Himachal Pradesh High Court
Tule Ram vs Ramneek Singh on 19 September, 2024
Neutral Citation No. ( 2024:HHC:8786 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 323 of 2023
.
Reserved on: 21.8.2024
Date of Decision: 19.9.2024.
Tule Ram ...Petitioner
Versus
Ramneek Singh
Coram
r to ...Respondent
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Mukul Sood, Advocate.
For the Respondent : Mr. Arun Sehgal, Advocate.
Rakesh Kainthla, Judge
The petitioner has filed the present petition against
the judgment passed by learned Additional Sessions Judge, Kullu
(learned Appellate Court), vide which the appeal filed by the
petitioner (accused before the learned Trial Court) was
dismissed and the judgment of conviction dated 16.11.2022 and
order of sentence dated 18.11.2022, passed by learned Judicial
Magistrate First Class, Manali (learned Trial Court) were upheld.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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(Parties shall hereinafter be referred to in the same manner as they
were arrayed before the learned Trial Court for convenience).
.
2. Briefly stated, the facts giving rise to the present
petition 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 (NI Act). It was asserted that the complainant
and the accused had good terms with each other. The accused
borrowed a sum of ₹2.00 lacs in July 2008 from him to meet his
domestic and business needs. The accused issued a cheque of
₹2.00 lacs to return the amount. The complainant deposited the
cheque in his account but the cheque was dishonoured with an
endorsement of ‘funds insufficient’. The complainant served a
notice upon the accused asking him to pay the amount but he
failed to do so. Hence, the complaint was filed before the learned
Trial Court to take action against the accused as per the law.
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
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punishable under Section 138 of the NI Act. He pleaded not guilty
and claimed to be tried.
.
4. The complainant examined himself (CW1) to prove
his case.
5. The accused in his statement recorded under Section
313 of Cr.P.C. denied the complainant’s case in its entirety. He
stated that he did not know the accused and he was falsely
implicated. He stated that he wanted to lead defence evidence
but subsequently, no evidence was led.
6. Learned Trial Court held that the cheque carries with
it a presumption of consideration. The burden lies upon the
accused to rebut this presumption. The accused failed to rebut
the presumption. The cheque was dishonoured with the
endorsement ‘funds insufficient’. The accused failed to pay the
amount within 15 days from the date of receipt of the notice of
demand. Hence, the accused was convicted of the commission of
an offence punishable under Section 138 of the NI Act and he was
sentenced to undergo simple imprisonment for one year, pay a
compensation of ₹3.00 lacs and in default of payment of
compensation, to undergo simple imprisonment for one month.
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7. Being aggrieved from the judgment and order passed
by the learned Trial Court, the accused filed an appeal which was
.
decided by learned Sessions Judge, Kullu (learned Appellate
Court). Learned Appellate Court agreed with the findings
recorded by the learned Trial Court that the cheque carried with
it a presumption of consideration and the accused had failed to
rebut the presumption. The cross-examination of the
complainant was not sufficient to rebut the presumption. A plea
was taken that the accused had issued a security cheque and he
was liable to pay ₹40,000/-. This shows that the issuance of the
cheque was not disputed. A cheque issued as a security can form
the subject matter of the complaint for the commission of an
offence punishable under Section 138 of the NI Act. Hence, the
accused was convicted and sentenced as aforesaid.
8. Being aggrieved from the judgment passed by the
learned Appellate Court, the accused has filed the present appeal
asserting that the learned Courts below erred in convicting and
sentencing the accused. The oral and documentary evidence was
not properly appreciated. The complainant failed to prove the
existence of legally enforceable debt. No receipt or writing was
proved to show that the amount was paid to the accused. The
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accused stated that the cheque was issued as a security cheque.
This was not considered by the learned Trial Court. Hence, it was
.
prayed that the present revision be allowed and the judgments
and order passed by learned Courts below be set aside.
9. I have heard Mr. Mukul Sood, learned counsel for the
petitioner/accused and Mr. Arun Sehgal, learned counsel for the
respondent/complainant.
10. Mr Mukul Sood, learned counsel for the
petitioner/accused submitted that the learned Courts below
erred in convicting and sentencing the accused. The
complainant had failed to prove the existence of legally
enforceable debt or liability. No receipt was produced before the
Court to establish this fact. The plea of the accused that the
cheque was issued as a security was highly probable. Learned
Courts below erred in appreciating this fact. Therefore, he
prayed that the present revision be allowed and the judgments
and order passed by learned Courts below be set aside.
11. Mr. Arun Sehgal, learned counsel for the respondent/
complainant supported the judgments and order passed by
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learned Courts below and submitted that no interference is
required with the same.
.
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
findings of conviction arrived at by two courts after adetailed appreciation of the material and evidence
brought on record. The High Court in criminal revisionagainst conviction is not supposed to exercise the
jurisdiction like to the appellate court and the scope of
interference in revision is extremely narrow. Section 397of the Criminal Procedure Code (in short “CrPC”) vests
jurisdiction to satisfy itself or himself as to the
correctness, legality or propriety of any finding, sentence
or order, recorded or passed, and as to the regularity of
any proceedings of such inferior court. The object of the
provision is to set right a patent defect or an error of
jurisdiction or law. There has to be a well-founded error
which is to be determined on the merits of individual
cases. It is also well settled that while considering the
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Neutral Citation No. ( 2024:HHC:8786 )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
to call for and examine records of an inferior court is forthe 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 of jurisdiction or law or the perversity whichhas 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 aninferior court for the purposes of satisfying itself as to
the legality and regularity of any proceedings or ordermade 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 beappropriate for the court to 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.
