Himachal Pradesh High Court
Ved Parkash vs Babu Ram Sharma on 11 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.331 of 2016 Reserved on: 28.11.2023 Date of Decision: 11.01.2024 Ved Parkash ... Petitioner .
Versus
Babu Ram Sharma ....Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes of For the Petitioner : Mr. Anirudh Sharma, Advocate.
For the Respondent : Mr. Prajjwal Gupta, Advocate.
rt Rakesh Kainthla, Judge The present revision is directed against the judgment dated 29.08.2016 passed by learned Sessions Judge, Sirmaur at Nahan, H.P. vide which the appeal filed by the petitioner (accused before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were referred before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). It was asserted that the complainant and the accused are 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 11/01/2024 20:34:32 :::CIS 2brothers-in-law in relation. The accused required money to pay the loan from the H.P. State Cooperative Bank Branch at Rajgarh.
The accused approached the complainant in September 2011 and demanded ₹ 2,00,000/- from the complainant for one year. The .
complainant advanced the loan. The accused issued a post-
dated cheque No. 713405 (Ext. CW2/A) for a sum of ₹2,00,000/-
drawn on HP State Cooperative Bank Habban Branch for discharging his legal liability. The complainant presented the of cheque for collection before his bank namely HP State Co-
operative Bank, Rajgarh. The cheque was sent to the bank of the rt accused. However, the bank of the accused dishonoured the cheque with the endorsement 'insufficient balance'. Memo (Ext.
CW2/B) was issued by the bank of the accused. The cheque and the memo were returned to the complainant by the bank of the complainant with the memo (Ext. CW/1C). The complainant issued a legal notice (Ext. CW3/B), which was sent through registered post. Postal Receipt (Ext. CW3/C) was obtained. The accused failed to repay the amount despite the receipt of the notice. Hence, the complaint was filed before the Court.
3. Learned Trial Court found sufficient reasons for summoning the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 3 punishable under Section 138 of the NI Act. The accused pleaded not guilty and claimed to be tried.
4. The complainant examined three witnesses to prove his case. Sitanshu Vermani (CW1) proved that the complainant .
presented a cheque in his bank. Amrander Kumar (CW2) proved that the cheque was dishonoured due to insufficient funds. Babu Ram (CW3) is the complainant.
of
5. The accused in his statement recorded under Section 313 Cr.P.C. denied the case of the complainant in its entirety. He rt stated that he had given the cheque to his brother-in-law who had some financial transaction with the complainant. He admitted that the cheque was dishonoured with the endorsement of 'insufficient funds'. He stated that he had not received any legal notice. He had never borrowed any money from the complainant. He examined Ashok Kumar (DW1) in his defence.
6. The Learned Trial Court held that the complainant's version that the accused had issued a cheque to him in the discharge of his legal liability was duly established. The version of the accused that the cheque was given by him to Ashok Kumar who had handed it over to the complainant was not believable.
The cheque was dishonoured due to insufficient funds. The plea ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 4 of the accused that he had not received the notice was also not acceptable. The accused had failed to deposit the money within 15 days of making an appearance in the Court and this defence is not available to him. Hence, the accused was convicted of the .
commission of an offence and was sentenced to undergo simple imprisonment for one month and pay a fine of ₹2,35,000/-as compensation.
7. Being aggrieved from the judgment and order passed of by the learned Trial Court, the accused filed an appeal, which was decided by learned Sessions Judge, Sirmaur at Nahan.
rt Learned First Appellate Court held that the cheque carried with it a presumption that it was issued in discharge of the legal liability. The cheque was dishonoured due to insufficient funds and the accused had failed to pay the money despite the receipt of the notice. The statement of Ashok Kumar (DW1) was highly improbable and contrary to normal human conduct. The accused had also not taken any steps to take the cheque back from the complainant. Therefore, the appeal was dismissed.
