Madras High Court
R.Soundararajan vs Ramasamy on 27 February, 2020
Author: R.Mahadevan
Bench: R.Mahadevan
Crl.R.C.No.549 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.02.2020
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
Crl.R.C.No.549 of 2016
R.Soundararajan .. Petitioner
Vs
Ramasamy .. Respondent
Prayer:- Criminal Revision Case filed under Section 397 read with
401 of Cr.P.C. praying to set aside the Judgment and sentence
passed against the petitioner/accused in Crl.A.No.39 of 2015 dated
26.02.2016 on the file of the I Additional Sessions Judge,
Thiruvallur confirming the judgment and sentence passed by the
learned Fast Tract Court Judge at Magisterial Level, Thiruvallur in
S.T.C.No.5 of 2014 dated 10.04.2015.
For Petitioner : Mr.A.R.Suresh
For Respondent : Mr.R.Karthikeyan
ORDER
The revision petitioner is the accused in S.T.C.No.5 of 2014 on the file of the learned Fast Track Court at Magisterial Level, http://www.judis.nic.in 1/16 Crl.R.C.No.549 of 2016 Tiruvallur and he was convicted for an offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one year and to pay the cheque amount of Rs.15,00,000/- as compensation to the complainant under section 357 (3) Cr.P.C within a period of one month, in default to undergo simple imprisonment for a further period of 3 months. Aggrieved over the same, the petitioner preferred a Criminal Appeal before the learned I Additional Sessions Judge, Thiruvallur in Crl.A.No.39/2015, which ended in dismissal, by judgment dated 26.02.2016. Challenging the same, the petitioner has filed this Criminal Revision Case.
2.The learned counsel for the petitioner submitted that at no point of time, the petitioner has obtained a loan of Rs.15,00,000/- from the respondent/complainant and the cheque-in-question has been given only as a security for the previous business transaction. The learned counsel further submitted that the trial Court has misconstrued the facts and recorded the findings that the petitioner committed the offence punishable under Section 138 of the Negotiable Instruments Act, which is contrary in the eye of law. The learned counsel also submitted that the respondent/ complainant has failed to establish that there was a legally existing liability/debt http://www.judis.nic.in 2/16 Crl.R.C.No.549 of 2016 against the petitioner/accused. Stating so, the learned counsel prayed to set aside the judgments passed by the Courts below.
3.The learned counsel for the respondent submitted that the trial Court has correctly considered the materials and evidence and has passed the impugned judgment and the findings of the trial Court have been rightly confirmed by the Appellate Court and hence, the judgments of the Courts below do not require any interference in the hands of this Court.
4.Heard the learned counsel appearing for the parties and also perused the materials available on record including the judgments of the Courts below.
5.According to the respondent /complainant, the petitioner/accused is doing the business in the name and style of R.S.Steel Traders. On that basis, the parties are known to each other for more than five years. Due to the said friendship, the petitioner availed hand loan from the respondent on several occasions and promptly repaid the same. Accordingly, on 16.01.2014, the petitioner availed a hand loan of Rs.15,00,000/- and in consideration of the said amount, he issued a cheque bearing http://www.judis.nic.in 3/16 Crl.R.C.No.549 of 2016 No.340135 dated 21.02.2014 drawn on Syndicate Bank, Pattabiram Branch. The respondent presented the said cheque for collection and the same was returned dishonoured due to insufficient funds. Thereafter, he issued a statutory notice on 14.05.2014. On receipt of the same, the petitioner sent a reply denying the allegations made therein. Stating that the petitioner has issued the cheque knowing fully well that there was no sufficient funds in his account to honour the same and failed to repay the amount borrowed and thereby committed the offence punishable under Section 138 of the Negotiable Instruments Act, the respondent has preferred the private complaint, which culminated in STC No.5 of 2014. To substantiate his case, he examined himself as PW1 and marked Exs.P1 to P5 documents.