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Each case would have to be determined on its own
merits.
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 tokeep 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 has been framed properly and inaccordance 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 of charge is amuch-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 complainant reiterated the contents of the
complaint in his proof affidavit. He stated in his cross-
examination that he had worked as Manager from the year 2008
till 2019. He is an agriculturist. His salary was ₹40,000/- per
month. His annual income was ₹6.00 lacs to ₹7.00 lacs. He did
not file any income tax return. He has his wife, child and parents
in his home. He knew the accused for eight years. The accused
had taken money for his necessities. The money was paid in his
room. No other person was present. He denied that ₹40,000/-
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was paid by him. He denied that the accused had purchased
liquor from him and he had taken a blank cheque from the
.
accused. He denied that a false complaint was made by the
accused.
17. The cross-examination of this witness shows that
the accused has not disputed the issuance of the cheque as it was
suggested to him that a blank cheque was issued. The accused
has also not disputed the transaction with the complainant as it
was suggested to him that he had advanced ₹40,000/- to the
accused. It was laid down by the Hon’ble Supreme Court in Balu
Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355
that the suggestion put to the witness can be taken into
consideration while determining the innocence or guilt of the
accused. It was observed: –
“34. According to the learned counsel, such suggestions
could be a part of the defence strategy to impeach the
credibility of the witness. The proof of guilt required of
the prosecution does not depend on the suggestion made
to a witness.
35. In Tarun Bora alias Alok Hazarika v. State of Assam
reported in 2002 Cri. LJ 4076, a three-judge Bench of this
Court was dealing with an appeal against the order passed
by the Designated Court, Guwahati, in the TADA Sessions
case wherein the appellant was convicted under Section
365 of the IPC read with Section 3(1) and 3(5) of the::: Downloaded on – 19/09/2024 20:31:40 :::CIS
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Neutral Citation No. ( 2024:HHC:8786 )Terrorists and Disruptive Activities (Prevention) Act,
1987.
36. In the aforesaid case, this Court, while considering the
.
evidence on record took note of a suggestion which was
put to one of the witnesses and considering the reply
given by the witness to the suggestion put by the accused,
arrived at the conclusion that the presence of the accusedwas admitted. We quote with profit the following
observations made by this Court in paragraphs 15, 16 and
17 as under:
“15. The witness further stated that during the
assault, the assailant accused him of giving
information to the army about the United Liberation
Front of Assam (ULFA). He further stated that on thethird night, he was carried away blindfolded on a
bicycle to a different place and when his eyes wereunfolded, he could see his younger brother Kumud
Kakati (P.W.-2) and his wife Smt. Prema Kakati
(P.W.-3). The place was Duliapather, which is about6-7 km. away from his village Sakrahi. The witness
identified the appellant-Tarun Bora and stated that
it was he who took him in an ambassador car fromthe residence of Nandeswar Bora on the date of the
incident.
16. In cross-examination the witness stated as
under: “Accused-Tarun Bora did not blind my eyes
nor he assaulted me.”
17. This part of the cross-examination is suggestive
of the presence of accused Tarun Bora in the whole
episode. This will clearly suggest the presence of the
accused-Tarun Bora as admitted. The only denial is
the accused did not participate in blind-folding the
eyes of the witness nor assaulted him.”
37. In Rakesh Kumar alias Babli v. State of Haryana reported
in (1987) 2 SCC 34, this Court was dealing with an appeal
against the judgment of the High Court affirming the
order of the Sessions Judge whereby the appellant and
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three other persons were convicted under Section 302
read with Section 34 of the IPC. While re-appreciating the
evidence on record, this Court noticed that in the cross-
examination of PW 4, Sube Singh, a suggestion was made
.
with regard to the colour of the shirt worn by one of the
accused persons at the time of the incident. This Court
taking into consideration the nature of the suggestion put
by the defence and the reply arrived at the conclusion that
the presence of the accused namely Dharam Vir was
established on the spot at the time of occurrence. We
quote the following observations made by this Court in
paragraphs 8 and 9 as under:
“8. PW 3, Bhagat Singh, stated in his examination-
in-chief that he had identified the accused at the
time of occurrence. But curiously enough, he was notcross-examined as to how and in what manner he
could identify the accused, as pointed out by the
learned Sessions Judge. No suggestion was also given
to him that the place was dark and that it was not
possible to identify the assailants of the deceased.
9. In his cross-examination, PW 4, Sube Singh,
stated that the accused Dharam Vir was wearing ashirt of white colour. It was suggested to him on
behalf of the accused that Dharam Vir was wearing ashirt of cream colour. In answer to that suggestion,
PW 4 said: “It is not correct that Dharam Vir accused
was wearing a shirt of a cream colour and not a whitecolour at that time.” The learned Sessions Judge has
rightly observed that the above suggestion at least
proves the presence of accused Dharam Vir, on the
spot at the time of occurrence.”
38. Thus, from the above, it is evident that the suggestion
made by the defence counsel to a witness in the cross-
examination if found to be incriminating in nature in any
manner would definitely bind the accused and the
accused cannot get away on the plea that his counsel had
no implied authority to make suggestions in the nature of
admissions against his client.