8. Being aggrieved from the judgment passed by the learned First Appellate Court, the accused has filed the present revision asserting that the learned Courts below erred in misreading and misappreciating the evidence led on record. The ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 5 complainant had failed to produce any written document showing that ₹2,00,000/- was advanced to the accused. No witness was examined to establish this fact. No document was filed to prove the financial capacity to lend the amount. The .
complainant stated in his cross-examination that his wife was present at the time of advancing of the loan, she was not examined. The complainant did not have the financial capacity to lend such a huge amount. The testimony of Ashok Kumar was of believable and the learned Courts below erred in rejecting his testimony. The complainant did not produce any document to rt show his financial capacity. The accused had specifically stated in his statement recorded under Section 313 of Cr.P.C. that the cheque was issued to Ashok Kumar, who had handed it over to the complainant. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by learned Courts below be set aside.
9. I have heard Mr. Anirudh Sharma, learned counsel for the petitioner and Mr. Prajjwal Gupta, learned counsel for the respondent.
10. Mr. Anirudh Sharma, learned counsel for the petitioner/accused submitted that the learned Courts below erred in convicting and sentencing the accused. The ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 6 complainant had failed to prove his financial capacity. The statement of Ashok Kumar was satisfactory and the learned Courts below erred in rejecting the same; therefore, he prayed that the present revision be allowed and the judgments and .
order passed by the learned Courts below be set aside.
11. Mr. Prajjwal Gupta, learned counsel for the respondent supported the judgments and order passed by learned Courts below and submitted that no interference is of required with the same.
12. rt I have given considerable thought to the submissions at the bar and have gone through the records carefully.
13. The present revision has been filed against the concurrent findings of the fact recorded by the learned Trial Court and the learned Appellate Court. 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 appellate Court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at 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 ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 7 against conviction is not supposed to exercise the jurisdiction alike 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 jurisdiction or law. There has to be 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 of reverse those findings.
11. This Court in Manju Ram Kalita v. State of Assam [Manju Ram Kalita v. State of Assam, (2009) 13 SCC 330 : (2010) 1 SCC (Cri) 1015], while dealing with the scope rt of reappreciation of evidence by higher Court in criminal revision, observed in paras 9, 10 and 11 of the judgment as under : (SCC pp. 333-34) "9. So far as Issue 1 is concerned i.e. as to whether the appellant got married to Smt Ranju Sarma, is a pure question of fact. All three courts below have given concurrent findings regarding the factum of marriage and its validity. It has been held to be a valid marriage. It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon the fruitless task of determining the issues by reappreciating the evidence.
10. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from normal practice.
'9. ... The position may undoubtedly be different if the inference is one of law from [the] facts ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 8 admitted and proved or where the finding of fact is materially affected by a violation of any rule of law or procedure.' (Vide Sriniwas Ram Kumar v. Mahabir Prasad [Sriniwas Ram Kumar v. Mahabir Prasad, 1951 SCC 136] , SCC p. 139, para 9) ***
11. Thus, it is evident from the above that this Court .
being the fourth court should not interfere with the exercise of discretion by the courts below as the said courts have exercised their discretion in good faith giving due weight to relevant material and without being swayed by any irrelevant material. Even if two views are possible on the question of fact, we, being the fourth court, should not interfere even though we of may exercise discretion differently had the case come before us initially. In view of the above, we are not inclined to interfere with the finding of fact so far as the issue of bigamy is concerned nor the quantum of rt punishment on this count is required to be interfered with."
14. The present revision has to be decided as per the judgment of the Hon'ble Supreme Court.
15. The complainant (CW3) reiterated the contents of the complaint in his proof affidavit (Ext CW3/A). He stated in his cross-examination that he had known the accused for 13-14 years. He had not annexed any documents showing his business and to show that he was a Contractor of HPPWD and IP&H. He files the income tax returns but has not annexed the same to the complaint. He could not tell the date and time of advancing the loan. However, the loan was advanced in September 2011. His wife and children were present at the time of the advancement of the loan. No other person was present. The money was paid in ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 9 cash and no receipt was obtained. He had ₹25,000/- as rent, ₹47,000/- as the rent of the pick-up from the milk federation.
