Himachal Pradesh High Court
Balak Ram vs Ajay Kumar Sharma And Anr on 16 September, 2024
Neutral Citation No. ( 2024:HHC:8601 )
THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 98 of 2024
.
Reserved on: 11.09.2024
Date of Decision: 16.09.2024
Balak Ram
….Petitioners
Versus
Ajay Kumar Sharma and Anr.
….Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? No
For the Petitioner : Mr. Jia Lal Thakur, Advocate vice Mr.
G.R. Palsra, Advocate.
For Respondent No.1 : Mr. Ajay Sharma, Advocate, vice Mr.
Peeyush Verma, Advocate.
For Respondent No.2/State : Mr. Prashant Sen, Deputy Advocate
General.
Rakesh Kainthla, Judge
The present revision is directed against the judgment
dated 02.01.2024passed by learned Sessions Judge, Mandi (learned
First Appellate Court), vide which the judgment dated 24.04.2023
and order of sentence dated 08.05.2023 passed by learned Additional
Chief Judicial Magistrate, Court No.1, Mandi, District Mandi (learned
Trial Court) were upheld. (Parties shall hereinafter be referred to in the
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same manner as they were arrayed before the learned Trial Court for
convenience).
.
2. Briefly stated, the facts giving rise to the present revision
are that the complainant filed a complaint before the learned Trial
Court against the accused for the commission of an offence
punishable under Section 138 of the Negotiable Instruments Act (in
short ‘NI Act’). It was asserted that the accused borrowed
₹3,50,000/- from the complainant on 28.08.2017 with the promise
to repay it within a few months. The accused issued a post-dated
cheque dated 23.01.2018 for ₹3,50,000/- to the complainant drawn
on Punjab National Bank, Branch Rewalsar in the discharge of his
legal liability. The complainant presented the cheque at the counter
of the Bank on 15.03.2018 but it was dishonoured with the remarks
‘funds insufficient’. The complainant issued a legal notice to the
accused asking him to pay the amount within 15 days from the date
of the receipt of the notice. The notice was served upon the accused
and the accused issued a reply to the legal notice. He failed to pay the
amount; hence, the complaint was filed against the accused.
3. Learned Trial Court found sufficient reasons to summon
the accused. When the accused appeared, a notice of accusation was
put to him for the commission of an offence punishable under
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Section 138 of the NI Act. The accused pleaded not guilty and claimed
to be tried. The complainant examined himself (CW1) and Bhoop
.
Singh (CW2) to prove his case.
4. The accused in his statement recorded under Section 313
of Cr.P.C. admitted that the cheque carried his signatures. He
admitted that he had received a notice and said that he sent a reply to
the legal notice. He claimed that he was not liable to pay any amount
to the complainant and the witnesses deposed against him falsely.
He stated that the complainant, Ajay Kumar, was his tenant. He was
an LIC agent. The accused took 3-4 policies from the complainant
and the complainant obtained blank cheques from him. The
complainant misused his blank cheques. He (the complainant) also
handed over the blank cheque to someone in Punjab. Statements of
Sanjay Kumar (DW1) and the accused (DW2) were recorded in
defence.
5. The learned Trial Court held that the accused admitted
his signatures on the cheque. He examined the registration clerk to
prove the sale deed of the land and the house sold by the accused to
the complainant. The plea taken by the accused that he had handed
over the blank cheques to the complainant in connection with the
LIC policies was not believable, as he had failed to prove any policies
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issued by the complainant in favour of the accused. The accused
claimed that he retired from CRPF and was on the duty of the
.
Government of India in England and China. The status of the accused
would make it difficult to rely upon his version that he had issued a
signed blank cheque to the complainant. The cheque carried with it a
presumption of consideration and the accused had failed to rebut
this presumption by leading satisfactory evidence. The sale deed
does not show that any payment was due and the defence of the
accused that a cheque was issued for sale consideration was not
substantiated. The cheque was dishonoured with an endorsement of
‘insufficient funds’. The accused had received the notice but he
failed to pay the amount; hence, the accused was convicted of the
commission of an offence punishable under Section 138 of the NI Act
and he was sentenced to pay a fine of ₹4,50,000/- and in default of
payment of fine to further undergo simple imprisonment for one
month.