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39. Any concession or admission of a fact by a defence
counsel would definitely be binding on his client, except
the concession on the point of law. As a legal proposition,
we cannot agree with the submission canvassed on behalf
.
of the appellants that an answer by a witness to a
suggestion made by the defence counsel in the cross-
examination does not deserve any value or utility if it
incriminates the accused in any manner.”
18. Therefore, the suggestion can be taken into
consideration and once the issuance of the cheque was not
disputed, the version of the complainant that the accused had
issued the cheque has to be accepted as correct.
19. 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
burden would shift upon the accused to rebut the presumption.
It was observed: –
“8. Once signatures on the cheque are not disputed, the
plea with regard to the cheque having not been issued
towards discharge of lawful liability, rightly came to be
rejected by learned Courts below. Reliance is placed upon
Hiten P. Dalal v. Bartender NathBannerji, 2001 (6) SCC 16,
wherein it has been held as under:
“The words ‘unless the contrary is proved’ which
occur in this provision make it clear that the
presumption has to be rebutted by ‘proof’ and not
by a bare explanation which is merely plausible. A
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Neutral Citation No. ( 2024:HHC:8786 )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……”
9. S.139 of the Act provides that it shall be presumed
unless the contrary is proved, that the holder of a cheque
received the cheque of nature referred to in section 138
for the discharge, in whole or in part, of any debt or
other liability.
20. Similar is the judgment in Basalingappa vs.
Mudibasappa 2019 (5) SCC 418 wherein it was held:
“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 presumptionshall be raised under Section 139 that the cheque was
issued in discharge of debt or liability.”
21. 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 the provisions and failed to appreciate the
statutory presumption drawn under Section 118 and
Section 139 of NIA. The statute mandates that once the
signature(s) of an accused on the cheque/negotiable
instrument are established, then these “reverse onus”
clauses become operative. In such a situation, the
obligation shifts upon the accused to discharge the
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presumption imposed upon him. This point of law has
been crystallised by this Court in Rohitbhai Jivanlal Patel v.
State of Gujarat [Rohitbhai Jivanlal Patel v. State of Gujarat,
(2019) 18 SCC 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
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 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 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..”
22. Similar is the judgment in APS Forex Services (P) Ltd. v.
Shakti International Fashion Linkers (2020) 12 SCC 724, wherein it
was observed:-
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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.
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
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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.
23. Significantly, the accused had not stated in his
statement recorded under Section 313 of Cr.P.C. that he had
taken a loan of ₹40,000/- from the complainant and had issued
a blank cheque as security. Hence, learned Courts below had
rightly held that the defence taken by the accused that he had
taken ₹40,000/- from the complainant and had issued a blank
cheque was not proved.
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24. It was submitted that the burden was upon the
complainant to prove the existence of legally enforceable debt or
.
liability. Reliance was placed upon the judgment of the Hon’ble
Supreme Court in Krishna Janardhan Bhat vs. Dattatraya G. Hegde,
2004 (4) SCC 54 and B.P. Girish Vs. State of Karnataka (2012) (1)
RCR Civil 641 which in turn relied on the judgment of Krishna
Janardhan Bhat (supra). The judgment of Krishna Janardhan
Bhat (supra) was considered by the Hon’ble Supreme Court in
Rangappa v. Sri Mohan, (2010) 11 SCC 441: 2010 SCC OnLine SC
583, and it was held that the observations made in Krishan
Janardhan Bhat (supra) may not be correct. It was observed:
“26. In light of these extracts, we are in agreement with
the respondent claimant that the presumption mandatedby Section 139 of the Act does indeed include the
existence of a legally enforceable debt or liability. To thatextent, the impugned observations in Krishna Janardhan
Bhat [(2008) 4 SCC 54: (2008) 2 SCC (Cri) 166] may not be
correct. However, this does not in any way cast doubt onthe 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.”
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25. In similar circumstances, the Hon’ble Supreme Court
had held in Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18
.
SCC 106, 18 that once the presumption had been drawn, the onus
shifted to the accused and unless the accused discharged the
onus, any doubt on the complainant’s case could not have been
raised for want of evidence regarding the source of fund or non-
examination of the witnesses. It was observed: –
“18. In the case at hand, even after purportedly drawing
the presumption under Section 139 of the NI Act, the trialcourt 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 foradvancing 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 haddischarged 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 ofevidence regarding the source of funds for advancing loan
to the appellant-accused. The aspect relevant for
consideration had been as to whether the appellant-
accused has brought on record such
facts/material/circumstances which could be of a
reasonably probable defence.”
26. It was laid down by the Hon’ble Supreme Court in
Uttam Ram Versus Devinder Singh Hudan and another (2019) 10
SCC 287 that the complainant is not to prove the debt as in a civil
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court in view of the presumption but only to prove that the
cheque was issued by the accused. It was observed:
.
“20. The Trial Court and the High Court proceeded as if,
the appellant is to prove a debt before a civil court
wherein, the plaintiff is required to prove his claim on thebasis of evidence to be laid in support of his claim for the
recovery of the amount due. Dishonour of a cheque
carries a statutory presumption of consideration. The
holder of the cheque in due course is required to provethat the cheque was issued by the accused and that when
the same was presented, it was not honoured. Since there
is a statutory presumption of consideration, the burden is
on the accused to rebut the presumption that the chequewas issued not for any debt or other liability.”