However, he did not have any proof. He denied that he had taken the cheque from Ashok as a security. He could not say that the .
notice was not received by the accused. He was residing at Rajgarh for 15 years. He had worked as a tailor earlier but had left this job about 10 years before the date of deposition. He denied that he started the business of lending the money. He of denied that he obtained blank signed cheque from the people in lieu of the loan. He had filed two complaints, which were rt withdrawn by him after they were compromised. He could not say that the body of the cheque and signatures were in different inks. He denied that Ashok Kumar had returned the money and he had not returned the cheques to Ashok Kumar. He volunteered to say that he had no business transactions with Ashok. He denied that he was making a false statement.
16. The cross-examination of this witness shows that the accused did not dispute the fact that the cheque was handed over to him. It was suggested to him that a blank signed cheque was handed over as security by Ashok Kumar to him. The accused also stated that fact in his statement recorded under Section 313 of Cr.P.C.
::: Downloaded on - 11/01/2024 20:34:32 :::CIS 1017. The accused examined Ashok Kumar (DW1). He stated that Babu Ram does not do any business. He had a transaction with complainant Babu Ram as he had borrowed ₹50,000/- from him in 2011. The accused demanded his cheque .
and the cheque of a guarantor. He had a cheque bearing no.
713405 of the accused, which was handed over by him to the complainant. The Court recorded that cheque No. 713405 and HP Cooperative Bank were written by the witness on his palm.
of He had returned the money to the complainant. He demanded his cheque and the security cheque of the accused. However, the rt complainant did not return the cheques. He stated in his cross-
examination that the accused was his brother-in-law. He admitted that the HP Cooperative Bank had filed a complaint against the accused for not returning the loan; however, he could not say that this complaint was filed in the year 2011. He denied that the accused borrowed the money from the complainant to return the money. He did not know that the complainant was a registered contractor with HP PWD and I&PH. He admitted that the complainant had ancestral property and other property in Rajgarh. He denied that he had any transaction with the complainant. He could not produce any document regarding the transaction between him and the complainant. He did not remember the cheque number which ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 11 was handed over by him to the complainant or the account on which the cheque was drawn.
18. The statement of this witness shows that he had written the cheque number and the name of the bank on his .
hand which clearly shows that these were suggested to him by some person. Significantly, he was unable to mention his cheque number or his account number, which shows that he cannot be trusted with the figures. As per his version, the accused had of handed over a blank cheque to him, which he handed over to the complainant as the cheque of the guarantor. Learned Trial Court rt had rightly pointed out that this was highly improbable. The complainant would not have accepted a cheque from any person without being satisfied about the solvency of the person, whose cheque was being handed over to him. No reason has been assigned by Ashok Kumar as to why the complainant should misuse the cheque of the accused but not his cheque. As per his version, his cheque and the cheque of the accused were lying with the complainant and if the complainant intended to misuse the cheque, he could have misused not only the cheque of the accused but also the cheque of this witness. The fact that only one cheque was used falsifies his version that he had handed over two cheques to the complainant. The accused or this witness has not given any reason as to why the accused had ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 12 handed over a blank signed cheque to him. Therefore, the version of this witness was inherently suspicious and contrary to normal human conduct and both the learned Courts below were justified in rejecting the same.
.
19. The accused had not disputed his signatures on the cheque. Learned Courts below had rightly pointed out that once the signatures are admitted, a presumption under Section 139 of Cr.P.C. would arise that the cheque was issued in discharge of of legal liability. It was laid down by this Court in Naresh Verma vs. Narinder Chauhan 2020(1) Shim. L.C. 398, that where the accused rt had not disputed his signatures on the cheque, the Court has to presume that it was issued in discharge of legal liability and the burden would shift upon the accused to rebut the presumption.
