Gauhati High Court
Binoy Bothra vs Jitendra Singh And Anr on 6 May, 2019
Equivalent citations: AIRONLINE 2019 GAU 685
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/14
GAHC010125682014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 310/2014
1:BINOY BOTHRA, ALIAS BINOY KUMAR BOTHRA
S/O- LT. AJIT SINGH BOTHRA,
C/O- BOTHRA BUILDING, M.S. ROAD,
CHAWAL PATTY, P.S.- FANCY BAZAR,
GUWAHATI- 781001.
VERSUS
1:JITENDRA SINGH and ANR
S/O- LT. BALWANT SINGH,
C/O- BALAWANT GARAGE,
M.S. ROAD, ATHGAON,
GUWAHATI- 781001, ASSAM.
2:THE STATE OF ASSA
Advocate for the revision accused/petitioner: Mr. O.P. Bhati,
Mr. T.C. Das,
Mr. P. Sarma,
Mr. J. Bhati,
Mr. H.K. Bora and
Mr. S. Khan,
Advocate for the respondents: Mr. V.K. Chopra and
Mr. S.K. Singh.
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of hearing & judgment: 06.05.2019.
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JUDGEMENT AND ORDER (ORAL)
Heard Mr. O.P. Bhati, learned counsel appearing for and on behalf of the petitioner as well as Mr. V.K. Chopra, learned counsel, representing the respondent No.1.
2. The present revision has been preferred assailing the judgment and order passed by the two forums, whereby the present petitioner has been convicted u/s.138 of the N.I. Act, to simple imprisonment for one year and also to pay compensation of Rs.8 lacs to the complainant, u/s.357(3) of the CrPC and also to pay a sum of Rs.5000/- as cost.
3. Briefly sated it can be stated that complainant Jitendra Singh filed a case u/s.138 of the N.I. Act alleging that the accused Binoy Bothra @ Binoy Kumar Bothra approached to him with a proposal that he would arrange for land for the complainant as he was a land broker and on his assurance, the complainant paid him Rs.5 lacs on 07.05.2009, to arrange for the land within 30 days. The accused also assured him to refund the amount in case of non-arrangement of the land. However as the accused failed to arrange the land as assured, so he issued a cheque of Rs.5 lacs to the complainant on 07.06.2009. On 14.09.2009, while the cheque was deposited to the concerned Bank, the same was returned unserved due to insufficient fund. Thereafter the complainant after serving legal notice to the accused demanding the cheque amount, filed a complaint u/s.138 of the N.I. Act, as the accused neglected to pay the amount within the stipulated period.
4. The accused/petitioner faced the trial and denied the charge u/s.138 of the N.I. Act.
5. During the course of trial, the complainant examined himself and two other witnesses (Bank officials) and the defence examined none. The learned trial Court formulated the following four points for consideration:
(1) Whether the accused issued the cheque for the discharge of any legally enforceable debt or liability?
Page No.# 3/14 (2) Whether the cheque was dishonoured for insufficient funds in the account of the accused? (3) Whether the accused received the demand notice issued by the complainant regarding the dishonour of the cheque?
(4) Whether the accused has committed the offence under section 138 of the Negotiable Instruments Act, 1881?
6. Having regard to the matters on record, the learned trial Court appreciated the evidence in detail and answered all the above four points in favour of the complainant and thereby come to a finding that the cheque in question was issued by the accused/petitioner in discharge of legally enforceable debt and there was no sufficient fund in the accounts of the accused to honour the cheque and the demand notice was duly served upon the accused/petitioner. Finally the learned trial Court found and hold that the accused person has committed the offence u/s.138 of the N.I. Act and by the order dated 28.02.2013, convicted the accused/petitioner to simple imprisonment for one year and further to pay compensation of Rs.8 lacs to the complainant (as against the cheque amount of Rs.5 lacs) and in default of compensation, he was sentenced to simple imprisonment for three months.
7. While the aforesaid findings was assailed before the appellate Court, the learned appellate Court on appreciation of the matter on record and the evidence thereof, has affirmed the judgment of the trial Court, vide its order dated 26.05.2014, passed in Criminal Appeal No.63/2013.
8. Assailing the aforesaid judgment and order, the present revision has been preferred on the ground that both the Courts have failed to appreciate the evidence in proper perspective of law and has failed to look into the illegalities that have been cropped into wile upholding the judgment of the trial Court. It has been contended that the complainant has measurably failed to discharge his burden to prove that such loan has ever been given to the petitioner and without any supporting documents/ evidence and the Courts below have erred in deciding the facts that the complainant has proved his case.
