Himachal Pradesh High Court
Kediya Ram Gandhar vs Sri Mohan [3] Held That Section 139 Is An on 8 August, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8TH DAY OF AUGUST, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
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CR. REVISION NO. 58 OF 2019
Between:-
KEDIYA RAM GANDHAR
SON OF SH. MOGI RAM,
VILLAGE KANTI MASHWA, SUB TEHSIL KAMRAOO,
DISTRICT SIRMOUR, H.P.
PETITIONER
(BY MR. ASHOK K. TYAGI, ADVOCATE)
AND
PARAMJEET VERMA
SON OF SH. PREM PAL VERMA,
RESIDENT OF H. NO. 181,
WARD NO. 8,
NEAR BUS STAND PAONTA SHAIB,
DISTRICT SIRMOUR, H.P.
RESPONDENT
(BY MR. JEEVAN KUMAR, ADVOCATE)
Whether approved for reporting: Yes.
This petition coming on for orders this day, the court passed the following:
O R D E R
Instant criminal revision petition filed under S. 397 CrPC, lays challenge to judgment dated 8.1.2019 passed by learned Additional Sessions Judge, Sirmaur at Nahan, Himachal Pradesh camp at Paonta Sahib, District Sirmaur, Himachal Pradesh, in Cr. Appeal No.75-N/10 of 2017, affirming judgment of conviction and order of sentence dated 11.9.2017, passed by learned Judicial Magistrate First Class, Court No.2, Paonta Sahib, District Sirmaur, Himachal Pradesh in Cr. Case No. 109/3 of 2012, whereby learned trial Court, while holding petitioner-accused ::: Downloaded on - 08/08/2022 20:02:21 :::CIS 2 (hereinafter, 'accused') guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, 'Act') convicted and sentenced him to under rigorous imprisonment for one year and pay a compensation to the tune of Rs. 1.00 Lakh to the respondent-
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complainant (hereinafter, 'complainant').
2. Precisely, the facts of the case, as emerge from the record, are that the complainant instituted proceedings under S.138 of the Act in the court of learned Judicial Magistrate First Class, Court No.2, Paonta Sahib, alleging therein that on 29.3.2012, he lent a sum of Rs. 50,000/- to the accused on his request, who with a view to discharge his liability, issued cheque bearing No. 024027 dated 2.4.2012, for a sum of Rs. 50,000/-, drawn on State Bank of India, Branch Rajban. However, the fact remains that the aforesaid cheque on its presentation was dishonoured on account of insufficient funds in the account of the accused. Since despite receipt of legal notice, accused failed to make the payment of cheque amount within the stipulated time, complainant instituted proceedings under S. 138 of the Act in the competent court of law, which, after hearing the parties and appreciating the evidence led on record, held accused guilty of having committed offence punishable under S. 138 of the Act, and accordingly convicted and sentenced as per description given above.
3. Being aggrieved and dissatisfied with judgment of conviction and order of sentence passed by learned trial Court, accused preferred an appeal before learned Additional Sessions Judge Sirmaur camp at Paonta Sahib, which was dismissed vide judgment dated 8.1.2019, as consequence of which, judgment of conviction and order of sentence ::: Downloaded on - 08/08/2022 20:02:21 :::CIS 3 passed by learned trial Court, came to he upheld.. In the aforesaid background, accused has approached this court in the instant proceedings, praying therein for his acquittal, after setting aside judgments of conviction and order of sentence.
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4. Vide order dated 4.2.2019, this court suspended substantive sentence imposed by learned trial Court upon the accused subject to petitioner's depositing entire amount of compensation and furnishing personal bonds in the sum of Rs.20,000/- within six weeks. However, aforesaid order never came to be complied with. Only a sum of Rs.
50,000/- came to be deposited on behalf of the accused.
5. On 18.7.2022, this court granted last opportunity of two weeks to the petitioner to make payment of the balance amount, but the fact remains neither he came present in the court nor deposited the balance amount. Learned counsel for the petitioner states that since despite repeated opportunities, petitioner is not coming forward to deposit remaining amount, this court may dispose of the present petition on merit.
