absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time after the earlier cheques were dishonoured.
Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the NI Act. It appears that both, the learned trial court as well as the High Court, have committed an error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139 of the NI Act.
As observed above, Section 139 of the Act is an example of reverse onus clause and therefore, once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter, it is for the accused to rebut such presumption by leading evidence.
26. Learned Courts below had rightly held that there is a presumption under Section 139 of the N.I. Act that the cheque was issued in the discharge of the legal liability. This presumption was explained by the Hon'ble Supreme Court in Triyambak S. Hegde v.
::: Downloaded on - 17/09/2024 20:30:37 :::CIS 18Neutral Citation No. ( 2024:HHC:8601 ) Sripad, (2022) 1 SCC 742: (2022) 1 SCC (Civ) 512: 2021 SCC OnLine SC 788 as under at page 747:
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"12. From the facts arising in this case and the nature of the rival contentions, the record would disclose that the signature on the documents at Exts. P-6 and P-2 are not disputed. Ext.
P-2 is the dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be the position, as noted by the courts below a presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. Section 139 of the NI Act reads as hereunder:
"139. Presumption in favour of holder. --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."
13. Insofar as the payment of the amount by the appellant in the context of the cheque having been signed by the respondent, the presumption for passing of the consideration would arise as provided under Section 118(a) of the NI Act which reads as hereunder:
"118. Presumptions as to negotiable instruments. --Until the contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
14. The above-noted provisions are explicit to the effect that such presumption would remain until the contrary is proved. The learned counsel for the appellant in that regard has relied on the decision of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan [K. Bhaskaran v. Sankaran Vaidhyan Balan, ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 19 Neutral Citation No. ( 2024:HHC:8601 ) (1999) 7 SCC 510: 1999 SCC (Cri) 1284] wherein it is held as hereunder: (SCC pp. 516-17, para 9) "9. As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of .
the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The trial court was not persuaded to rely on the interested testimony of DW 1 to rebut the presumption. The said finding was upheld [Sankaran Vaidhyan Balan v. K. Bhaskaran, Criminal Appeal No. 234 of 1995, order dated 23-10-1998 (Ker)] by the High Court. It is not now open to the accused to contend differently on that aspect."
15. The learned counsel for the respondent has however referred to the decision of this Court in Basalingappa v. Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571] wherein it is held as hereunder: (SCC pp. 432-33, paras 25-26) "25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of the cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. 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.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 20 Neutral Citation No. ( 2024:HHC:8601 ) 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.
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25.4. 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.
25.5. It is not necessary for the accused to come in the witness box to support his defence.
26. Applying the preposition of law as noted above, in facts of the present case, it is clear that the signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the 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 PW 1, when the specific question was put that a cheque was issued in relation to a loan of Rs 25,000 taken by the accused, PW 1 said that he does not remember. PW 1 in his evidence admitted that he retired in 1997 on which date he received a monetary benefit of Rs 8 lakhs, which was encashed by the complainant. It was also brought in 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 Ext. D-2, there was a burden on the complainant to prove his financial capacity. In the years 2010-2011, as per own case of the complainant, he made a payment of Rs 18 lakhs. During his cross-examination, when the financial 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."::: Downloaded on - 17/09/2024 20:30:37 :::CIS 21
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16. In that light, it is contended that the very materials produced by the appellant and the answers relating to lack of knowledge of property details by PW 1 in his cross- examination would indicate that the transaction is doubtful .
and no evidence is tendered to indicate that the amount was paid. In such an event, it was not necessary for the respondent to tender rebuttal evidence but the case put forth would be sufficient to indicate that the respondent has successfully rebutted the presumption.
17. On the position of law, the provisions referred to in Sections 118 and 139 of the NI Act as also the enunciation of law as made by this Court need no reiteration as there is no ambiguity whatsoever. In, Basalingappav. Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571] relied on by the learned counsel for the respondent, though on facts the ultimate conclusion therein was against raising presumption, the facts and circumstances are entirely different as the transaction between the parties as claimed in the said case is peculiar to the facts of that case where the consideration claimed to have been paid did not find favour with the Court keeping in view the various transactions and extent of amount involved. However, the legal position relating to the presumption arising under Sections 118 and 139 of the NI Act on signature being admitted has been reiterated. Hence, whether there is a rebuttal or not would depend on the facts and circumstances of each case."
