Ashok Kumar vs Mathia Ram on 20 May, 2019

[Cites 20, Cited by 0]

Himachal Pradesh High Court

Ashok Kumar vs Mathia Ram on 20 May, 2019

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                 Cr. Appeal No.3 of 2019




                                                                           .
                                 Decided on: 20.05.2019





Ashok Kumar                                           .....Appellant/Complainant





                              Versus

Mathia Ram                                              ......Respondent/Accused





Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 NO.


For the Appellant:                    Mr. Rupinder Singh Thakur, Advocate.

For the Respondent:                   Mr. Kulwant Singh, Advocate.



Tarlok Singh Chauhan, Judge (Oral)

The appellant is the complainant, who aggrieved by the order of acquittal passed by the learned Judicial Magistrate Ist Class, Rajgarh (Camp at Sarhan) District Sirmaur, H.P. on 28.09.2018 in a complaint under Section 138 of the Negotiable Instruments Act (for short the 'Act'), has filed the instant appeal.

2. Taking into consideration the nature of the order I propose to pass, it is not necessary to delve into the facts in detail save and except that in the complaint filed by the appellant it was averred that the complainant had to recover Rs.50,000/ (Rupees Fifty Thousand) from the respondent/accused and in order to discharge his liability, the 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 22/05/2019 21:56:53 :::HCHP 2 respondent/accused had issued a cheque, which was dishonoured for 'insufficient funds'. The complainant sent legal notice on 29.09.2015, .

however, despite service thereof, the respondent/accused failed to repay the cheque amount, constraining the complainant to file the complaint under Section 138 of the Act.

3 On the basis of preliminary evidence led by the complainant, the respondent/accused was summoned and claimed trial by pleading not guilty.

4. The complainant examined himself as CW3, Khem Raj as CW 1 and Shyam Singh as CW2 and tendered certain documents in his evidence. Thereafter, the statement of the respondent/accused under Section 313 Cr.P.C. was recorded wherein he denied the entire case of the complainant and thereafter closed his evidence.

5. As observed above, the learned trial Magistrate dismissed the complaint and acquitted the respondent/accused of the charge under Section 138 of the Act, constraining the complainant to file the instant appeal.

6. It is vehemently argued by Mr. Rupinder Singh Thakur, learned counsel for the appellant, that the findings recorded by the learned trial Magistrate are perverse and, therefore, deserve to be setaside. Whereas, on the other hand, Mr. Kulwant Singh, learned counsel for the respondent/accused would contend that the order of acquittal as passed by the learned Court below is based on correct appreciation of the complaint ::: Downloaded on - 22/05/2019 21:56:53 :::HCHP 3 as also the oral and documentary evidence led on the record and, therefore, the order warrants no interference by this Court.

7. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

8. A perusal of the impugned order would reveal that the learned trial Magistrate after referring to the oral and documentary evidence on record in paras 12 to 15 have observed as under:

"12. Explaining as to how an accused may discharge the presumption raised against him under Sections 118(a) and 139 of the Act, it was observed by Hon'ble Supreme Court of India that the court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that it did not exist.

"13.To disprove the aforesaid presumptions raised against him the accused has relied upon the crossexamination of the complainant. The complainant was subjected through lengthy crossexamination. In his crossexamination, the complainant has testified that the accused is known to him for the last 56 years and that he met the accused for the first time at Sarahan.

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The complainant is unware of the father's name of the complainant and also about his family members. The complainant further testified that the accused has requested him .

to lend money on 06.09.2015 and he gave the money at about 67 p.m. of the same day. He maintained that the accused had come alone and that the reason given by the accused for borrowing money was to repay money borrowed by the accused. The complainant further maintained that the money was borrowed by the accused for only one day and had assured to repay on the next day. The complainant further testified that the impugned cheque was given to him on the very same day. He then testified that the accused had assured him that he will have money in his account on the next day. He further testified that he was told by the accused that the accused had to return someone's money on the next day.