6.In order to determine whether the offence punishable under Section 138 Negotiable Instruments Act, 1881 is made out against the petitioner/accused in the instant case, it would be necessary to first delve upon Sections 118 and 139 of the Negotiable Instruments Act, 1881 which deal with the subject of 'presumptions' that are to be raised in deciding the liability of the accused under Section 138 Negotiable Instruments Act. Section 118 of the Act deals with the presumption with respect to http://www.judis.nic.in 4/16 Crl.R.C.No.549 of 2016 consideration to be raised until the contrary is proved. Relevant portion of Section 118 is read as under:-
“Section 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;” Section 139 of the Act provides for presumption in favour of the holder and reads as under:
“Section 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.”
7.While discussing the scope and ambit of the above two provisions, the Apex Court in Kumar Exports v. Sharma Carpets, [AIR 2009 SC 1518] observed in Para 11 as under:
''11. 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 "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 http://www.judis.nic.in 5/16 Crl.R.C.No.549 of 2016 the real fact is not as presumed, the purpose of the presumption is over. 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 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. The accused has also an option to prove the non-existence of consideration and debt or liability http://www.judis.nic.in 6/16 Crl.R.C.No.549 of 2016 either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.”
8.The aforesaid legal position has been reiterated by the Apex Court in a case of Vijay v. Laxman and Another [(2013) 3 SCC 86], wherein, while appreciating various judgments on this issue, it was observed as follows:
''19. ...We are not unmindful of the fact that there is a presumption that the issue of a cheque is for consideration. Sections 118 and 139 of the Negotiable Instruments Act make that abundantly clear. That presumption is, however, rebuttable in nature. What is most important is that the standard of proof required for rebutting any such presumption is not as high as that required of the prosecution. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. Whether or not it is so in a given case depends upon the facts and circumstances of that case. It is trite that the courts can take into consideration the circumstances appearing in the evidence to determine whether the presumption should be held to be sufficiently rebutted. The legal position regarding the standard of proof required for rebutting a presumption is fairly well settled by a long line of decisions of this Court.
http://www.judis.nic.in 7/16 Crl.R.C.No.549 of 2016
20. In M.S. Narayana Menon v. State of Kerala (2006) 6 SCC 39, while dealing with that aspect in a case under Section 138 of the Negotiable Instruments Act, 1881, it was held that the presumptions under Sections 118(a) and 139 of the Act are rebuttable and the standard of proof required for such rebuttal is preponderance of probabilities and not proof beyond reasonable doubt.
The Court observed:
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 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 non-
existence 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.
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32. 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.
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41. ... 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'.
21. The decision in M.S. Narayana Menon (supra) was relied upon in K. Prakashan v. P.K. Surenderan [(2008) 1 SCC 258] wherein the Supreme Court reiterated the legal position 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.
http://www.judis.nic.in 9/16 Crl.R.C.No.549 of 2016
22. To the same effect is the decision of the Supreme Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde [(2008) 4 SCC 54] wherein it was observed:
32. Standard of proof on the part of an accused and that of the prosecution a criminal case is different.
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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.
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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.
23. Presumptions under Sections 118(a) and Section 139 were held to be rebuttable on a preponderance of probabilities in Bharat Barrel and Drum Manufacturing Co. v. Amin Chand Pyarelal [(1999) 3 SCC 35] also, where the Supreme Court observed:
11. Though the evidential burden is initially placed on the Defendant by virtue of Section 118 it can be rebutted by the Defendant by showing a preponderance of probabilities that such consideration as stated in the pronote, or in the suit notice or in the plaint does not exist http://www.judis.nic.in 10/16 Crl.R.C.No.549 of 2016 and once the presumption is so rebutted, the said presumption 'disappears'. For the purpose of rebutting the initial evidential burden, the Defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the Plaintiff who has also the legal burden.
24. In Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] the Supreme Court compared 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 non-existence 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.