6. Being aggrieved from the judgment and order passed by
the learned Trial Court, the accused preferred an appeal, which was
decided by learned Sessions Judge, Mandi (learned Appellate Court).
The learned Appellate Court concurred with the findings recorded by
the learned Trial Court that the accused had failed to rebut the
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presumption of consideration attached to the cheque. His plea that
he had issued the cheques to the complainant towards the payments
.
of LIC policy was not proved. The cheque was dishonoured due to
insufficient funds and the accused failed to pay the amount despite
the receipt of the valid notice of demand. Hence, he was rightly
convicted and sentenced by the learned Trial Court and no
interference was required with the judgment and order passed by the
learned Trial Court. r
7. Being aggrieved from the judgments and order passed by
the learned Courts below, the accused has filed the present revision
asserting that the learned Courts below failed to properly appreciate
the material. The accused had taken a probable defence that the
complainant was his tenant, who was the LIC agent. The accused had
taken 3-4 policies from the complainant and the complainant
obtained blank cheques from the accused for the payment of
premium. The accused had sold the land to the complainant and
there was no necessity for the accused to borrow any money from
the complainant. The accused was a pension holder and he was
getting rent from the building/shop. The complainant misused the
blank cheques obtained from the accused for the payment of the
premium of policies. The sale deed executed in favour of the
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complainant was challenged by the son and daughter-in-law of the
accused and the civil suit is pending disposal. The complainant sold
.
the land to some other person to defeat the legitimate claim of the
accused. The complainant stated that he had paid ₹3,50,000/- to the
accused through a cheque but he failed to produce any cheque. The
complainant had issued two cheques to the accused; one for the price
of the land and another for the needs of the accused. The accused had
not issued any cheque in favour of the complainant in the discharge
of his legal liability. The version of the accused was made probable
by the cross-examination of the complainant. The cheque was given
to the complainant as per complaint on 29.08.2017 but the date of
the cheque was mentioned as 23.01.2018. The complaint filed by the
complainant was time-barred from the date of the issuance of the
cheque. The accused had rebutted the presumption arising out of
Sections 139 and 118 of the NI Act. Therefore, it was prayed that the
present revision be allowed and the judgments and order passed by
learned Courts below be set aside.
8. I have heard Mr Jia Lal Thakur, Advocate, vice Mr. G.R.
Palsra, learned counsel representing petitioner/accused, Mr Ajay
Sharma, learned counsel representing respondent No.1/complainant
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and Mr Prashant Sen, learned Deputy Advocate General for
respondent No.2/State.
.
9. Mr. Jia Lal Thakur, Advocate, learned counsel
representing petitioner/accused submitted that the accused is
innocent and he was falsely implicated. The defence taken by him
that he had issued the blank cheque towards the payment of LIC
premium was highly probable. Learned Courts below erred in
rejecting this defence. There was a discrepancy regarding the date of
the issuance of the cheque. The plea of the accused that a false
complaint was filed when the sale deed executed by the accused in
the complainant’s favour was challenged is highly probable.
Therefore, he prayed that the present revision be allowed and the
judgments and order passed by learned Courts below be set aside.
10. Mr. Ajay Sharma, learned counsel representing
respondent No.1/complainant supported the judgments and order
passed by learned Courts below. He submitted that there is no
discrepancy regarding the date of issuance of the cheque, as the
complainant had specifically mentioned that the accused had issued
a post-dated cheque. Learned Trial Court had rightly held that the
accused was a member of the CRPF, who was awarded gallantry
awards and had served abroad. He could not be expected to deal
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lightly with the cheque and his testimony was rightly rejected by
learned Courts below. Therefore, he prayed that the present revision
.
be dismissed.
11. Mr. Prashant Sen, learned Deputy Advocate General for
respondent No.2/state adopted the submissions of Mr. Ajay Sharma,
and prayed that the present revision be dismissed.
12. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
13. 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 an
appellate jurisdiction and it can only rectify the patent defect, errors
of jurisdiction or the law. It was observed on page 207: –
“10. Before adverting to the merits of the contentions, at the
outset, it is apt to mention that there are concurrent findingsof conviction arrived at by two courts after a detailed
appreciation of the material and evidence brought on record.