27. This position was reiterated in Tedhi Singh v. Narayan Dass Mahant, (2022) 6 SCC 735: (2022) 2 SCC (Cri) 726 : (2022) 3 SCC (Civ) 442: 2022 SCC OnLine SC 302 wherein it was held at page 739:
"8. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the NI Act provides that the court shall presume 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. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 22 Neutral Citation No. ( 2024:HHC:8601 ) open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of "probable defence" has grown. In an earlier judgment, in fact, which has also been adverted to in Basalingappa [Basalingappa .
v. Mudibasappa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571], this Court notes that Section 139 of the NI Act is an example of reverse onus (see Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184]). It is also true that this Court has found that the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence.
As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist..."
28. Similar is the judgment in P. Rasiya v. Abdul Nazer, 2022 SCC OnLine SC 1131 wherein it was observed:
"As per Section 139 of the N.I. Act, 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 discharge, in whole or in part, of any debt or other liability.
Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque are not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary."::: Downloaded on - 17/09/2024 20:30:37 :::CIS 23
Neutral Citation No. ( 2024:HHC:8601 )
29. This position was reiterated in Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148: 2023 SCC OnLine SC 1275 wherein it was observed .
at page 161:
33. The NI Act provides for two presumptions: Section 118 and Section 139. 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". It will be seen that the "presumed fact"
directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated-- reference to one can be taken as reference to another]
34. Section 139 of the NI Act, which takes the form of a "shall presume" clause is illustrative of a presumption of law. Because Section 139 requires that the Court "shall presume"
the fact stated therein, it is obligatory for the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase "unless the contrary is proved".
35. The Court will necessarily presume that the cheque had been issued towards the discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that the cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35]] ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 24 Neutral Citation No. ( 2024:HHC:8601 )
36. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh .
Kumar [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40] ]. Therefore, the mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
37. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
38. John Henry Wigmore [John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law] on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule'."
39. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non-existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of "preponderance of probabilities", similar to a defendant in a civil proceeding. [Rangappa v. Sri ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 25 Neutral Citation No. ( 2024:HHC:8601 ) Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184: AIR 2010 SC 1898]]"
30. Therefore, the Court has to start with the presumption .
that the cheque was issued in discharge of legal liability and the burden is upon the accused to prove the contrary.
31. The statement of the accused was insufficient to rebut the presumption. There is nothing in the cross-examination of the complainant to show that the cheque was issued without consideration. The complainant categorically denied that blank cheques were handed over to him in connection with the LIC policies and a denied suggestion does not amount to any proof. Thus, the learned Courts below had rightly held that the presumption was not rebutted.
32. It was submitted that the complainant admitted in his cross-examination that he was an income tax payee and had shown the loan in his income tax return. The complainant failed to prove the income tax returns and an adverse inference should have been drawn against the complainant. This submission cannot be accepted.
It was laid down in Uttam Ram v. Devinder Singh Hudan, (2019) 10 SCC 287: (2020) 1 SCC (Cri) 154: (2020) 1 SCC (Civ) 126: 2019 SCC OnLine SC 1361that the cheque carries a presumption of consideration and the ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 26 Neutral Citation No. ( 2024:HHC:8601 ) complainant is not required to prove the existence of consideration.
It was observed at page 293:
.
"19. A negotiable instrument including a cheque carries a presumption of consideration in terms of Section 118(a) and under Section 139 of the Act. Sections 118(a) and 139 read as under:
"118. Presumptions as to negotiable instruments. --Until the contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
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139. Presumption in favour of holder. --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."
20. The trial court and the High Court proceeded as if, the appellant is to prove a debt before civil court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of a cheque carries a statutory presumption of consideration. The holder of the cheque in due course is required to prove that the cheque was issued by the accused and that when the same presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability.
21. There is the mandate of presumption of consideration in terms of the provisions of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 27 Neutral Citation No. ( 2024:HHC:8601 ) any debt or liability in terms of Section 138 of the Act which 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, ..."