27. It was laid down in P. Rasiya v. Abdul Nazer, 2022 SCC
OnLine SC 1131 that the complainant is not to state the nature of
the transaction or the source of funds. It was observed:
“By the impugned common judgment and order, the High
Court has reversed the concurrent findings recorded by
both the courts below and has acquitted the accused on
the ground that, in the complaint, the Complainant has
not specifically stated the nature of transactions and thesource of fund. However, the High Court has failed to note
the presumption under Section 139 of the N.I. Act. As per
Section 139 of the N.I. Act, it shall be presumed, unless the
contrary is proved, that the holder of a cheque received
the cheque of the nature referred to in Section 138 for
discharge, in whole or in part, of any debt or other
liability. Therefore, once the initial burden is discharged
by the Complainant that the cheque was issued by the
accused and the signature and the issuance of the cheque
are not disputed by the accused, in that case, the onus will
shift upon the accused to prove the contrary that the::: Downloaded on – 19/09/2024 20:31:40 :::CIS
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Neutral Citation No. ( 2024:HHC:8786 )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. The aforesaid has notbeen dealt with and considered by the High Court.”
28. Therefore, in view of the binding precedents of the
Hon’ble Supreme Court, the complainant is not required to
prove the existence of legally enforceable debt or liability as this
is a matter of presumption. Rather, the accused is required to
disprove the existence of legally enforceable debt or liability.
29. The learned Courts below had rightly held that there
is a presumption under Section 139 of the Negotiable
Instruments Act that the cheque was issued in the discharge of
the legal liability. This presumption was explained by the
Hon’ble Supreme Court in Triyambak S. Hegde Versus Sripad 2022
(1) SCC 742 as under:
11. From the facts arising in this case and the nature of the
rival contentions, the record would disclose that the
signature on the documents at Exhibits P-6 and P-2 is
not disputed. Exhibit P-2 is the dishonoured cheque
based on which the complaint was filed. From the
evidence tendered before the JMFC, it is clear that the
respondent has not disputed the signature on the cheque.
If that be the position, as noted by the courts below a
presumption would arise under Section 139 in favour of
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Neutral Citation No. ( 2024:HHC:8786 )
the appellant who was the holder of the cheque. Section
139 of the N.I. Act reads as hereunder: –
“139. A presumption in favour of the 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 otherliability.”
12 Insofar as the payment of the amount by the appellant
in the context of the cheque having been signed by the
respondent, the presumption for the passing of the
consideration would arise as provided under Section
118(a) of N.I. Act which reads as hereunder: –
“118. Presumptions as to negotiable instruments –
Until the contrary is proved, the following
presumptions shall be made: –
(a) of consideration – that every negotiable
instrument was made or drawn forconsideration, and that every such
instrument, when it has been accepted,
indorsed, negotiated or transferred, wasaccepted, indorsed, negotiated or transferred
for consideration.”
13. The above-noted provisions are explicit to the effect
that such presumption would remain until the contrary is
proved. The learned counsel for the appellant in that
regard has relied on the decision of this Court in K.
Bhaskaran vs. SankaranVaidhyanBalan&Anr., 1999 (7) SCC
510 wherein it is held as hereunder:
“9. As the signature in the cheque is admitted to be
that of the accused, the presumption envisaged in
Section 118 of the Act can legally be inferred that
the cheque was made or drawn for consideration on
the date on which the cheque bears. Section 139 of
the Act enjoins the Court to presume that the holder
of the cheque received it for the discharge of any::: Downloaded on – 19/09/2024 20:31:40 :::CIS
22
Neutral Citation No. ( 2024:HHC:8786 )debt or liability. The burden was on the accused to
rebut the aforesaid presumption. The Trial Court
was not persuaded to rely on the interested
testimony of DW-1 to rebut the presumption. The.
said finding was upheld by the High Court. It is not
now open to the accused to contend differently on
that aspect.”
14. The learned counsel for the respondent has however
referred to the decision of this Court in Basalingappa vs.
Mudibasappa, 2019 (5) SCC 418 wherein it is held as
hereunder: –
“25. We having noticed the ratio laid down by this
Court in the above cases on Sections 118 (a) and 139,
we now summarise the principles enumerated bythis Court in the following manner:
25.1. Once the execution of the cheque is admitted
Section 139 of the Act mandates a presumption that
the cheque was for the discharge of any debt or
other liability.
25.2. The presumption under Section 139 is a
rebuttable presumption and the onus is on the
accused to raise the probable defence. The standardof proof for rebutting the presumption is that of the
preponderance of probabilities.
25.3. To rebut the presumption, it is open for the
accused to rely on evidence led by him or theaccused can also rely on the materials submitted by
the complainant in order to raise a probable
defence. Inference of preponderance of
probabilities can be drawn not only from the
materials brought on record by the parties but also
by reference to the circumstances upon which they
rely.
25.4. That it is not necessary for the accused to
come in the witness box in support of his defence,
Section 139 imposed an evidentiary burden and not
a persuasive burden.
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Neutral Citation No. ( 2024:HHC:8786 )
25.5. It is not necessary for the accused to come into
the witness box to support his defence.