The High Court in criminal revision against conviction is not
supposed to exercise the jurisdiction like 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
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Neutral Citation No. ( 2024:HHC:8601 )jurisdiction or law. There has to be a 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 reverse those findings.
14. This position was reiterated in State of Gujarat v. Dilipsinh
Kishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was observed:
“13. The power and jurisdiction of the Higher Court under
Section 397 Cr. P.C. which vests the court with the power tocall for and examine records of an inferior court is for the
purposes of satisfying itself as to the legality and regularities
of any proceeding or order made in a case. The object of this
provision is to set right a patent defect or an error ofjurisdiction or law or the perversity which has crept into such
proceedings. It would be apposite to refer to the judgment of
this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC
460 where the scope of Section 397 has been considered and
succinctly explained as under:
“12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the legalityand regularity of any proceedings or order made in a case.
The object of this provision is to set right a patent defect
or an error of jurisdiction or law. There has to be a well-
founded error and it may not be appropriate for the courtto scrutinise the orders, which upon the face of it bear a
token of careful consideration and appear to be in
accordance with the law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based
on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These are
not exhaustive classes but are merely indicative. Each
case would have to be determined on its own merits.
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13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the
inbuilt restrictions is that it should not be against an.
interim or interlocutory order. The Court has to keep in
mind that the exercise of revisional jurisdiction itself
should not lead to injustice ex-facie. Where the Court is
dealing with the question as to whether the charge hasbeen framed properly and in accordance with law in a
given case, it may be reluctant to interfere in the exercise
of its revisional jurisdiction unless the case substantially
falls within the categories aforestated. Even framing ofcharge is a much-advanced stage in the proceedings
under the CrPC.”
15. The present revision has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
16. The accused admitted in his cross-examination that the
cheque (Ext. CW1/A) bore his signature inside the red circle. He also
admitted that he had handed over the cheque to the complainant. He
stated that complainant Ajay Kumar had his complete cheque book
having 3-4 cheques. He had taken LIC policies from the complainant
in the year 2017 but he could not produce any copy of the policy. He
volunteered to say that all the records were maintained by the
complainant. He admitted that the receipts were sent to him by LIC
through post. He volunteered to say that the complainant used to
keep all the documents with him. He denied that the complainant
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did not have a chequebook with him and that he was making a false
statement.
.
17. The cross-examination of this witness shows that his
plea that he had handed over the signed chequebook to the
complainant for payment of LIC receipts has not been established.
He has not produced any LIC policy issued by the complainant. He
claimed that all the records were with the complainant. It is difficult
to believe this version. As per the accused, the policy was issued in
his name and he was to get the money on maturity, therefore, he had
no justification to keep the record with the complainant. He claimed
that he had handed over the blank signed cheque to the complainant
towards the payment of LIC policy but he has not shown any such
justification. The premium is a fixed amount and there was no
reason to hand over the blank signed cheque. Hence, the learned
Courts below had rightly rejected the plea taken by the accused.
18. The accused examined Sanjay Kumar (DW1) to prove the
sale deed executed by him in favour of the complainant for a
consideration of ₹50,000/-. The relevance of such evidence is not
apparent. The accused has not disputed the execution of the sale
deed. Even the complainant admitted in his cross-examination that
he had purchased half of the share. Thus, the examination of the
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witness will not help in proving the defence that the accused had
issued blank cheques to the complainant.
.
19. Complainant in his cross-examination admitted that a
civil suit was filed by the son and daughter-in-law of the accused
against him in February, 2018 and he had filed the complaint in
March 2018. This admission will not help the accused. It was never
suggested to the complainant that the accused was also a party to the
civil suit. He stated that a civil suit was filed by the son and
daughter-in-law of the accused; hence, the filing of the complaint
would not have pressurized the son and daughter-in-law, who had
filed the suit adverse to the interest of the accused.