It was observed:-
"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 ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 13 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.
20. Similar is the judgment in Basalingappa vs. Mudibasappa 2019 (5) SCC 418 wherein it was held:
24. Applying the proposition of law as noted above, in the of 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.
rt
21. This position was reiterated in M/S KalamaniTex and another Versus P. Balasubramanian 2021 (5) SCC 283 wherein it was held:
"14. 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 crystallized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18 SCC 106, 18 in the following words:
"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 ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 14 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....."
15. Once the 2nd Appellant had admitted his signatures on of the cheque and the Deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upon the Complainant-Respondent to rt explain the circumstances under which the appellants were liable to pay. Such an 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.
16. No doubt, and as correctly argued by senior counsel for the appellants, the presumptions raised under Section 118 and Section 139 are rebuttable in nature. As held in MS Narayana Menon v. State of Kerela (2006) 6 SCC 39, 32, which was relied upon in Basalingappa (supra), a probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not a mere possibility. These principles were also affirmed in the case of Kumar Exports (supra), wherein it was further held that bare denial of passing of consideration would not aid the case of the accused."
22. Similar is the judgment in APS Forex Services (P) Ltd.
v. Shakti International Fashion Linkers, (2020) 12 SCC 724 : (2020) 4 SCC (Cri) 505: 2020 SCC OnLine SC 193, 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 ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 15 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 of thereafter a fresh consolidated cheque of Rs 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 rt 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 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.
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. However, to rebut the presumption, the accused was required to lead the evidence that the full amount due and payable to the complainant has 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 ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 16 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 of 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.
rt
23. The learned Trial Court had rightly pointed out that there is a presumption under Section 139 of the Negotiable Instruments 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 Versus Sripad 2022 (1) SCC 742 as under:
11. 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 Exhibits P-6 and P-2 is not disputed. Exhibit 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 N.I. Act reads as hereunder:-
"139. Presumption in favour of holder- It shall be ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 17 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."
12 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 the passing of the .
consideration would arise as provided under Section 118(a) of N.I. 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 of instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, rt indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
13. 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 vs. SankaranVaidhyanBalan&Anr., 1999 (7) SCC 510 wherein it is held as hereunder:
"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 on 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 by the High Court. It is not now open to the accused to contend differently on that aspect."
14. The learned counsel for the respondent has however ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 18 referred to the decision of this Court in Basalingappa vs. Mudibasappa, 2019 (5) SCC 418 wherein it is held as hereunder: -
"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 of accused to raise the probable defence. The standard of proof for rebutting the presumption is that of the preponderance of probabilities.
rt 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 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.
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 into the witness box to support his defence.
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. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of PW1, when the specific question was put that the cheque was ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 19 issued in relation to a loan of ₹25,000 taken by the accused, PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received a monetary benefit of ₹8 lakhs, which was encashed by the complainant. It was also brought in the evidence in the evidence that in the year 2010, the complainant entered into .
a sale agreement for which he paid an amount of ₹4,50,000 to Balana Gouda towards sale consideration. Payment of ₹4,50,000 being admitted in the year 2010 and a further payment of a loan of ₹ 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 of was a burden on the complainant to prove his financial capacity. In the years 2010-2011, as per the own case of the complainant, he made a rt payment of ₹18 lakhs. During his cross- examination, when the financial capacity to pay ₹ 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."
15. 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.
16. On the position of law, the provisions referred to in Sections 118 and 139 of N.I. Act as also the enunciation of law as made by this Court needs no reiteration as there is no ambiguity whatsoever. In, Basalingappa vs. Mudibasappa (supra) 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 ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 20 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 the amount involved. However, the legal position relating to presumption arising under Sections 118 and 139 of N.I. Act on a signature being admitted has been reiterated. Hence, .
whether there is a rebuttal or not would depend on the facts and circumstances of each case.