26. Applying the proposition of law as noted above,
.
in the facts of the present case, it is clear that the
signature on the cheque having been admitted, a
presumption shall be raised under Section 139 that
the cheque was issued in discharge of debt or
liability. The question to be looked into is as to
whether any probable defence was raised by the
accused. In cross-examination of PW1, when the
specific question was put that the cheque was
issued in relation to a loan of ₹25,000 taken by the
accused, PW1 said that he does not remember. PW1
in his evidence admitted that he retired in 1997 on
which date he received a monetary benefit of ₹8
lakhs, which was encashed by the complainant. It
was also brought in the evidence in the evidence
that in the year 2010, the complainant entered into
a sale agreement for which he paid an amount of
₹4,50,000 to Balana Gouda towards sale
consideration. Payment of ₹4,50,000 being
admitted in the year 2010 and a further payment of
a loan of ₹ 50,000 with regard to which Complaint
No.119 of 2012 was filed by the complainant, copy of
which complaint was also filed as Ext. D-2, there
was a burden on the complainant to prove his
financial capacity. In the years 2010-2011, as per
the own case of the complainant, he made a
payment of ₹18 lakhs. During his cross-
examination, when the financial capacity to pay ₹ 6
lakhs to the accused was questioned, there was no
satisfactory reply given by the complainant. The
evidence on record, thus, is a probable defence on
behalf of the accused, which shifted the burden on
the complainant to prove his financial capacity and
other facts.”
15. In that light, it is contended that the very materials
produced by the appellant and the answers relating to
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Neutral Citation No. ( 2024:HHC:8786 )
lack of knowledge of property details by PW-1 in his
cross-examination would indicate that the transaction is
doubtful and no evidence is tendered to indicate that the
amount was paid. In such an event, it was not necessary
.
for the respondent to tender rebuttal evidence but the
case put forth would be sufficient to indicate that the
respondent has successfully rebutted the presumption.
16. On the position of law, the provisions referred to in
Sections 118 and 139 of N.I. Act as also the enunciation of
law as made by this Court needs no reiteration as there is
no ambiguity whatsoever. In, Basalingappa vs.
Mudibasappa (supra) relied on by the learned counsel for
the respondent, though on facts the ultimate conclusion
therein was against raising presumption, the facts and
circumstances are entirely different as the transaction
between the parties as claimed in the said case is peculiar
to the facts of that case where the consideration claimed
to have been paid did not find favour with the Court
keeping in view the various transactions and extent of the
amount involved. However, the legal position relating to
presumption arising under Sections 118 and 139 of N.I. Act
on a signature being admitted has been reiterated. Hence,
whether there is a rebuttal or not would depend on the
facts and circumstances of each case.
30. This position was reiterated in Tedhi Singh vs.
Narayan Dass Mahant 2022 (6) SCC 735 wherein it was held:
7. It is true that this is a case under Section 138 of the
Negotiable Instruments Act. Section 139 of the N.I. Act
provides that the Court shall presume that the holder of a
cheque received the cheque of the nature referred to in
Section 138 for the discharge, in whole or in part, of any
debt or other liability. This presumption, however, is
expressly made subject to the position being proved to the
contrary. In other words, it is open to the accused to
establish that there is no consideration received. It is in
the context of this provision that the theory of ‘probable::: Downloaded on – 19/09/2024 20:31:40 :::CIS
25
Neutral Citation No. ( 2024:HHC:8786 )defence’ has grown. In an earlier judgment, in fact, which
has also been adverted to in Basalingappa (supra), this
Court notes that Section 139 of the N.I. Act is an example
of reverse onus [see (2010) 11 SCC 441). It is also true that.
this Court has found that the accused is not expected to
discharge an unduly high standard of proof. It is
accordingly that the principle has developed that all
which the accused needs to establish is a probable
defence. As to whether a probable defence has been
established is a matter to be decided on the facts of each
case on the conspectus of evidence and circumstances
that exist.
31. 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 otherliability. Therefore, once the initial burden is discharged
by the Complainant that the cheque was issued by the
accused and the signature and the issuance of the chequeis not disputed by the accused, in that case, the onus will
shift upon the accused to prove the contrary that the
cheque was not for any debt or other liability. The
presumption under Section 139 of the N.I. Act is astatutory 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.”
32. 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:
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Neutral Citation No. ( 2024:HHC:8786 )
33. The NI Act provides for two presumptions: Section 118
and Section 139. Section 118 of the Act inter alia directs
that it shall be presumed until the contrary is proved, that
every negotiable instrument was made or drawn for
.
consideration. Section 139 of the Act stipulates that
“unless the contrary is proved, it shall be presumed, that
the holder of the cheque received the cheque, for the
discharge of, whole or part of any debt or liability”. It will
be seen that the “presumed fact” directly relates to one of
the crucial ingredients necessary to sustain a conviction
under Section 138. [The rules discussed hereinbelow are
common to both the presumptions under Section 139 and
Section 118 and are hence, not repeated–reference to one
can be taken as reference to another]
34. Section 139 of the NI Act, which takes the form of a
“shall presume” clause is illustrative of a presumption of
law. Because Section 139 requires that the Court “shall
presume” the fact stated therein, it is obligatory on the
Court to raise this presumption in every case where the
factual basis for the raising of the presumption has 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]”
33. Therefore, the Court has to start with the
presumption that the cheque was issued in discharge of legal
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Neutral Citation No. ( 2024:HHC:8786 )liability and the burden is upon the accused to prove the
contrary.
.
34. In the present case, the accused did not step into the
witness box and the cross-examination of the complainant was
not sufficient to rebut the presumption. It was held in Sumeti Vij
vs. Paramount Tech Fab Industries AIR 2021 SC 1281 that the
accused has to lead defence evidence to rebut the presumption
and mere denial in his statement under Section 313 is not
sufficient to rebut the presumption. It was observed:
“21. That apart, when the complainant exhibited all these
documents in support of his complaints and recorded thestatement of three witnesses in support thereof, the
appellant recorded her statement under Section 313 of the
Code but failed to record evidence to disprove or rebut thepresumption in support of her defence available under
Section 139 of the Act. The statement of the accused recordedunder Section 313 of the Code is not substantive evidence of
defence, but only an opportunity for the accused to explain the
incriminating circumstances appearing in the prosecutioncase of the accused. Therefore, there is no evidence to rebut
the presumption that the cheques were issued for
consideration.” (Emphasis supplied)”
35. Therefore, learned Courts below had rightly held that
the accused had failed to rebut the presumption of consideration
attached to the cheque.