20. It was submitted that the complainant stated in his
cross-examination that the cheque was handed over to him on
29.08.2017 which is contrary to the record, as the cheque is dated
23.01.2018. The complainant specifically stated in Para 1 of his proof
affidavit (Ext. CW1/A) that the accused had handed over a post-dated
cheque to him on 29.08.2017 bearing the date 23.01.2018 for
₹3,50,000/-. Thus, the complainant was quite categorical in
mentioning the date of handing over of the cheque as 29.08.2017 and
he explained that the cheque was post-dated. Thus, there is no
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discrepancy between the complaint, proof affidavit and the cross-
examination of the complainant.
.
21. The accused claimed that the complainant had misused
the cheque handed over to him. He has not shown that he has taken
any steps to stop the misuse. He has not stated that he wrote any
letter to the bank asking it to stop the payment or any complaint to
the police regarding the misuse of the cheque. Learned Trial Court
had rightly held that the accused claimed himself to be a member of
the CRPF, who had received the Gallantry Awards from the President
and served in China and England. He was not an illiterate person who
would hand over a blank signed cheque to someone. He had travelled
extensively and would have been aware of the significance of the
blank signed cheque. Hence, the learned Trial Court had rightly
rejected the version of the accused that he had handed over blank
signed cheques to the complainant.
22. Learned Courts below had rightly held that once the
signatures on the blank cheque were not disputed, a presumption of
consideration would arise. It was laid down by this Court in Naresh
Verma vs. Narinder Chauhan 2020(1) Shim. L.C. 398 that where the
accused had not disputed his signatures on the cheque, the Court has
to presume that it was issued in discharge of legal liability and the
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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 bylearned 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 uponthe 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 berebutted……”
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.
23. Similar is the judgment in Basalingappa vs. Mudibasappa
2019 (5) SCC 418 wherein it was held:
“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.”
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24. This position was reiterated in Kalamani Tex v. P.
Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25 : (2021) 2
.
SCC (Cri) 555: 2021 SCC OnLine SC 75wherein it was held at page 289:
“13. Adverting to the case in hand, we find on a plain reading
of its judgment that the trial court completely overlooked theprovisions 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 beencrystallised by this Court in Rohitbhai Jivanlal Patel v. State of
Gujarat [Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18SCC 106, para 18: (2020) 3 SCC (Civ) 800 : (2020) 3 SCC (Cri) 575]
in the following words : (SCC pp. 120-21, para 18)
“18. In the case at hand, even after purportedly drawingthe 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 offunds for advancing loan to the accused and want of
examination of relevant witnesses who allegedlyextended 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 suchpresumption, 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.”
14. Once the 2nd appellant had admitted his signatures on the
cheque and the deed, the trial court ought to have presumed
that the cheque was issued as consideration for a legally
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enforceable debt. The trial court fell in error when it called
upon the respondent complainant to explain the
circumstances under which the appellants were liable to pay.
Such 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.”
25. Similar is the judgment in APS Forex Services (P) Ltd. v.
Shakti International Fashion Linkers (2020) 12 SCC 724, 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 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
thereafter a fresh consolidated cheque of ₹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 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 in nature 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.
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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 in nature. However, to rebut the
presumption, the accused was required to lead the evidence
that the full amount due and payable to the complainant had
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 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 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.
26. Learned Courts below had rightly held that there is a
presumption under Section 139 of the N.I. 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 v.
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Sripad, (2022) 1 SCC 742: (2022) 1 SCC (Civ) 512: 2021 SCC OnLine SC
788 as under at page 747:
.
“12. 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 Exts. P-6 and P-2 are not disputed. Ext.
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 favourof the appellant who was the holder of the cheque. Section 139
of the NI Act reads as hereunder:
“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.”
13. 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 passing of the consideration
would arise as provided under Section 118(a) of the NI 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 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.”
14. 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 v. Sankaran
Vaidhyan Balan [K. Bhaskaran v. Sankaran Vaidhyan Balan,
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(1999) 7 SCC 510: 1999 SCC (Cri) 1284] wherein it is held as
hereunder: (SCC pp. 516-17, para 9)
“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 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
[Sankaran Vaidhyan Balan v. K. Bhaskaran, Criminal Appeal
No. 234 of 1995, order dated 23-10-1998 (Ker)] by the High
Court. It is not now open to the accused to contend
differently on that aspect.”