24. This position was reiterated in Tedhi Singh vs. Narayan Dass Mahant 2022 (6) SCC 735 wherein it was held:
7. It is true that this is a case under Section 138 of the of Negotiable Instruments Act. Section 139 of the N.I. 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 rt debt or other liability. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is 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, which has also been adverted to in Basalingappa (supra), this Court notes that Section 139 of the N.I. Act is an example of reverse onus [see (2010) 11 SCC 441). 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.
25. 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 ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 21 138 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 is 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."
26. This position was reiterated in Rajesh Jain v. Ajay of Singh, (2023) 10 SCC 148: 2023 SCC OnLine SC 1275 wherein it was observed at page 161:
rt
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 on 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 ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 22 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] ] of
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 rt 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 ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 23 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 Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184 : AIR 2010 SC 1898] ] of
27. Therefore, the Court has to start with the presumption that the cheque was issued in discharge of legal rt liability and the burden is upon the accused to prove the contrary.
28. It was submitted that the complainant had not produced the documents to show that he had sufficient income with him or that he was a Contractor with IP&H and HPPWD as asserted by him. This submission will not help the accused. The accused had taken a defence and examined Ashok Kumar to prove that the complainant was a moneylender; therefore, the financial capacity of the complainant was never disputed by the accused.
29. It was laid down by the Hon'ble Supreme Court in Uttam Ram Versus Devinder Singh Hudan and another (2019) 10 SCC 287 that the complainant is not to prove the debt as in a civil ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 24 court in view of the presumption but only to prove that the cheque was issued by the accused. It was observed:
"20. The Trial Court and the High Court proceeded as if, the appellant is to prove a debt before a 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. 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 was presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is of on the accused to rebut the presumption that the cheque was issued not for any debt or other liability."
30. It was laid down in P. Rasiya v. Abdul Nazer, 2022 SCC rt OnLine SC 1131 that the complainant is not to state the nature of the transaction or the source of funds. It was observed:
"By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. 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 ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 25 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. The aforesaid has not been dealt with and considered by the High Court."
31. Therefore, in view of the binding precedents of the Hon'ble Supreme Court, the complainant is not required to .
prove the existence of legally enforceable debt or liability as this is a matter of presumption. Rather, the accused is required to disprove the existence of legally enforceable debt or liability.
of
32. It was suggested to the complainant that the cheque was written in different inks, which he denied for want of rt knowledge. No expert was examined to establish this fact.
Hence, this fact has not been proved.
33. In any case, it was laid down by the Hon'ble Supreme Court in Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197, that a person is liable for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act even if the cheque is filled by some other person. It was observed:
"37. 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 the 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.::: Downloaded on - 11/01/2024 20:34:32 :::CIS 26
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
39. It is not the case of the respondent accused that he .
either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of of evidence of the exercise of undue influence or coercion. The second question is also answered in the negative.
40. Even a blank cheque leaf, voluntarily signed and rt 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.
41. The fact that the appellant-complainant might have been an Income Tax practitioner conversant with knowledge of the law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-accused should have given or signed a blank cheque to the appellant complainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them.
42. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant- complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 27 the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of .
the Negotiable Instruments Act."
34. This position was reiterated in Oriental Bank of Commerce vs. Prabodh Kumar Tewari 2022 0 Supreme (SC) 837 wherein it was observed:
of "12. The submission which has been urged on behalf of the appellant is that even assuming, as the first respondent submits, that the details in the cheque were not filled in by the drawer, this would not make any rt difference to the liability of the drawer.