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9. I have considered the submission of learned counsel for the petitioner as well as the learned counsel for the respondent.
10. According to Mr. O.P. Bhati, learned counsel for the petitioner, the accused/ petitioner has fully rebutted the case of the complainant that he has not provided any amount to the accused/petitioner, as because the complainant has not filed any income tax return to show his actual income and capacity to pay such huge amount. On the next, it is stated that there being no supporting evidence regarding such payment and non-proof of actual income by producing income tax return etc., coupled with the facts that there is no any written documents and money receipt etc. towards such payment to the accused/petitioner, the complainant/respondent has failed to prove such payment to the accused/petitioner. Furthermore, it has been contended that the accused/ petitioner has sufficiently rebutted the presumption by way of plausible defence that he has paid Rs.5 lacs towards arrangement of a Tata Sumo vehicle by the complainant but the complainant has not provided the vehicle to him.
11. In this context, the evidence of the complainant (respondent No.1 herein), particularly has been referred to. This Court has also gone through the evidence of the said complainant/respondent as well as the other evidence on record also.
12. According to the learned counsel for the petitioner, he has raised his probable defence by way of cross-examination of the complainant and relying to the decisions in: (i) (2006) 6 SCC 39 (M.S. Narayana Menon alias Mani vs. State of Kerala and another), (ii) (2013) 3 SCC 86 (Vijay vs. Laxman and another) and (iii) 2011 (2) GLT 757 (Jose Pullan vs. Uma Jasrasaria), it has been contended that even without adducing rebuttal evidence, the petitioner can sufficiently rebut the case of the other side by raising plausible defence, which the petitioner has successfully done in the present case.
13. I have gone through the decisions, that has been rendered and referred by the petitioner. In the aforesaid decisions, it has been held that if the accused is able to raise a probable defence which creates doubts about the existence of legally enforceable debt or liability, the prosecution can fail. The Page No.# 5/14 accused can rely on the materials submitted by the complainant in order to raise such defence and it is conceded to that in the same case that the accused need not require to adduce evidence of his own.
14. The learned counsel for the petitioner has given utmost stress upon the facts that the respondent himself has failed to prove his proper income to show his ability to pay such huge amount of Rs.5 lacs to the accused, being a businessman having garage, while he failed to prove any supporting documents to prove his ability.
15. On the contrary, the learned counsel for the respondent Mr. V.K. Chopra has vehemently opposed such submission of learned counsel for the petitioner that the income of the respondent/petitioner is duly proved by adducing cogent and convincing evidence whereby he has proved that the cheque was signed and issued by the accused/petitioner on assurance of arranging land in his favour. It is pointed out that there is no denial on issuance of cheque to the complainant and even no denial of taking of money from the complainant in course of trial.
16. It has been vehemently contended that mere assailing the case that he has not issued the cheque as against the liability but against the fact that the complainant is to provide a vehicle to him, is not enough to rebut the presumption under the law. It has also been contended that all the entire aspect of fact as well as law have been appreciated by the trial Court as well as the appellate Court and this Court being a revisional Court, has limited scope to interfere to the findings of the Courts below unless any perversity in the decisions, arrived by the Courts below. The learned counsel also contends that there is no such illegality in the aforesaid order, which may call interference. In this regard, the learned counsel for the respondent has led this Court towards the observation and findings by both the Courts below, which have elaborately dealt with the matter. Referring to the case relied by the petitioner, it has been submitted that the same are given in different pretext which are not similar to the present case, where it was not certain about the issuance of the cheque, date of Page No.# 6/14 issuance of cheque and payment, etc., whereas in the present case there is no denial about such issuance of cheque. The accused in his statement u/s.313 CrPC also concedes to the issuance of the cheque but on the different context.
17. Refuting the contention of the learned counsel for the petitioner, it has been urged before this Court that the submission of the petitioner that he has properly rebutted the case of the complainant is not at all true. It has been submitted that it was the evidence of the PW.1 that the accused/petitioner approached to him being a land broker for arrangement of a piece of land and against the said assurance, the complainant paid the amount, there is no denial on the aforesaid aspect, that the accused never approached to him. On the next, as regard the contention of the accused/petitioner that he has given such cheque for Rs.5 lacs to the complainant to provide him a Tato Sumo vehicle, holds no water, as there was nothing to show that the complainant deal with sale of the vehicle but he is simply an owner of a garage. Accordingly it has been held that by giving one line suggestion to the complainant, it cannot be stated that the petitioner has rebutted the presumption that has accrued to the complainant under the provisions of the N.I. Act. As per Section 118 of the N.I. Act, the holder of the cheque is presumed to be the holder in due course unless properly rebutted. On the other hand, it is submitted that although the accused/petitioner has submitted that the complainant/respondent has no capacity to pay such amount in advance but there is no any suggestion to the complainant, at the time of evidence.