15. The learned counsel for the respondent has however
referred to the decision of this Court
in Basalingappa v. Mudibasappa [Basalingappa v. Mudibasappa,
(2019) 5 SCC 418: (2019) 2 SCC (Cri) 571] wherein it is held as
hereunder: (SCC pp. 432-33, paras 25-26)
“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 thecheque 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 accused to raise the
probable defence. The standard of proof for rebutting
the presumption is that of preponderance of
probabilities.
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::: Downloaded on – 17/09/2024 20:30:37 :::CIS
20
Neutral Citation No. ( 2024:HHC:8601 )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 persuasiveburden.
25.5. It is not necessary for the accused to come in the
witness box to support his defence.
26. Applying the preposition of law as noted above, in 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 intois as to whether any probable defence was raised by the
accused. In cross-examination of PW 1, when the specific
question was put that a cheque was issued in relation to a
loan of Rs 25,000 taken by the accused, PW 1 said that he
does not remember. PW 1 in his evidence admitted that heretired in 1997 on which date he received a monetary
benefit of Rs 8 lakhs, which was encashed by the
complainant. It was also brought in evidence that in theyear 2010, the complainant entered into a sale agreement
for which he paid an amount of Rs 4,50,000 to BalanaGouda towards sale consideration. Payment of Rs 4,50,000
being admitted in the year 2010 and further payment of
loan of Rs 50,000 with regard to which Complaint No. 119 of2012 was filed by the complainant, copy of which complaint
was also filed as Ext. D-2, there was a burden on the
complainant to prove his financial capacity. In the years
2010-2011, as per own case of the complainant, he made a
payment of Rs 18 lakhs. During his cross-examination,
when the financial capacity to pay Rs 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.”
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Neutral Citation No. ( 2024:HHC:8601 )
16. 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.
17. On the position of law, the provisions referred to in
Sections 118 and 139 of the NI Act as also the enunciation of
law as made by this Court need no reiteration as there is no
ambiguity whatsoever. In, Basalingappav. Mudibasappa
[Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC
(Cri) 571] 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 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 amount involved. However, the legal position
relating to the presumption arising under Sections 118 and 139
of the NI Act on signature being admitted has been reiterated.
Hence, whether there is a rebuttal or not would depend on the
facts and circumstances of each case.”
27. This position was reiterated in Tedhi Singh v. Narayan
Dass Mahant, (2022) 6 SCC 735: (2022) 2 SCC (Cri) 726 : (2022) 3 SCC
(Civ) 442: 2022 SCC OnLine SC 302 wherein it was held at page 739:
“8. It is true that this is a case under Section 138 of the
Negotiable Instruments Act. Section 139 of the NI 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 debt or other liability.
This presumption, however, is expressly made subject to the
position being proved to the contrary. In other words, it is::: Downloaded on – 17/09/2024 20:30:37 :::CIS
22
Neutral Citation No. ( 2024:HHC:8601 )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, in fact,
which has also been adverted to in Basalingappa [Basalingappa.
v. Mudibasappa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571], this
Court notes that Section 139 of the NI Act is an example of
reverse onus (see Rangappa v. Sri Mohan [Rangappa v. Sri
Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC(Cri) 184]). 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…”
28.
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 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 andthe signature and the issuance of the cheque are not disputed
by the accused, in that case, the onus will shift upon theaccused 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.”
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Neutral Citation No. ( 2024:HHC:8601 )
29. This position was reiterated in Rajesh Jain v. Ajay Singh,
(2023) 10 SCC 148: 2023 SCC OnLine SC 1275 wherein it was observed
.
at page 161:
33. The NI Act provides for two presumptions: Section 118 and
Section 139. Section 118 of the Act inter alia directs that it shallbe 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 underSection 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 for 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 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]]
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Neutral Citation No. ( 2024:HHC:8601 )
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 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 toreach the conclusion in the absence of evidence to
the contrary from the opponent but if the opponent
does offer evidence to the contrary (sufficient tosatisfy 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
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Neutral Citation No. ( 2024:HHC:8601 )
Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441: (2010) 4
SCC (Civ) 477: (2011) 1 SCC (Cri) 184: AIR 2010 SC 1898]]”
30. Therefore, the Court has to start with the presumption
.
that the cheque was issued in discharge of legal liability and the
burden is upon the accused to prove the contrary.