22. In Kumar Exports [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513: (2009) 1 SCC (Civ) 629: (2009) 1 SCC (Cri) 823], it was held that mere denial of the existence of debt will not serve any purpose but the accused may adduce evidence to rebut the presumption. This Court held as under: (SCC pp. 520-21, para
20) "20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 28 Neutral Citation No. ( 2024:HHC:8601 ) getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did .
not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act."
(emphasis supplied)
23. In the judgment Kishan Rao v. Shankargouda [Kishan Rao v. Shankargouda, (2018) 8 SCC 165 : (2018) 4 SCC (Civ) 37 :
(2018) 3 SCC (Cri) 544], this Court referring to Kumar Exports [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 :
(2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] and Rangappa [Rangappa v. Sri Mohan, (2010) 11 SCC 441 :
(2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] returned the following findings : (Kishan Rao case [Kishan Rao v. Shankargouda, (2018) 8 SCC 165 : (2018) 4 SCC (Civ) 37 : (2018) 3 SCC (Cri) 544], SCC pp. 173-74, para 22) "22. Another judgment which needs to be looked into is Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184]. A three-judge Bench of this Court had occasion to examine the presumption under Section 139 of the 1881 Act. This Court in the aforesaid case has held that in the event the accused is able to raise a probable defence which creates doubt with regard to the existence of a debt or liability, the presumption may fail. The following was laid down in paras 26 and 27: (SCC pp. 453-54) '26. In light of these extracts, we are in agreement with the respondent claimant that the presumption ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 29 Neutral Citation No. ( 2024:HHC:8601 ) mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [Krishna Janardhan Bhat v. Dattatraya G. .
Hegde, (2008) 4 SCC 54: (2008) 2 SCC (Cri) 166] may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested.
However, there can be no doubt that there is an initial presumption which favours the complainant.
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 test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof.'"
24. In the judgment Bir Singh v. Mukesh Kumar [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40], this Court held that presumption under Section 139 of the Act is a presumption of law. The Court held as under: (SCC pp. 206 & 208-09, paras 20, 33 & 36) "20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 30 Neutral Citation No. ( 2024:HHC:8601 ) Negotiable Instruments Act is a presumption of law, as distinguished from a presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution .
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 and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16: 2001 SCC (Cri) 960].
***
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.
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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."
25. In other judgment Rohitbhai Jivanlal Patel v. State of Gujarat [Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106: 2019 SCC OnLine SC 389: AIR 2019 SC 1876] this Court held as under: (SCC paras 15, 17 and 22) "15. So far the question of the existence of basic ingredients for drawing of presumption under Sections 118 and 139 of the NI Act is concerned, apparent it is that the appellant-
::: Downloaded on - 17/09/2024 20:30:37 :::CIS 31Neutral Citation No. ( 2024:HHC:8601 ) accused could not deny his signature on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of Rs 3 lakhs each. The said cheques were presented to the .
bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The trial court had also consciously taken note of these facts and had drawn the requisite presumption. Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the appellant-accused to establish a probable defence so as to rebut such a presumption.
***
17. On the aspects relating to a preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasised that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under Sections 118 and 139 of the NI Act....
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22. The result of the discussion in the foregoing paragraphs is that the major considerations on which the trial court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond a reasonable doubt. Such being the fundamental flaw on the part of the trial court, the High Court [Shashi Mohan Goyanka v. State of Gujarat, 2018 SCC OnLine Guj ::: Downloaded on - 17/09/2024 20:30:37 :::CIS 32 Neutral Citation No. ( 2024:HHC:8601 ) 3674] cannot be said to have acted illegally or having exceeded its jurisdiction in reversing the judgment of acquittal. As noticed hereinabove, in the present matter, the High Court has conscientiously and carefully taken into .
consideration the views of the trial court and after examining the evidence on the record as a whole, found that the findings of the trial court are vitiated by perversity. Hence, interference by the High Court was inevitable;
rather had to be made for a just and proper decision of the matter."
