Himachal Pradesh High Court
Virender Singh vs Ajay Singh on 20 September, 2024
Neutral Citation No. ( 2024:HHC:8882 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 240 of 2022
.
Reserved on: 23.8.2024
Date of Decision: 20.9.2024.
Virender Singh ...Petitioner
Versus
Ajay Singh
Coram
r to ...Respondent
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Sanjeev Kumar Suri, Advocate.
For the Respondent : Mr. Dheeraj K. Vashisht, Advocate.
Rakesh Kainthla, Judge
The present revision is directed against the judgment
dated 9.11.2021, passed by learned Additional Sessions Judge-I,
Una, District Una, H.P. (learned Appellate Court), vide which the
judgment dated 2.9.2019 and order of sentence dated 5.9.2019,
passed by learned Judicial Magistrate First Class, Court No.2,
Amb, District Una, H.P. (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
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 (NI Act). It was asserted that the complainant is
a government contractor. He had very good relations with the
accused. The accused approached the complainant on 21.5.2016
and demanded ₹2.00 lakh for his business from the
complainant. The complainant had ₹85,000/- with him and he
obtained ₹ 1,15,0000/- from his father, who had retired as a
government employee and is an agriculturist. The accused
assured to return the amount. The complainant demanded the
money from the accused. The accused issued a cheque of ₹2.00
lakh drawn on Kangra Central Cooperative Bank, Branch Office
Gagret. The complainant presented the cheque before his bank,
from where it was sent to the bank of the accused. However, the
cheque was dishonoured with an endorsement of ‘funds
insufficient’. The complainant issued a notice to the accused
through registered post acknowledgement due. The notice was
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duly served upon the accused. An acknowledgement regarding
the delivery was received by the learned counsel for the
.
complainant. The accused failed to pay the amount despite the
receipt of a valid notice of demand; hence, the complaint was
filed to take action 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 Section 138 of the NI Act. The accused 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 wanted to lead defence evidence; however, no
evidence was produced despite sufficient opportunities having
been granted; hence, the learned Trial Court closed the evidence
of the accused vide order dated 1.8.2019.
6. Learned Trial Court held that the accused had not
disputed the issuance of the cheque in the cross-examination of
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the complainant. He suggested to the complainant that the
accused had taken ₹ 50,000/- from the complainant and issued
.
a blank cheque as security which showed that the accused
admitted the issuance of the cheque to the complainant. A
cheque carries with it a presumption of consideration and the
burden lies upon the accused to rebut this presumption. The
accused failed to rebut the presumption. The cheque was
dishonoured with an endorsement of ‘insufficient funds’. The
accused failed to pay the amount despite the receipt of a notice
of demand. All the ingredients of the commission of an offence
punishable under Section 138 of the NI Act were satisfied. 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 eight months and to pay a
fine of ₹2,50,000/- and in case of default in the payment of fine
to further undergo simple imprisonment for six months.
7. Being aggrieved from the judgment and order passed
by the learned trial Court, the accused filed an appeal, which was
decided by learned Additional Sessions Judge-I, Una, District
Una, H.P. (learned Appellate Court). Learned Appellate Court
concurred with the findings recorded by the learned Trial Court
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that the accused had not disputed the issuance of the cheque and
the cheque carried with it a presumption of consideration. The
.
accused failed to provide any evidence to rebut this
presumption. The version of the accused that he had taken
₹50,000/- as a loan and had issued a blank cheque as security
was not established on the record. The cheque was dishonoured
due to insufficient funds and the accused failed to pay the
amount despite the receipt of a valid notice of demand. Hence,
the accused was convicted and sentenced as aforesaid.
8. Being aggrieved from the judgments and order
passed by learned Courts below, the accused has filed the
present revision asserting that learned Courts below erred in
appreciating the material placed before them. The accused had
duly rebutted the presumption under Sections 118 and 139 of the
NI Act. The complainant had failed to prove that the cheque was
issued in discharge of the legal liability, whereas the defence of
the accused that he had issued a security cheque which was
misused by the complainant was duly proved. The learned
Courts below did not send the cheque for comparison. When the
accused had disputed the writing of the cheque, it was the duty
of the Court to send the writing for comparison. The accused had
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established his case by suggestions made to the complainant.