31. The statement of the accused was insufficient to rebut the
presumption. There is nothing in the cross-examination of the
complainant to show that the cheque was issued without
consideration. The complainant categorically denied that blank
cheques were handed over to him in connection with the LIC policies
and a denied suggestion does not amount to any proof. Thus, the
learned Courts below had rightly held that the presumption was not
rebutted.
32. It was submitted that the complainant admitted in his
cross-examination that he was an income tax payee and had shown
the loan in his income tax return. The complainant failed to prove
the income tax returns and an adverse inference should have been
drawn against the complainant. This submission cannot be accepted.
It was laid down in Uttam Ram v. Devinder Singh Hudan, (2019) 10 SCC
287: (2020) 1 SCC (Cri) 154: (2020) 1 SCC (Civ) 126: 2019 SCC OnLine SC
1361that the cheque carries a presumption of consideration and the
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26
Neutral Citation No. ( 2024:HHC:8601 )complainant is not required to prove the existence of consideration.
It was observed at page 293:
.
“19. A negotiable instrument including a cheque carries a
presumption of consideration in terms of Section 118(a) and
under Section 139 of the Act. Sections 118(a) and 139 read asunder:
“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;
***
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.”
20. The trial court and the High Court proceeded as if, the
appellant is to prove a debt before 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. A 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 presented, it was not
honoured. Since there is a statutory presumption of
consideration, the burden is on the accused to rebut the
presumption that the cheque was issued not for any debt or
other liability.
21. There is the mandate of presumption of consideration in
terms of the provisions of the Act. The onus shifts to the
accused on proof of issuance of cheque to rebut the
presumption that the cheque was issued not for discharge of
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Neutral Citation No. ( 2024:HHC:8601 )
any debt or liability in terms of Section 138 of the Act which
reads as under:
“138. Dishonour of cheque for insufficiency, etc. of funds in the
account.–Where any cheque drawn by a person on an.
account maintained by him with a banker for payment of
any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debtor other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of
that account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall bedeemed to have committed an offence and shall, …”
22. In Kumar Exports [Kumar Exports v. Sharma Carpets, (2009)
2 SCC 513: (2009) 1 SCC (Civ) 629: (2009) 1 SCC (Cri) 823], it was
held that mere denial of the existence of debt will not serve
any purpose but the accused may adduce evidence to rebut the
presumption. This Court held as under: (SCC pp. 520-21, para
20)
“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
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Neutral Citation No. ( 2024:HHC:8601 )
getting the burden of proof shifted to the complainant. To
disprove the presumptions, the accused should bring on record
such facts and circumstances, upon consideration of which, the
court may either believe that the consideration and debt did
.
not exist or their non-existence was so probable that a prudent
man would under the circumstances of the case, act upon the
plea that they did not exist. Apart from adducing direct
evidence to prove that the note in question was not
supported by consideration or that he had not incurred any
debt or liability, the accused may also rely upon
circumstantial evidence and if the circumstances so relied
upon are compelling, the burden may likewise shift again
on to the complainant. The accused may also rely upon
presumptions of fact, for instance, those mentioned in
Section 114 of the Evidence Act to rebut the presumptions
arising under Sections 118 and 139 of the Act.”
(emphasis supplied)
23. In the judgment Kishan Rao v. Shankargouda [Kishan
Rao v. Shankargouda, (2018) 8 SCC 165 : (2018) 4 SCC (Civ) 37 :
(2018) 3 SCC (Cri) 544], this Court referring to Kumar
Exports [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 :
(2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823]
and Rangappa [Rangappa v. Sri Mohan, (2010) 11 SCC 441 :
(2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] returned the
following findings : (Kishan Rao case [KishanRao v. Shankargouda, (2018) 8 SCC 165 : (2018) 4 SCC (Civ) 37 :
(2018) 3 SCC (Cri) 544], SCC pp. 173-74, para 22)
“22. Another judgment which needs to be looked intois Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11
SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184]. A
three-judge Bench of this Court had occasion to examine
the presumption under Section 139 of the 1881 Act. This
Court in the aforesaid case has held that in the event the
accused is able to raise a probable defence which creates
doubt with regard to the existence of a debt or liability, the
presumption may fail. The following was laid down in paras
26 and 27: (SCC pp. 453-54)
’26. In light of these extracts, we are in agreement with
the respondent claimant that the presumption::: Downloaded on – 17/09/2024 20:30:37 :::CIS
29
Neutral Citation No. ( 2024:HHC:8601 )mandated by Section 139 of the Act does indeed include
the existence of a legally enforceable debt or liability. To
that extent, the impugned observations in Krishna
Janardhan Bhat [Krishna Janardhan Bhat v. Dattatraya G..