6. I have heard learned counsel for the parties and perused material available on record.
7. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the judgments of conviction and order of sentence impugned in the petition at hand, this court finds no force in the submission of learned counsel for the accused that the learned courts below have failed to appreciate the evidence in its right perspective, as a consequence of which findings contrary to record ::: Downloaded on - 08/08/2022 20:02:21 :::CIS 4 have come to the fore. Material available on record reveals that neither issuance of cheque nor signatures thereupon have been denied by the accused, rather he set up a case that the cheque was issued as a security because the complainant helped him in getting the loan sanctioned.
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However, no probable defence ever came to be led on record by the accused to prove aforesaid defence taken by him. Needless to say, there is a presumption in favour of holder of cheque that the same was issued with a view to discharge lawful liability. No doubt aforesaid presumption is rebuttable but for that purpose, person taking such defence is required to raise probable defence either by leading positive evidence in this behalf or by referring to documents led on record by complainant. In the case at hand, save and except one defence set up by accused that he issued security cheque, no cogent and convincing evidence ever came to be led on record by him. Accused set up a case that he had agreed to pay Rs.
1,000/- to the complainant for his having rendered assistance to secure loan from the Bank and had issued one signed blank cheque, which was to be filled up and used by the complainant, in case, sum of Rs. 1,000/-
agreed to be paid by him was not paid. Accused set up a case that though Rs. 1,000/- was paid to complainant, but yet he misused the cheque.
8. Aforesaid defence set up by the accused is highly improbable especially when no evidence ever came to be led on record with regard to application, if any made by accused to the bank concerned for advancement of loan and thereafter sanction order if any issued.
9. Once there is no denial of issuance of cheque and signatures thereupon, presumption as available under Ss.118 and 139 comes into ::: Downloaded on - 08/08/2022 20:02:21 :::CIS 5 play. Section 118 and 139 of the Act clearly provide 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. True, it is that .
to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant.
10. Reliance in this regard is placed upon judgment rendered by Hon'ble Apex Court in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106, wherein, it has been held as under:
"18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence.
19. In order to discharge his burden, the accused put forward the defence that in fact, he had had the monetary transaction with the said Shri Jagdishbhai and not with the complainant. In view of such a plea of the accused-appellant, the question for consideration is as to whether the accused-appellant has shown a reasonable probability of existence of any transaction with Shri Jagdishbhai? In this regard, significant it is to ::: Downloaded on - 08/08/2022 20:02:21 :::CIS 6 notice that apart from making certain suggestions in the cross- examination, the accused- appellant has not adduced any documentary evidence to satisfy even primarily that there had been some monetary transaction of himself with Shri Jagdishbhai. Of course, one of the allegations of the appellant is that the said stamp paper was given to Shri .
Jagdishbhai and another factor relied upon is that Shri Jagdishbhai had signed on the stamp paper in question and not the complainant. 19.1 We have examined the statement of Shri Jagdishbhai as also the said writing on stamp papers and are unable to find any substance in the suggestions made on behalf of the accused-appellant. 19.2 The said witness Shri Jagdishbhai, while pointing out his acquaintance and friendship with the appellant as also with the respondent, asserted in his examination-in-chief, inter alia, as under:
"Accused when he comes to our shop where the complainant in the matter Shashimohan also be present that in both the complainant and accused being our friends, were made acquaintance with each other. The accused had necessity of money in his business, in my presence, had demanded Rs.22,50,000/- (Rupees twenty two lacs fifty thousandly) on temporary basis. And thereafter, the complainant from his family members by taking in piecemeal had given to the accused in my presence. Thereafter, on demanding the money by the complainant, the accused had given seven (7) cheques to the complainant in our presence but such cheques being washed out in rainy water and on informing me by the complainant I had informed to the accused. Thereafter, Rohitbhai had given other seven (7) cheques to the complainant in my presence and the deed was executed on Rs. 100/- stamp paper in there is my signature."
19.3 This witness was cross-examined on various aspects as regards the particulars in the writing on the stamp paper and the date and time of the transactions. In regard to the defence as put in the cross-examination, the witness stated as under:
"I have got shop in National Plaza but in rain no water logging has taken place. It is not true that there had been no financial dealings between me and the accused today. It is not true that I had given rupees ten lacs to the accused Rohitbhai on temporary basis. It is not true that for the amount given to the accused, I had taken seven blank duly cheques also blank stamp paper without signature. It is not true that there was quarrel between me and the accused in the matter of payment of interest. It is not true that even after the payment of Rs. ten lacs and the huge amount of the interest in the matter of interest quarrel was made. It is not true that due to the reason of quarrel with the accused, in the cheques of the accused lying with me by making obstinate writing has filed the false complaint through Shashimohan Goyanka. It is not true that no financial dealings have taken place between the ::: Downloaded on - 08/08/2022 20:02:21 :::CIS 7 complainant and the accused. therefore I also the complainant both at the time of evidence the accused at what place, on what date at what time, the amount taken has not been able to make clearly. (sic) It is not true that the blank stamp paper duly signed were lying in which obstinate writing has been made therefore the same has not been registered through sub registrar. It is not true that the dealings have been made between me and accused .