xxxxxx
15. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in the discharge of a liability. The presumption arises under Section 139"
35. The accused claimed that it was issued as a security.
It was laid down by this Court in Hamid Mohammad Versus Jaimal Dass 2016 (1) HLJ 456, that even if the cheque was issued towards the security, the accused will be liable. It was observed:
"9. Submission of learned Advocate appearing on behalf of the revisionist that cheque in question was issued to the complainant as security and on this ground, criminal revision petition be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. As per Section 138 of Negotiable Instruments Act 1881 if any cheque is issued on account of other liability then provisions of Section 138 of Negotiable Instruments Act 1881 would be attracted. The court has perused the ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 28 original cheque Ext. C-1 dated 30.10.2008 placed on record. There is no recital in cheque Ext. C-1 that cheque was issued as a security cheque. It is well-settled law that a cheque issued as security would also come under the provision of Section 138 of the Negotiable Instruments Act 1881. See 2016 (3) SCC page 1 titled Don Ayengia v. State of Assam & another. It is well-settled law that where there .
is a conflict between former law and subsequent law then subsequent law always prevails."
36. It was laid down by the Hon'ble Supreme Court in Sampelly Satyanarayana Rao vs. Indian Renewable Energy Development Agency Limited 2016(10) SCC 458 that issuing a of cheque toward security will also attract the liability for the commission of an offence punishable under Section 138 of N.I. rt Act. It was observed:-
"10. We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways Private Limited versus Magnum Aviation Private Limited (2014) 12 SCC 53 with reference to the explanation to Section 138 of the Act and the expression "for the discharge of any debt or other liability" occurring in Section 138 of the Act. We are of the view that the question of whether a post-dated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise.
11. Reference to the facts of the present case clearly shows that though the word "security" is used in clause 3.1(iii) of the agreement, the said expression refers to the cheques being towards repayment of instalments. The repayment becomes due under the agreement, the moment the loan is advanced and the instalment falls due. It is undisputed that the loan was duly disbursed on 28th February 2002 which was prior to the date of the cheques. Once the loan was disbursed and instalments ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 29 have fallen due on the date of the cheque as per the agreement, the dishonour of such cheques would fall under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability.
12. Judgment in Indus Airways (supra) is clearly distinguishable. As already noted, it was held therein that liability arising out of a claim for breach of contract under .
Section 138, which arises on account of dishonour of cheque issued was not by itself at par with a criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour of a cheque issued for discharge of later liability is clearly covered by the statute in question. Admittedly, on the date of the cheque, there was a debt/liability in praesenti in terms of of the loan agreement, as against the case of Indus Airways (supra) where the purchase order had been cancelled and a cheque issued towards advance payment for the purchase order was dishonoured. In that case, it was rt found that the cheque had not been issued for discharge of liability but as an advance for the purchase order which was cancelled. Keeping in mind this fine but the real distinction, the said judgment cannot be applied to a case of the present nature where the cheque was for repayment of loan instalment which had fallen due though such deposit of cheques towards repayment of instalments was also described as "security" in the loan agreement. In applying the judgment in Indus Airways (supra), one cannot lose sight of the difference between a transaction of the purchase order which is cancelled and that of a loan transaction where the loan has actually been advanced and its repayment is due on the date of the cheque.
13. The crucial question to determine the applicability of Section 138 of the Act is whether the cheque represents the discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from the discussion of the said cases in the judgment of this Court." (Emphasis supplied) ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 30
37. This position was reiterated in Sripati Singh vs. State of Jharkhand AIR 2021 SC 5732, and it was held that a cheque issued as security is not a waste paper and complaint under Section 138 of the N.I. Act can be filed on its dishonour. It was .
observed:
16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a of loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the rt borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of the amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow.
17. When a cheque is issued and is treated as 'security' towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as 'security cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner, if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 31 be an understanding between the parties is a sine qua non to not present the cheque which was issued as security.
These are only the defences that would be available to the drawer of the cheque in proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque, which is issued as security can never be presented by the drawee of the .
cheque. If such is the understanding a cheque would also be reduced to an 'on-demand promissory note' and in all circumstances, it would only be civil litigation to recover the amount, which is not the intention of the statute.
When a cheque is issued even though as 'security' the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated of above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact rt situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation.