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Neutral Citation No. ( 2024:HHC:8786 )
36. It was submitted that the complainant had taken a
security cheque from the accused and had misused it. This
.
submission cannot be accepted. The complainant denied in his
cross-examination that the accused had issued a security
cheque to him. A denied suggestion does not amount to any
proof. The accused did not step into the witness box to prove
this version. Hence, there is no proof that the accused had issued
a security cheque to the complainant.
37. The complainant proved the memo of dishonour
(Ex.CW1/A) which shows that the cheque was dishonoured due
to insufficient funds. A memo of dishonour carries with it a
presumption of correctness under Section 146 of the N I Act and
no evidence was produced by the accused to rebut this
presumption; hence, the learned Trial Court below had rightly
held that the cheque was dishonoured due to ‘insufficient
funds’.
38. The complainant stated that he had issued a legal
notice to the accused asking him to pay the amount within 15
days from the date of receipt of the notice. The
acknowledgement (Ex.CW1/F) shows that it was returned with
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Neutral Citation No. ( 2024:HHC:8786 )
the signatures of the accused. Thus, it was proved that the notice
was served upon the accused.
.
39. Therefore, all the ingredients of the commission of
an offence punishable under Section 138 of the NI Act were
satisfied and the learned Courts below had rightly convicted the
accused.
40.
The Learned Trial Court had sentenced the accused to
undergo simple imprisonment for one year and to pay
compensation of ₹3.00 lacs and in default of payment of fine to
undergo simple imprisonment of one month.
41. 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: 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 negotiable instruments 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 the same.”
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Neutral Citation No. ( 2024:HHC:8786 )
42. In view of this consideration, the sentence of one year
is not excessive.
.
43. The cheque was issued on 22.1.2019. The sentence
was imposed by the learned Trial Court on 18.11.2022 after the
lapse of more than three years. The complainant had to engage
the counsel and pay him the legal fee. He lost interest in the
amount so advanced by him. 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: –
19. As regards the claim of compensation raised on behalf
of the respondent, we are conscious of the settledprinciples that the object of Chapter XVII of NIA is not
only punitive but also compensatory and restitutive. Theprovisions 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]”
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Neutral Citation No. ( 2024:HHC:8786 )
44. Hence, the amount of compensation of ₹3,00,000/-
cannot be said to be excessive.
.
45. It was submitted that the learned Trial Court erred in
imposing the sentence of imprisonment in case of default in the
payment of compensation. This submission cannot be accepted.
It was laid down by the Hon’ble Supreme Court in K.A. Abbas v.
Sabu Joseph, (2010) 6 SCC 230: (2010) 3 SCC (Civ) 744 : (2010) 3
SCC (Cri) 127: 2010 SCC OnLine SC 612 that the Courts can impose
sentence of imprisonment in default of payment of
compensation. It was observed at page 237:
“20. Moving over to the question, whether a default
sentence can be imposed on default of payment of
compensation, this Court in Hari Singh v. Sukhbir
Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC2127] and in Balraj v. State of U.P. [(1994) 4 SCC 29: 1994
SCC (Cri) 823: AIR 1995 SC 1935], has held that it was open
to all the courts in India to impose a sentence on default
of payment of compensation under sub-section (3) ofSection 357. In Hari Singh v. Sukhbir Singh [(1988) 4 SCC
551: 1988 SCC (Cri) 984: AIR 1988 SC 2127], this Court has
noticed certain factors which required to be taken into
consideration while passing an order under the section:
(SCC p. 558, para 11)
“11. The payment by way of compensation must,
however, be reasonable. What is reasonable, may
depend upon the facts and circumstances of each case.
The quantum of compensation may be determined by
taking into account the nature of the crime, the
justness of claim by the victim and the ability of the
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accused to pay. If there is more than one accused, they
may be asked to pay on equal terms unless their
capacity to pay varies considerably. The payment may
also vary depending upon the acts of each accused. A
.
reasonable period for payment of compensation, if
necessary, by instalments, may also be given. The
court may enforce the order by imposing sentence in
default.”
21. This position also finds support in R. v. Oliver John
Huish [(1985) 7 Cri App R (S) 272]. The Lord Justice Croom
Johnson speaking for the Bench has observed:
“When compensation orders may possibly be made the
most careful examination is required. Documents
should be obtained and evidence either on affidavit ororally should be given. The proceedings should, if
necessary, be adjourned, in order to arrive at the truestate of the defendant’s affairs.
Very often a compensation order is made and a very
light sentence of imprisonment is imposed, becausethe court recognizes that if the defendant is to have an
opportunity of paying the compensation he must be
enabled to earn the money with which to do so. Theresult is therefore an extremely light sentence of
imprisonment. If the compensation order turns out tobe virtually worthless, the defendant has got off with a
very light sentence of imprisonment as well as no
order of compensation. In other words, generallyspeaking, he has got off with everything.”