18. As regards the another contention that has been raised by the learned counsel for the petitioner that the complainant/respondent has not produced any income tax return to show that such an amount was given to him, it has been refuted by the learned counsel for the petitioner that as the nature of transaction itself reveals that it was not a business transaction on the part of the complainant so as to enter into the Books of Account to reflect in the income tax return. So such a contention again is not sustainable.
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19. In this regard, the Section 14 and Section 44AA of Income Tax Act has been referred by the learned counsel for the respondent as to under what circumstances such an amount has to be entered into the Books of Accounts. Reference has also been made to the Financial Accounting Fundamentals which reveals that business is treated as a distinct and separate entity from the individuals who own it and accordingly accountants record transaction. Similarly financial accounting business entity concept, business is considered separate and distinct from the owners of the enterprise. One must, for the purposes of book-keeping, keep the owner and his business quite separate. Only those economic events which affect the business unit are recorded. Assuming that the business unit is a separate entity, accounting records are kept only from the point of view of the business unit and not the owners.
20. Relying to the decisions of: (i) (2008) 7 SCC 655, Mallavarapu Kasivisweswara Rao vs. Thadikonda Ramulu Firm and another; (ii) (2001) 6 SCC 16, Hiten P. Dalal vs. Bratindranath Banerjee as well as (iii) Bir Singh vs. Mukesh Kumar reported in (2019) 106 ACC 923, it has been submitted that unless the accused/petitioner failed to rebut the presumption created under the N.I. Act, the accused cannot succeed to deny such legal presumption under the law. Relevant observation of the decision in Hiten P. Dalal (Supra) is extracted here-in-below for ready reference:
"23. Judicial statements have differed as to the quantum of rebutting evidence required. In Kundan Lal Rallaram vs Custodian, Evacuee Property, Bombay AIR 1961 SC 1316, this Court held that the presumption of law under Section 118 of Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised under Section 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai vs State of Maharashtra AIR 1964 SC 575, where this Court reiterated the principle enunciated in State of Madras vs Vaidyanath Iyer (Supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be Page No.# 8/14 as light as it is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted......".
21. Similarly the learned counsel for the respondent relied on the decision of Bir Singh vs. Mukesh Kumar (Supra), wherein the Hon'ble Apex Court made observation in para 16, 36 and 37, to submit that the revisional Court has limited scope to exercise jurisdiction on the question of facts which have already been decided by the Courts below. I have gone through the necessary observations referred above.
22. Now let us turn to the facts in hand for appreciation as to whether the Court below have properly appreciated the facts as well as law in proper perspective and as to whether there is any perversity in the findings thereof.
23. As has been found from the complaint petition as well as from the evidence on record the on being approached by the accused/petitioner, the complainant paid Rs.5 lacs to him on his assurance to arrange a plot of land for him. Such an amount was paid on 07.05.2009 and the cheque was issued on 07.06.2009 and thereafter the complainant lodged the complaint on 13.11.2009. Prior to institution of the case, the complainant also issued legal notice to the accused person demanding the money. There is no denial about such receipt of demand notice. But the accused never responded to such legal notice to say about his stand. No response was forthcoming as to why he did not respond to the said legal notice to say that the said cheque was issued for arrangement of the vehicle by the complainant. This aspect of-course bears an impact on the issue because since after filing of the case in 2009, the accused/petitioner for the first time, in course of evidence in August, 2012 has raised the issue that the cheque was issued only to purchase a Tata Sumo vehicle. Such a contention raised by Page No.# 9/14 the petitioner is not maintainable as because if a person after taking an amount of Rs.5 lacs failed to fulfill his promise, he will not remain silent for the inaction on the part of the other party. On the next, the accused except mere suggestion to the complainant on the above point, no any rebuttable evidence is adduced by him. Such a suggestion cannot be equated to rebuttable evidence. In every criminal trial, there is a denial but whether for only denial of a case, on the part of the accused, case of the other side can be termed as falsity of the case. Obviously not.
24. We are aware that the provisions under the N.I. Act are special which raise statutory presumption under the law and Section 118 as well as Section 139 of the Act, being relevant are extracted here-in-below:
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;
(b) as to date --that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance --that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer --that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements --that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps --that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course --that the holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
Page No.# 10/14 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.