38. The accused admitted in his statement recorded under Section 313 of Cr.P.C. that the cheque was dishonoured due to 'insufficient funds'. Therefore, this fact is not in dispute otherwise also Amrander Kumar (CW2) stated that cheque No.713405 was dishonoured due to insufficient funds and it was returned to the collecting bank with the memo. He admitted in his cross-examination that he was not posted in the bank at the time of the receipt of the cheque. However, that is not material because there is a presumption under Section 146 of the Negotiable Instrument Act regarding the correctness of the memo of dishonour. The accused has not disputed this fact in ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 32 his statement recorded under Section 313 Cr.P.C. and the presumption has not been rebutted; therefore, it was duly proved that the cheque was dishonoured due to insufficient funds.
.
39. The complainant stated that he had issued a notice (Ext. CW3/B) to the accused asking him to pay the amount within 15 days of the receipt of the notice. He has brought on record the postal receipt (Ext. CW3/C) which mentions the same of address of the accused as was mentioned in the complaint, charge and the statement of the accused under Section 313 rt Cr.P.C. Therefore, the notice was sent to the correct address. It was laid down by the Hon'ble Supreme Court in Ajeet Seeds Ltd.
Versus K. Gopala Krishnaiah 2014 AIR(SCW) 4321 that Section 27 of the General Clauses Act raises a presumption regarding the delivery of a letter sent to a correct address. It was observed:
10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that the service of notice has been effected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice.
Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 33 ordinary course of business.
40. The complainant stated that he had not received the notice. Learned Trial Court had rightly pointed out that the person, who claimed that he had not received a notice as to pay .
the amount within 15 days from the receipt of the summons of the Court. It was laid down in C.C. Allavi Haji vs. Pala Pelly Mohd.
2007(6) SCC 555 that the person who claims that he had not received the notice has to pay the amount within 15 days from of the date of the receipt of the summons from the Court and in case of failure to do so, he cannot take the advantage of the fact rt that notice was not received by him. It was observed:
"It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of the complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 34 receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."(Emphasis supplied)
41. The accused has not paid any money to the complainant, and it was duly proved that the accused had failed .
to pay the money despite the receipt of the notice.
42. Thus, it was duly proved that the cheque was issued in discharge of the legal liability which was dishonoured due to insufficient funds and the accused failed to make the payment of despite the receipt of a valid notice of demand; hence, the complainant had succeeded in proving its case beyond the rt reasonable doubt.
43. Learned Trial Court had sentenced the accused to undergo simple imprisonment for one month and to pay a fine of ₹2,35,000/-. 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 vs. Mukesh Kumar 2019 (4) SCC 197 that the penal provision of Section 138 is a deterrent in nature. It was observed:
"9. 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 ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 35 intended to be a deterrent to the callous issuance of negotiable instruments such as cheques without serious intention to honour the promise implicit in the issuance of the same."
44. In view of this consideration, the sentence of one month is not excessive.
.
45. Learned Trial Court had awarded a compensation of ₹2,35,000/-. The cheque was issued on 20.03.2013 and learned Trial Court passed the order on 10.09.2015 after a lapse of more of than two years. It was laid down by the Hon'ble Supreme Court in M/S Kalamani Tex and another Versus P. Balasubramanian JT rt 2021(2) SC 519 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:-
"20. 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 the 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 a fine up to twice the cheque amount along with simple interest at the rate of 9% per annum. [R. Vijian v. Baby, (2012) 1 SCC 260, 20]"
46. In the present case, the amount awarded by the learned Trial Court as affirmed by the learned Sessions Judge is inadequate but in the absence of any appeal regarding the ::: Downloaded on - 11/01/2024 20:34:32 :::CIS 36 enhancement of sentence, no interference is required with the same.
47. No other point was urged.
48. In view of the above, the present revision fails and .
the same is dismissed.
(Rakesh Kainthla) Judge 11th January, 2024 of (saurav pathania) rt ::: Downloaded on - 11/01/2024 20:34:32 :::CIS