"14. If the crossexamination of the complainant is seen then he testified that the money was lent by him to the accused on 06.09.2015. It is pertinent to mention here that the complainant, in his complaint, has no where mentioned the date of advance of friendly loan to the accused and rather it only finds mention that he has to recover a sum of Rs.50,000/ from the accused. How be became entitled to recover this amount was nowhere explained by him in his complaint. Even the date of negotiation of the cheque was not mentioned in the complaint and hence it is to be presumed that the impugned cheque was negotiated on the date which is mentioned on it i.e. 06.09.2015. As per the complainant the accused borrowed the aforesaid amount as he had to repay money which he had borrowed from someone else. The complainant further maintained that the money was borrowed for only one day and at one point he testified that the accused had told him that he had to make repayment on the ::: Downloaded on - 22/05/2019 21:56:53 :::HCHP 5 next day. It is also the testimony of the complainant that he was assured by the accused that he shall have money in his account on the next day.

.

"15. If the accused borrowed money to repay someone else on the next day and has assured the complainant that he would have adequate amount in his account on the next day; then why would he choose to borrow money from the complainant? If the amount of rs.50,000/ was to be available in his account on the very next day, which is also the day on which he was to repay someone else, then why would the accused not withdraw money from his account and make the repayment to someone else. Why would the accused firstly borrow money from the complainant for one day to repay someone else's money on the next day when the cheque amount to be available in his account on the next day itself? This casts serious doubt on the complainant's story. It is therefore difficult to believe that the impugned cheque was negotiated towards discharge of a lawful debt.

9. Somewhat similar observations can be found in para 17 and the same read as under:

"17. The circumstances putforth by the complainant, wherein the impugned cheque came to be negotiated by the accused, do not appear to be logical. The accused, through the crossexamination of the complainant, has successfully shown that the passing of consideration qua the impugned cheque was so improbable that a prudent man would believe the absence of consideration to be reasonably probable. The accused thus successfully rebutted the statutory presumptions raised against him. Hence the point under consideration is decided in negative.

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10. Apparently, even though the learned trial Magistrate has quoted Sections 118(a) and 139 of the Act but has not at all kept in mind .

the presumptions by virtue of these Sections, which reads 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;

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."

11. Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act No. 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring the commitments by way of payment through cheques. It is for this reason that the Courts should lean in favour of an interpretation which serves the object of the statue.

12. In M.S. Narayana Menon alias Mani vs. State of Kerala and another (2006) 6 SCC 39, the Hon'ble Supreme Court while dealing with a case under Section 138 of the Act held that the presumption under Sections 118(a) and 139 were rebuttable and the standard of proof required ::: Downloaded on - 22/05/2019 21:56:53 :::HCHP 7 for such rebuttal was "preponderance of probability" and not proof "proved beyond reasonable doubt" and it was held as under: .

"29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words 'proved' and 'disproved' have been defined in Section 3 of the Evidence Act (the interpretation clause)....

30.Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.

* * *

32.The standard of proof evidently is preponderance of probabilities.

Inference of preponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies.

41.....'23......Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man"."

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13. Similar reiteration of law can be found in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 wherein it was observed as under: .

"13. The Act raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature......

14. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability."

14. To the same effect is the decision of the Hon'ble Supreme Court in Krishna Janardhan Bhat vs. Dattatraya G. Hegde (2008) 4 SCC 54 wherein the Hon'ble Supreme Court observed as under: "32.....Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.

* * *

34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities......

* * *

45..... Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced........"

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15. Earlier to that the Hon'ble Supreme Court in Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16, compared the evidentiary .

presumptions in favour of the prosecution with the presumption of innocence in the following terms: "22.....Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged 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 or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact.

23. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary......."

16. Section 139 of the Act provides for drawing a presumption in favour of the holder and the Hon'ble Supreme Court in Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513 has considered the provisions of the Act as well as Evidence Act and observed as under: "14. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.

15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no ::: Downloaded on - 22/05/2019 21:56:53 :::HCHP 10 evidence or insufficient evidence. Under the Indian Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume" (rebuttable), .