...
http://www.judis.nic.in 11/16 Crl.R.C.No.549 of 2016
25. Decisions in Mahtab Singh and Anr. v. State of Uttar Pradesh [(2009) 13 SCC 670], Subramaniam v. State of Tamil Nadu [(2009) 14 SCC 415] and Vishnu Dutt Sharma v. Daya Sapra [(2009) 13 SCC 729], take the same line of reasoning.''
9.In the light of the aforesaid legal principles, it is to be asertained whether the petitioner/accused in the present case has succeeded to rebut the presumption arising in favour of the respondent/complainant in terms of Section 118 read with Section 139 of the Negotiable Instruments Act. According to the petitioner/accused, he requested the respondent to lend a sum of Rs.4,00,000/- in the year 2011 and he received Rs.3,20,000/- after deducting Rs.80,000/- and at that time, he issued two blank cheques as security; though he discharged the said liability, the respondent failed to return the cheques, which was later misused for the purpose of filing the present complaint. Thus, the main defence raised by the petitioner is that he issued the cheque in question as security for the earlier loan obtained from the respondent. To prove the same, he examined DW1 and DW2, but no document was marked.
10.From the evidence and materials adduced by the parties, it is manifest that the petitioner has not disputed the http://www.judis.nic.in 12/16 Crl.R.C.No.549 of 2016 issuance of cheque in question and the signature found therein. As such, the presumption lies in favour of the respondent that the cheque in question was issued by the petitioner for legally enforceable liability. In such circumstances, the petitioner has to rebut the same through preponderance of probability, whereas the oral evidence adduced by him would only disclose the fact that there were money transactions between the two. Though he replied to the legal notice issued by the respondent, the contents of the same were not substantiated by any oral or documentary evidence. Further, nothing has been elicited from the cross examination of P.W.1. That apart, the petitioner has not subjected himself to witness box, which is fatal to his case. In the considered opinion of this Court, a mere denial of the averments made by the respondent is not sufficient for rebutting the presumptions arising in his favour and it is for the petitioner to demonstrate that there exists preponderance of probabilities that the cheque in question was not issued towards discharge of any legally enforceable debt/liability, but the petitioner has failed to do so. On the other hand, the respondent has proved his case that the petitioner committed the offence under Section 138 of the Negotiable Instruments Act. Hence, the trial Court has rightly convicted the petitioner for the same and the same was also affirmed by the Appellate Court. http://www.judis.nic.in 13/16 Crl.R.C.No.549 of 2016
11.This Court, thus, does not find any reason to upset the view so taken by the Courts below.
12.Accordingly, the Criminal Revision Case stands dismissed being devoid of merits. The trial Court is directed to secure the accused and commit him in prison to undergo the remaining period of sentence, if any. If any amount has been deposited by the accused either in the appellate Court or in the trial Court in connection with this case, the same shall be disbursed with accrued interest to the complainant or to his legal heirs, as the case may be. It is always open to the parties to file an application before the trial Court under Section 147 of the Negotiable Instruments Act for compounding the offence even after the accused is taken into custody. In the event of the matter being compounded under Section 147, ibid, before the trial Court, the Magistrate shall send a report to the Assistant Registrar (Crl. Side) of this Court, who shall make it form part of the records in this Criminal Revision. Registry is directed to transmit the original records if any, to the respective Courts forthwith.
27.02.2020 Index: Yes/No Internet: Yes/No Speaking /Non speaking order rk http://www.judis.nic.in 14/16 Crl.R.C.No.549 of 2016 To
1. The I Additional Sessions Judge, Thiruvallur.
2. The Fast Tract Court at Magisterial Level, Thiruvallur http://www.judis.nic.in 15/16 Crl.R.C.No.549 of 2016 R.MAHADEVAN, J.
rk Crl.R.C.No.549 of 2016 27.02.2020 http://www.judis.nic.in 16/16