therefore there is my signature and the signature of the accused and the complainant has not signed. It is not true that any types of dealings between the accused and the complainant having not been done in my presence therefore in my statement no clarification has been given. It is not true that the accused in my presence as mentioned in the complaint any cheque has not been given. It is not true that I in collusion with the complainant to usurp the false amount the false complaint has been filed through Shashimohan Goyanka. It is not true that in support of the complaint of Shashimohan Goyanka is giving false statement."
19.4 The statement of Shri Jagdishbhai does not make out any case in favour of the accused-appellant. It is difficult to say that by merely putting the suggestion about the alleged dealing to Shri Jagdishbhai, the accused- appellant has been able to discharge his burden of bringing on record such material which could tilt the preponderance of probabilities in his favour.
19.5 The acknowledgement on the stamp paper as executed by the appellant on 21.03.2007 had been marked with different exhibit numbers in these 7 cases. In Complaint Case No. 46499 of 2008, the same is marked as Ex. 54 and reads as under :
"Today the executor I Rohit Patel Ranchhodray Masala is a partner. Due to the financial difficulties having been arised, I have taken Rs.22,500,000/- (Rupees twenty two thousand fifty thousand only- sic) from my group which are to be paid to Shashimohan Goyanka.
With reference to that today I have given seven (7) cheques of Corporation Bank, Alkapuri Branch bearing No. 763346 to 762252 amounting to Rs. 22,50,000/- (Rupees twenty two lacs fifty thousand only) Dates : (1) 01/4/08, (2) 01/05/08 (3) 01/07/08, (4) 01/08/08 (5) 01/10/08 (6) 01/11/08 (7) 01/12/08 the account of which is 40007.
Earliest these cheques were given but due to rainy water logging the said cheques having been washed out (7) cheques have again been given which is acceptable to me."
19.6 The fact of the matter remains that the appellant could not deny his signatures on the said writing but attempted to suggest that his signatures were available on the blank stamp paper with Shri ::: Downloaded on - 08/08/2022 20:02:21 :::CIS 8 Jagdishbhai. This suggestion is too remote and too uncertain to be accepted. No cogent reason is available for the appellant signing a blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of Bank and account number are of the same cheques which form the .
subject matter of these complaint cases. The said document bears the date 21.03.2007 and the cheques were post- dated, starting from 01.04.2008 and ending at 01.12.2008. There appears absolutely no reason to discard this writing from consideration.
19.7 One of the factors highlighted on behalf of the appellant is that the said writing does not bear the signature of the complainant but and instead, it bears the signatures of said Shri Jagdishbhai. We find nothing unusual or objectionable if the said writing does not bear the signatures of the complainant. The said writing is not in the nature of any bi partite agreement to be signed by the parties thereto. It had been a writing in the nature of acknowledgement by the accused-appellant about existence of a debt; about his liability to repay the same to the complainant; about his having issued seven post-dated cheques; about the particulars of such cheques; and about the fact that the cheques given earlier had washed away in the rain water logging. Obviously, this writing, to be worth its evidentially value, had to bear the signatures of the accused, which it does. It is not unusual to have a witness to such a document so as to add to its authenticity; and, in the given status and relationship of the parties, Shri Jagdishbhai would have been the best witness for the purpose. His signatures on this document, therefore, occur as being the witness thereto. This document cannot be ruled out of consideration and existing this writing, the preponderance of probabilities lean heavily against the accused-appellant.
11. The Hon'ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the ::: Downloaded on - 08/08/2022 20:02:21 :::CIS 9 materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable .
Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:-
"23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 138can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof". The Court further observed that it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is all preponderance of probabilities.
24. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant.::: Downloaded on - 08/08/2022 20:02:21 :::CIS 10
25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated .
under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy."