22. The law laid down in Hari Singh v. Sukhbir
Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC
2127] was reiterated by this Court in Suganthi Suresh
Kumar v. Jagdeeshan [(2002) 2 SCC 420: 2002 SCC (Cri)
344]. The Court observed: (SCC pp. 424-25, paras 5 & 10)
“5. In the said decision this Court reminded all
concerned that it is well to remember the emphasis
laid on the need for making liberal use of Section
357(3) of the Code. This was observed by reference to a
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decision of this Court in Hari Singh v. Sukhbir
Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC
2127]. In the said decision this Court held as follows:
(SCC p. 558, para 11)
.
’11. … The quantum of compensation may be
determined by taking into account the nature of the
crime, the justness of claim by the victim and theability of the accused to pay. If there is more than
one accused, they may be asked to pay on equal
terms unless their capacity to pay varies
considerably. The payment may also varydepending upon the acts of each accused. A
reasonable period for payment of compensation, if
necessary, by instalments, may also be given. The
court may enforce the order by imposing sentence indefault.’
(emphasis in original)
***
10. That apart, Section 431 of the Code has only
prescribed that any money (other than fine) payable by
virtue of an order made under the Code shall be
recoverable ‘as if it were a fine’. Two modes ofrecovery of the fine have been indicated in Section
421(1) of the Code. The proviso to the sub-section saysthat if the sentence directs that in default of payment
of the fine, the offender shall be imprisoned, and ifsuch offender has undergone the whole of such
imprisonment in default, no court shall issue such
warrant for the levy of the amount.”
The Court further held: (Jagdeeshan case [(2002) 2 SCC
420: 2002 SCC (Cri) 344], SCC p. 425, para 11)
“11. When this Court pronounced in Hari
Singh v. Sukhbir Singh [(1988) 4 SCC 551: 1988 SCC (Cri)
984: AIR 1988 SC 2127] that a court may enforce an
order to pay compensation ‘by imposing a sentence in
default’ it is open to all courts in India to follow the
said course. The said legal position would continue to
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hold good until it is overruled by a larger Bench of this
Court. Hence learned Single Judge of the High Court of
Kerala has committed an impropriety by expressing
that the said legal direction of this Court should not be
.
followed by the subordinate courts in Kerala. We
express our disapproval of the course adopted by the
said Judge in Rajendran v. Jose [(2001) 3 KLT 431]. It is
unfortunate that when the Sessions Judge has correctly
done a course in accordance with the discipline the
Single Judge of the High Court has incorrectly reversed
it.”
23. In order to set at rest the divergent opinion expressed
in Ahammedkutty case [(2009) 6 SCC 660 : (2009) 3 SCC
(Cri) 302], this Court in Vijayan v. Sadanandan K. [(2009) 6
SCC 652 : (2009) 3 SCC (Cri) 296], after noticing the
provision of Sections 421 and 431 CrPC, which dealt with
mode of recovery of fine and Section 64 IPC, which
empowered the courts to provide for a sentence of
imprisonment on default of payment of fine, the Court
stated: (Vijayan case [(2009) 6 SCC 652 : (2009) 3 SCC (Cri)
296], SCC p. 658, para 24)
“24. We have carefully considered the submissions
made on behalf of the respective parties. Since a
decision on the question raised in this petition is still
in a nebulous state, there appear to be two views as to
whether a default sentence of imprisonment can be
imposed in cases where compensation is awarded to
the complainant under Section 357(3) CrPC. As pointed
out by Mr Basant in Dilip S. Dahanukar case [(2007) 6
SCC 528 : (2007) 3 SCC (Cri) 209], the distinction
between a fine and compensation as understood under
Section 357(1)(b) and Section 357(3) CrPC had been
explained, but the question as to whether a default
sentence clause could be made in respect of
compensation payable under Section 357(3) CrPC,
which is central to the decision in this case, had not
been considered.”
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The Court further held: (Vijayan case [(2009) 6 SCC 652 :
(2009) 3 SCC (Cri) 296], SCC p. 659, paras 31-32)
“31. The provisions of Sections 357(3) and 431 CrPC,.
when read with Section 64 IPC, empower the court,
while making an order for payment of compensation,
to also include a default sentence in case of non-
payment of the same.
32. The observations made by this Court in Hari Singh
case [(1988) 4 SCC 551: 1988 SCC (Cri) 984: AIR 1988 SC
2127] are as important today as they were when they
were made and if, as submitted by Dr. Pillay, recourse
can only be had to Section 421 CrPC for enforcing the
same, the very object of sub-section (3) of Section 357
would be frustrated and the relief contemplated
therein would be rendered somewhat illusory.”
24. In Shantilal v. State of M.P. [(2007) 11 SCC 243 : (2008) 1
SCC (Cri) 1], it is stated, that, the sentence of
imprisonment for default in payment of a fine or
compensation is different from a normal sentence of
imprisonment. The Court also delved into the factors to be
taken into consideration while passing an order under
Section 357(3) CrPC. This Court stated: (SCC pp. 255-56,
para 31)
“31. … The term of imprisonment in default of payment
of a fine is not a sentence. It is a penalty which a person
incurs on account of non-payment of a fine. The
sentence is something which an offender must
undergo unless it is set aside or remitted in part or in
whole either in appeal or in revision or other
appropriate judicial proceedings or ‘otherwise’. A term
of imprisonment ordered in default of payment of a
fine stands on a different footing. A person is required
to undergo imprisonment either because he is unable
to pay the amount of fine or refuses to pay such
amount. He, therefore, can always avoid to undergo
imprisonment in default of payment of fine by paying
such amount. It is, therefore, not only the power but
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the duty of the court to keep in view the nature of the
offence, circumstances under which it was committed,
the position of the offender and other relevant
considerations before ordering the offender to suffer
.
imprisonment in default of payment of a fine.”