Hegde, (2008) 4 SCC 54: (2008) 2 SCC (Cri) 166] may not
be correct. However, this does not in any way cast doubt
on the correctness of the decision in that case since it
was based on the specific facts and circumstances
therein. As noted in the citations, this is of course in the
nature of a rebuttable presumption and it is open to the
accused to raise a defence wherein the existence of a
legally enforceable debt or liability can be contested.
However, there can be no doubt that there is an initial
presumption which favours the complainant.
27. Section 139 of the Act is an example of a reverse onus
clause that has been included in furtherance of the
legislative objective of improving the credibility of
negotiable instruments. While Section 138 of the Act
specifies a strong criminal remedy in relation to the
dishonour of cheques, the rebuttable presumption under
Section 139 is a device to prevent undue delay in the
course of litigation. However, it must be remembered
that the offence made punishable by Section 138 can be
better described as a regulatory offence since the
bouncing of a cheque is largely in the nature of a civil
wrong whose impact is usually confined to the private
parties involved in commercial transactions. In such a
scenario, the test of proportionality should guide the
construction and interpretation of reverse onus clauses
and the defendant-accused cannot be expected to
discharge an unduly high standard of proof.'”
24. In the judgment Bir Singh v. Mukesh Kumar [Bir
Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Civ)
309 : (2019) 2 SCC (Cri) 40], this Court held that presumption
under Section 139 of the Act is a presumption of law. The Court
held as under: (SCC pp. 206 & 208-09, paras 20, 33 & 36)
“20. 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::: Downloaded on – 17/09/2024 20:30:37 :::CIS
30
Neutral Citation No. ( 2024:HHC:8601 )Negotiable Instruments Act is a presumption of law, as
distinguished from a 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 evidenceshowing the reasonable possibility of the non-existence of
the presumed fact as held in Hiten P. Dalal [Hiten P.
Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16: 2001 SCC
(Cri) 960].
***
33. 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.
***
36. Even a blank cheque leaf, voluntarily signed and 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.”
25. In other judgment Rohitbhai Jivanlal Patel v. State of
Gujarat [Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18
SCC 106: 2019 SCC OnLine SC 389: AIR 2019 SC 1876] this Court
held as under: (SCC paras 15, 17 and 22)
“15. So far the question of the existence of basic ingredients
for drawing of presumption under Sections 118 and 139 of
the NI Act is concerned, apparent it is that the appellant-
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Neutral Citation No. ( 2024:HHC:8601 )
accused could not deny his signature on the cheques in
question that had been drawn in favour of the complainant
on a bank account maintained by the accused for a sum of
Rs 3 lakhs each. The said cheques were presented to the
.
bank concerned within the period of their validity and were
returned unpaid for the reason of either the balance being
insufficient or the account being closed. All the basic
ingredients of Section 138 as also of Sections 118 and 139 are
apparent on the face of the record. The trial court had also
consciously taken note of these facts and had drawn the
requisite presumption. Therefore, it is required to be
presumed that the cheques in question were drawn for
consideration and the holder of the cheques i.e. the
complainant received the same in discharge of an existing
debt. The onus, therefore, shifts on the appellant-accused
to establish a probable defence so as to rebut such a
presumption.
***
17. On the aspects relating to a 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 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, emphasised 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 Sections 118 and 139 of the NI Act….