12. Complainant with a view to prove his case, deposed as CW-4 and tendered his affidavit in evidence, Ext. CW-4/A. He successfully proved cheque Ext. CW-2/B, Return Memo, Mark-A, legal notice, Ext. CW-4/B, which bears his signatures in red circle 'A' and 'B', postal receipt mark-A, acknowledge mark B and receipt Mark C. In his, cross-examination this witness deposed that he is an Accountant and he came in contact of accused in the year 2011 in connection with PMRY loan. He further deposed that the accused charged Rs.1,000/- for his loan case as he was agent of Bank. He stated that the loan was rejected in the year 2011, as a consequence of which his relations with the accused became strained. He denied that on account of strained relations, he had threatened to implicate the accused in false case. Complainant admitted that he has no money lending licence. He stated that he withdrew Rs.25,000/- from ATM and remaining amount of Rs.25,000/- was in cash with him. Complainant ::: Downloaded on - 08/08/2022 20:02:21 :::CIS 11 stated that the receipt Mark C is dated 29.3.2012. C. He further deposed that it was handwriting of accused and writing 'A' and 'B' are of different pen. This witness denied that he obtained signatures of the accused on blank papers or that the signatures on Mark C are not of the accused. He .
also denied that the notice was not properly served upon the accused. He specifically denied that he obtained blank cheque in lieu of Rs.1000/-, while preparing his PMRY loan. He denied that he filled cheque himself.
He further denied that the accused did not borrow Rs.50,000/- from him.
13. Close scrutiny of the evidence led on record by respective parties, suggests that the accused has admitted the factum with regard to issuance of cheque Exhibit CW-2/B but claimed that it was issued as a security cheque to the complainant to keep promise of providing PMRY loan and it was not issued towards any legally enforceable liability.
However, such claim of the accused is totally contrary to the record available on record, especially the receipt Ext. CW-5/A, wherein he admitted factum with regard to borrowing of Rs.50,000 from the complainant. Ext. CW-5/A bears signatures of the accused which resemble the signatures of the accused on Ext. CW-2/B.
14. CW-5 Shakeel Ahmad categorically proved the factum with regard to execution of receipt Ext. CW-5/A, by depositing that the accused borrowed Rs. 50,000/- from the complainant and in lieu thereof, the accused issued cheque, Ext CW-2/B.
15. Contention of learned counsel for the accused that the cheque was a security cheque, stands falsified from the statement of complainant, wherein he stated that the loan was rejected in 2011, whereas, cheque ::: Downloaded on - 08/08/2022 20:02:21 :::CIS 12 was issued in 2012 and Ext. CW-5/A is in the handwriting of the accused, as such, it can be safely concluded that accused borrowed Rs. 50,000 from complainant otherwise there was no occasion to sign receipt Ext.
CW-5/A and to issue cheque Ext. CW-2/B. .
16. Since there is no denial on behalf of accused with regard to issuance of cheque and signatures thereupon, plea taken by him with regard to issuance of blank security cheque is of no relevance. Burden is always on the drawer of the cheque to establish that the date, amount and the payee's name are written by somebody else, without the knowledge and consent of the drawer. There is presumption in favour of the holder of the cheque that the cheque was issued in discharge of legally enforceable liability/debt.
17. Having scanned the entire material available on record, this court finds that the complainant proved on record that he lent Rs. 50,000/- to the accused, who with a view to discharge his liability, issued cheque, Ext.
CW-2/B but the same was dishonoured on its presentation, as such, complainant had no option but to institute proceedings under S. 138 of Act. If the evidence, be it ocular or documentary adduced on record by complainant is perused, it can be safely concluded that the complainant has proved all the basic ingredients as required to be proved to bring the case within the ambit of S. 138 of the Act.
18. Consequently in view of this above, this court finds no merit in the case and same is dismissed. Judgments of conviction and order of sentence passed by learned Courts below are upheld. Accused is directed to surrender forthwith to undergo sentence, if not already served.
::: Downloaded on - 08/08/2022 20:02:21 :::CIS 13Sum of Rs. 50,000/- lying deposited in Registry of this Court is ordered to be released in favour of complainant if not already released, by remitting the same in his savings bank account, details whereof shall be furnished by learned counsel for the respondent within one week..
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19. The petition stands disposed of in the aforesaid terms, alongwith all pending applications.
(Sandeep Sharma)
Judge
August 8, 2022
(Vikrant)
r to
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