(emphasis in original)
25. In Kuldip Kaur v. Surinder Singh [(1989) 1 SCC 405: 1989
SCC (Cri) 171: AIR 1989 SC 232] in the context of Section 125
CrPC observed that sentencing a person to jail is
sometimes a mode of enforcement. In this regard, the
Court stated: (SCC p. 409, para 6)
“6. A distinction has to be drawn between a mode of
enforcing recovery on the one hand and effecting
actual recovery of the amount of monthly allowance
which has fallen in arrears on the other. Sentencing a
person to jail is a ‘mode of enforcement’. It is not a
‘mode of satisfaction’ of the liability. The liability can be
satisfied only by making actual payment of the arrears.
The whole purpose of sending to jail is to oblige a
person liable to pay the monthly allowance who
refuses to comply with the order without sufficient
cause, to obey the order and to make the payment. The
purpose of sending him to jail is not to wipe out the
liability which he has refused to discharge. Be it also
realised that a person ordered to pay a monthly
allowance can be sent to jail only if he fails to pay the
monthly allowance ‘without sufficient cause’ to
comply with the order. It would indeed be strange to
hold that a person who ‘without reasonable cause’
refuses to comply with the order of the court to
maintain his neglected wife or child would be absolved
of his liability merely because he prefers to go to jail. A
sentence of jail is no substitute for the recovery of the
amount of monthly allowance which has fallen in
arrears.”
26. From the above line of cases, it becomes very clear,
that, a sentence of imprisonment can be granted for
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Neutral Citation No. ( 2024:HHC:8786 )
default in payment of compensation awarded under
Section 357(3) CrPC. The whole purpose of the provision is
to accommodate the interests of the victims in the
criminal justice system. Sometimes the situation becomes
.
such that there is no purpose served by keeping a person
behind bars. Instead directing the accused to pay an
amount of compensation to the victim or affected party
can ensure delivery of total justice. Therefore, this grant
of compensation is sometimes in lieu of sending a person
behind bars or in addition to a very light sentence of
imprisonment. Hence on default of payment of this
compensation, there must be a just recourse. Not
imposing a sentence of imprisonment would mean
allowing the accused to get away without paying the
compensation and imposing another fine would be
impractical as it would mean imposing a fine upon
another fine and therefore would not ensure proper
enforcement of the order of compensation. While passing
an order under Section 357(3), it is imperative for the
courts to look at the ability and the capacity of the accused
to pay the same amount as has been laid down by the
cases above, otherwise, the very purpose of granting an
order of compensation would stand defeated.
46. This position was reiterated in R. Mohan v. A.K. Vijaya
Kumar, (2012) 8 SCC 721: (2012) 4 SCC (Civ) 585: (2012) 3 SCC (Cri)
1013: 2012 SCC OnLine SC 486 wherein it was observed at page
729:
29. The idea behind directing the accused to pay
compensation to the complainant is to give him
immediate relief so as to alleviate his grievance. In terms
of Section 357(3), compensation is awarded for the loss or
injury suffered by the person due to the act of the accused
for which he is sentenced. If merely an order directing
compensation is passed, it would be totally ineffective. It
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Neutral Citation No. ( 2024:HHC:8786 )of immediate adverse consequences in case of its non-
observance. The whole purpose of giving relief to the
complainant under Section 357(3) of the Code would be
frustrated if he is driven to take recourse to Section 421 of
.
the Code. Order under Section 357(3) must have the
potentiality to secure its observance. Deterrence can only
be infused into the order by providing for a default
sentence. If Section 421 of the Code puts compensation
ordered to be paid by the court on a par with the fine so far
as the mode of recovery is concerned, then there is no
reason why the court cannot impose a sentence in default
of payment of compensation as it can be done in case of
default in payment of fine under Section 64 IPC. It is
obvious that in view of this, in Vijayan [(2009) 6 SCC 652:
(2009) 3 SCC (Cri) 296], this Court stated that the
abovementioned provisions enabled the court to impose a
sentence in default of payment of compensation and
rejected the submission that the recourse can only be had
to Section 421 of the Code for enforcing the order of
compensation. Pertinently, it was made clear thatobservations made by this Court in Hari Singh [(1988) 4
SCC 551: 1988 SCC (Cri) 984] are as important today as they
were when they were made. The conclusion, therefore, isthat the order to pay compensation may be enforced by
awarding a sentence in default.
30. In view of the above, we find no illegality in the order
passed by the learned Magistrate and confirmed by the
Sessions Court in awarding a sentence in default of
payment of compensation. The High Court was in error in
setting aside the sentence imposed in default of payment
of compensation.
47. Thus, there is no infirmity in the order passed by the
learned Trial Court imposing a sentence of imprisonment in case
of default in the payment of compensation.
48. No other point was urged.
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Neutral Citation No. ( 2024:HHC:8786 )
49. In view of the above, the judgments and order passed
by learned Courts below are sustainable and no interference is
.
required with them in the present revision petition.
50. Consequently, the present petition fails and the same
is dismissed. Records of the learned Courts below be sent back
forthwith.
19th September, 2024
(Chander)
r to (Rakesh Kainthla)
Judge
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