33. Therefore, the complainant was not required to prove the income tax return as a presumption existed in favour of the complainant rather the accused was required to rebut the presumption. Thus, no advantage can be derived from this admission by the accused.
34. Bhup Singh (CW2) stated that the cheque was received in the Bank for presentation but there were insufficient funds and the cheque was dishonoured and returned to the complainant. He stated in his cross-examination that he had not issued the memo of dishonour. It was issued by the authorized officer.
35. The admission of this witness that accused did not have sufficient money in his account was not challenged in his cross-
examination. Therefore, the same has gone unrebutted and learned Courts below had rightly held that the cheque was dishonoured due to insufficient funds.
::: Downloaded on - 17/09/2024 20:30:37 :::CIS 33Neutral Citation No. ( 2024:HHC:8601 )
36. The accused admitted that he had received a notice. He had sent a reply (Ext. CW1/F) to the notice, which shows the receipt .
of the notice by the accused. The accused has not paid any amount and he stated in his statement recorded under Section 313 of Cr.P.C.
that he was not liable to pay any amount. Thus, the requirement that the accused had not paid the money despite the receipt of the valid notice of demand has also been satisfied.
37. Thus, the learned Courts below had rightly held that the cheque was issued in discharge of the legal liability, it was dishonoured due to insufficient funds and the accused had failed to pay the amount despite the receipt of the valid notice of demand;
hence, all the ingredients of Section 138 of NI Act were satisfied and learned Trial Court had rightly convicted the accused for the commission of offence punishable under Section 138 of NI Act.
38. The learned Trial Court had sentenced the accused to undergo simple imprisonment for six months. The legislature had introduced the offence of dishonour of cheques to instil confidence in the public about the transactions carried with the cheque. It was laid down by the Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309:
::: Downloaded on - 17/09/2024 20:30:37 :::CIS 34Neutral Citation No. ( 2024:HHC:8601 ) 2019 SCC OnLine SC 138 that the penal provision of Section 138 is a deterrent in nature. It was observed at page 203:
.
"6. The object of Section 138 of the Negotiable Instruments Act is to infuse credibility into negotiable instruments including cheques and to encourage and promote the use of negotiable instruments including cheques in financial transactions. The penal provision of Section 138 of the Negotiable Instruments Act is intended to be a deterrent to callous issuance of negotiable instruments such as cheques without serious intention to honour the promise implicit in the issuance of the same."
39. In view of this, the sentence of six months is not excessive.
40. Learned Trial Court had also imposed a fine of ₹4,50,000/- and ordered the payment of the fine to the complainant.
The cheque bears the date 23.01.2018. The order was pronounced on 08.05.2023 after a lapse of nearly five years. The complainant lost interest on the amount and he had to pay the litigation expenses for filing the complaint. He was entitled to be compensated for the same. It was laid down by the Hon'ble Supreme Court in Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25:
(2021) 2 SCC (Cri) 555: 2021 SCC OnLine SC 75 that the Courts should uniformly levy a fine up to twice the cheque amount along with simple interest at the rate of 9% per annum. It was observed at page 291: -::: Downloaded on - 17/09/2024 20:30:37 :::CIS 35
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19. As regards the claim of compensation raised on behalf of the respondent, we are conscious of the settled principles that the object of Chapter XVII of NIA is not only punitive but also compensatory and restitutive. The provisions of NIA envision .
a single window for criminal liability for the dishonour of a cheque as well as civil liability for the realisation of the cheque amount. It is also well settled that there needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the courts should uniformly levy fines up to twice the cheque amount along with simple interest @ 9% p.a. [R. Vijayan v. Baby, (2012) 1 SCC 260, para 20: (2012) 1 SCC (Civ) 79: (2012) 1 SCC (Cri) 520]"
41.
42. to Therefore, the amount of ₹ 4,50,000/- is not excessive.
No other point was urged.
43. In view of the above, there is no infirmity in the judgments and the order passed by learned Courts below and no interference is required with them.
44. Consequently, the present petition fails and the same is dismissed. Records of the learned Courts below be sent back forthwith.
(Rakesh Kainthla) Judge 16th September, 2024.
(saurav pathania) ::: Downloaded on - 17/09/2024 20:30:37 :::CIS