25. Although several decisions have been referred to by both the parties, certain other relevant decisions can be referred are: (i) Rohitbhai Jivanlal Patel Vs. State of Gujarat and Anr. (2019) 5 SCALE 138 and (ii) Kishan Rao Vs. Shankargouda (2018) 8 SCC 165, in which they have also referred and relied to the earlier decision of Hiten P. Dalal vs. Bratindranath Banerjee (Supra) and Girishbhai Natwarbhai Patel vs. State of Gujarat, (2006) Crl. Law Journal 3378. But in the context it will be more suitable to discuss and refer to the recent decisions on the point.
26. We may profitably reproduce the observation of the Hon'ble Apex Court in Bir Singh (Supra), in para 16, 21, 22, 23, 36, 37 and 38 for ready reference:
16. The short question before us is whether the High Court was right in reversing the concurrent factual findings of the Trial Court and of the Appellate court in exercise of its revisional jurisdiction. The questions of law which rise in this appeal are, (i) whether a revisional Court can, in exercise of its discretionary jurisdiction, interfere with an order of conviction in the absence of any jurisdictional error or error of law and (ii) whether the payee of a cheque is disentitled to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, of a cheque duly drawn, having been issued in discharge of a debt or other liability, only because he is in a fiduciary relationship with the person who has drawn the cheque.
..................................................
21. In passing the impugned judgment and order dated 21-11- 2017, the High Court mis-construed Section 139 of Negotiable Instruments Act, which mandates that unless the contrary is proved, it is to be presumed 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. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque.
22. In Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16, this Court held that both Section Page No.# 11/14 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in State of Madras vs. Vaidyanatha Iyer AIR 1958 SC 61, this Court held that it was obligatory on the Court to raise this presumption.
23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact as held in Hiten P. Dalal (supra). ..................................................
36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act.
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 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.
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.
27. Similarly we may refer to the decision in Rohitbhai Jivanlal Patel (Supra), wherein the Honble Apex Court on the aspect of preponderance of probabilities observed as follows:
16. On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not Page No.# 12/14 exist or that its non- existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under Section 118 and 139 of the NI Act. This court stated the principles in the case of Kumar Exports (supra) as follows:
"20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non- existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for 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.
21. The accused has also an option to prove the non-existence of consideration and debt or liability 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 Page No.# 13/14 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, therefore, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
28. In Kishan Rao (Supra), the Hon'ble Supreme Court has also held that the trial Court was justified by drawing presumption u/s.139 of the N.I. Act, in absence of rebuttable evidence, while the accused did not come to the witness box to support his case.
29. Thus taking into all account and after going through the impugned judgment of both the Courts below, we find that the trial Court as well as the appellate Court have appreciated all the actual as well as legal aspects that the complainant/respondent was the holder of the cheque in due course of law and there being no rebuttal evidence on the matter, the offence u/s.138 of the N.I. Act is made out and there appears no any irregularity or illegality in the findings so as to call for interference. There being no any such perversity in the aforesaid judgment and order in the parlance of the law as well as the pronouncement of the Apex Court, this Court declined to interfere into the findings as arrived.
30. The learned counsel for the petitioner at this stage made a submission that the petitioner is ready to pay the amount, as awarded by the Court and he may be exonerated from the substantive sentence that has been awarded by the Court. The learned counsel for the respondent has however contended that in case of fine only, the Court can impose fine to the tune of twice of the cheque amount which should be Rs.10 lacs in the present case apart from the factum of interest. The learned counsel for the respondent has however raised no objection if interest @ 8% per annum is awarded against the awarded sum of Rs.8 lacs, as ordered by the learned trial Court.
31. The object of the provisions of the N.I. Act is to ensure repayment rather than punishing a man and it is to be noted that both the parties are in legal battle since 2009 and it is submitted that the Page No.# 14/14 financial condition of the accused/petitioner is not so well by this time.
32. Taking note of all above and the submission of learned counsel for both the parties, while maintaining the conviction u/s.138 of the N.I. Act, the sentence is converted to fine of Rs.8 lacs along with cost of Rs.5,000/- already imposed, with interest @ 8% per annum on the amount of Rs.8 lacs, from the date of order of the trial Court.
33. The accused/petitioner will deposit the said amount before the trial Court within three months from today, in default of payment of the same, he is sentenced to simple imprisonment for one year.
34. With the above, the petition stands disposed.
35. Return the LCR immediately along with the copy of the judgment.
JUDGE Comparing Assistant