***
22. The result of the discussion in the foregoing paragraphs
is that the major considerations on which the trial court
chose to proceed clearly show its fundamental error of
approach where, even after drawing the presumption, it
had proceeded as if the complainant was to prove his case
beyond a reasonable doubt. Such being the fundamental
flaw on the part of the trial court, the High Court [Shashi
Mohan Goyanka v. State of Gujarat, 2018 SCC OnLine Guj
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Neutral Citation No. ( 2024:HHC:8601 )
3674] cannot be said to have acted illegally or having
exceeded its jurisdiction in reversing the judgment of
acquittal. As noticed hereinabove, in the present matter,
the High Court has conscientiously and carefully taken into
.
consideration the views of the trial court and after
examining the evidence on the record as a whole, found
that the findings of the trial court are vitiated by perversity.
Hence, interference by the High Court was inevitable;
rather had to be made for a just and proper decision of the
matter.”
33. Therefore, the complainant was not required to prove the
income tax return as a presumption existed in favour of the
complainant rather the accused was required to rebut the
presumption. Thus, no advantage can be derived from this
admission by the accused.
34. Bhup Singh (CW2) stated that the cheque was received in
the Bank for presentation but there were insufficient funds and the
cheque was dishonoured and returned to the complainant. He stated
in his cross-examination that he had not issued the memo of
dishonour. It was issued by the authorized officer.
35. The admission of this witness that accused did not have
sufficient money in his account was not challenged in his cross-
examination. Therefore, the same has gone unrebutted and learned
Courts below had rightly held that the cheque was dishonoured due
to insufficient funds.
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Neutral Citation No. ( 2024:HHC:8601 )
36. The accused admitted that he had received a notice. He
had sent a reply (Ext. CW1/F) to the notice, which shows the receipt
.
of the notice by the accused. The accused has not paid any amount
and he stated in his statement recorded under Section 313 of Cr.P.C.
that he was not liable to pay any amount. Thus, the requirement that
the accused had not paid the money despite the receipt of the valid
notice of demand has also been satisfied.
37. Thus, the learned Courts below had rightly held that the
cheque was issued in discharge of the legal liability, it was
dishonoured due to insufficient funds and the accused had failed to
pay the amount despite the receipt of the valid notice of demand;
hence, all the ingredients of Section 138 of NI Act were satisfied and
learned Trial Court had rightly convicted the accused for the
commission of offence punishable under Section 138 of NI Act.
38. The learned Trial Court had sentenced the accused to
undergo simple imprisonment for six months. 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 v. Mukesh
Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ) 309:
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2019 SCC OnLine SC 138 that the penal provision of Section 138 is a
deterrent in nature. It was observed at page 203:
.
“6. 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 negotiableinstruments including cheques in financial transactions. The
penal provision of Section 138 of the Negotiable Instruments
Act is intended to be a deterrent to callous issuance of
negotiable instruments such as cheques without serious
intention to honour the promise implicit in the issuance of thesame.”
39. In view of this, the sentence of six months is not
excessive.
40. Learned Trial Court had also imposed a fine of
₹4,50,000/- and ordered the payment of the fine to the complainant.
The cheque bears the date 23.01.2018. The order was pronounced on
08.05.2023 after a lapse of nearly five years. The complainant lost
interest on the amount and he had to pay the litigation expenses for
filing the complaint. He was entitled to be compensated for the
same. It was laid down by the Hon’ble Supreme Court in Kalamani
Tex v. P. Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25:
(2021) 2 SCC (Cri) 555: 2021 SCC OnLine SC 75 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 at page
291: –
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Neutral Citation No. ( 2024:HHC:8601 )
19. 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 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 fines up to twice the cheque amount along with
simple interest @ 9% p.a. [R. Vijayan v. Baby, (2012) 1 SCC 260,
para 20: (2012) 1 SCC (Civ) 79: (2012) 1 SCC (Cri) 520]”
41.
42. to
Therefore, the amount of ₹ 4,50,000/- is not excessive.
No other point was urged.
43. In view of the above, there is no infirmity in the
judgments and the order passed by learned Courts below and no
interference is required with them.
44. Consequently, the present petition fails and the same is
dismissed. Records of the learned Courts below be sent back
forthwith.
(Rakesh Kainthla)
Judge
16th September, 2024.
(saurav pathania)
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