(2) "shall presume" (rebuttable) and (3) "conclusive presumptions"

(irrebuttable). The term `presumption' is used to designate an inference, affirmative or disaffirmative of the existence a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means "taking as true without examination or proof".

* * *

18. Applying the definition of the word `proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.

19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and ::: Downloaded on - 22/05/2019 21:56:53 :::HCHP 11 "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that .

the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over."

17. The Hon'ble Supreme Court thereafter held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose.

18. In Rangappa vs. Sri Mohan, (2010) 11 SCC 441, Hon'ble three Judges Bench of the Hon'ble Supreme Court had occasion to examine the presumption under Section 139 of the Act and it was 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. It is apposite to refer to the relevant observations which read as under: "26. In light of these extracts, we are in agreement with the respondentclaimant that the presumption 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 v. Dattatraya G.Hegde (2008) 4 SCC 54 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 ::: Downloaded on - 22/05/2019 21:56:53 :::HCHP 12 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 accused/defendant cannot be expected to discharge an unduly high standard of proof."

19. In T.P. Murugan vs. Bojan (2018) 8 SCC 469, the Hon'ble Supreme Court has held that once a cheque has been signed and issued in favour of holder of cheque, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability, but at the same time, it was also held that this presumption is rebuttable one and the issuer of cheque can rebut that presumption by adducing credible evidence that the cheque was issued for some other purpose like security for loan etc.

20. Similar reiteration of law can be found in a very recent judgment of the Hon'ble Supreme Court in Basalingappa vs. Mudibasappa, 2019 (2) Civil Court Cases 518.

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21. Bearing in mind the aforesaid exposition of law, it can conveniently be held that in terms of Section 4 of the Evidence Act .

whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words "proved" and "disproved" have been defined in Section 3 of the Evidence Act.

22. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.

23. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the ::: Downloaded on - 22/05/2019 21:56:53 :::HCHP 14 defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.

24. Bearing in mind the aforesaid exposition of law, it is clearly evident that the learned trial Magistrate has failed to take into consideration the fact that once a cheque has been signed and issued in favour of the holder, there is a statutory presumption that it is issued in discharge of legally enforceable debt or liability. This presumption, of course, is rebuttable one if the issuer of the cheque is able to discharge the burden that it was issued for any other purpose like security of loan.

25. Section 139 of the Act is a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. 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 nonexistence 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 nonexistence of consideration and debt by leading direct evidence because the existence of negative ::: Downloaded on - 22/05/2019 21:56:53 :::HCHP 15 evidence is neither possible nor contemplated. However, 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 by the accused in order to get the burden of proof shifted on 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 nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.

26. In view of the presumptions attached by virtue of Sections 118 and 139 of the Act, the Court was required to draw a presumption that the cheque was issued for consideration and until the consideration was proved, some presumption would hold good. Therefore, in the given circumstances, the learned trial Magistrate has clearly fallen in error, in not being aware of the presumption attached to Negotiable Instruments Act by virtue of Sections 118 and 139 of the Act and has, therefore, erred in placing the initial onus on the complainant rather than placing the same on the accused/ respondent.

27. In this view of the matter, this Court need not express any opinion on the merits of the case or the same may prejudice any of the parties. Therefore, in the given circumstances, this Court has no other option but to setaside the order of acquittal passed by learned trial ::: Downloaded on - 22/05/2019 21:56:53 :::HCHP 16 Magistrate and direct it to rehear the matter bearing in mind the provisions, more particularly, those contained in Sections 118 and 139 of .

the Act.

28. Accordingly, I find merit in this appeal and the order passed by learned trial Magistrate on 28.09.2018 in Criminal Case No. 27/3 of 2015 is setaside and the trial Court is directed to decide the same afresh in accordance with law and bearing in mind the observations made hereinabove.

29. The parties through their counsel(s) are directed to appear before the learned trial Magistrate on 10.06.2019.

30. The appeal is disposed of in the aforesaid terms, so also the pending application(s), if any.

(Tarlok Singh Chauhan) 20 May, 2019.

th Judge (sanjeev) ::: Downloaded on - 22/05/2019 21:56:53 :::HCHP

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