The complainant had failed to comply with the mandatory
.
provisions of the law. Therefore, it was prayed that the present
revision be allowed and the judgments and order passed by
learned Courts below be set aside.
9. I have heard Mr. Sanjeev Kumar Suri, learned counsel
for the petitioner/accused and Mr. Dheeraj K. Vashisht, learned
counsel for the respondent/complainant.
10. Mr. Sanjeev Kumar Suri, 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 that he had advanced the loan to
the accused. He had failed to examine his father to corroborate
his version that an amount of ₹1,15,000/- was taken by the
complainant from him. He had also not produced any record of
the withdrawal of the amount from the bank. The accused had
suggested to the complainant that he had taken a loan of
₹50,000/- which was returned by him and the complainant had
taken a blank cheque from the accused. This version was highly
probable because an income tax return was not filed to establish
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that the complainant had advanced a loan to the accused. No
document was executed between the parties. Learned Courts
.
below erred in appreciating the material placed before them and
in convicting and sentencing the accused. Therefore, he prayed
that the present revision be allowed and the judgments and
order passed by learned Courts below be set aside.
11. Mr. Dheeraj K. Vashisht, learned counsel for the
respondent/complainant supported the judgments and order
passed by learned Courts below. He submitted that the learned
Courts below had rightly held that the cheque was issued for
consideration. Sections 118 and 139 of the NI Act carry such a
presumption. There is no infirmity in the judgments and order
passed by learned Courts below. He 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
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Neutral Citation No. ( 2024:HHC:8882 )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 revision
against conviction is not supposed to exercise the
jurisdiction like to the appellate court and the scope ofinterference in revision is extremely narrow. Section 397
of the Criminal Procedure Code (in short “CrPC”) vests
jurisdiction for the purpose of satisfying itself or himself
as to the correctness, legality or propriety of any finding,sentence or order, recorded or passed, and as to the
regularity of any proceedings of such inferior court. The
object of the provision is to set right a patent defect or an
error of jurisdiction or law. There has to be 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
to call 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 of jurisdiction or law or the perversity which
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Neutral Citation No. ( 2024:HHC:8882 )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 asto the legality and 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 itmay not be appropriate 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 judgmentsof 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 evidenceis ignored or judicial discretion is exercised
arbitrarily or perversely. These are not exhaustive
classes but are merely indicative. Each case wouldhave 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 ofthe 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 has been 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 of charge is
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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 complainant reiterated the contents of the
complaint in the affidavit (Ex.CW1/A) filed by him. He stated in
his cross-examination that his account never had ₹2.00 lacs. He
denied that he works as a moneylender. He volunteered to say
that he was a contractor in the IPH Department. His Income Tax
Return is filed by his Accountant. He only pays money to the
labourer and does not advance any money to the people. He
volunteered to say that the accused was his friend and that is
why he had advanced money to the accused. His accountant had
died. He did not remember the income tax paid by him in the
year 2016. The accused was his close friend and he was in
visiting terms to the house of the accused. He had paid money to
the accused in May 2016. He admitted that his father was a
retired Government servant. He was also an agriculturist. He
could not produce any record regarding the income of his father.
His father had paid the money from his savings. He denied that
the accused had taken ₹50,000/- from him and had issued a
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blank cheque as a security. He denied that the accused had not
filled out the cheque and that he had filled the amount in the
.
cheque. He denied that he had made a false complaint against
the accused and the accused is not to pay anything to him (the
complainant).
17. The cross-examination of this witness clearly shows
that the accused had not disputed the issuance of the cheque. It
was suggested to the complainant that the accused had issued a
blank cheque as a security when the complainant advanced a
sum of ₹50,000/- 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::: Downloaded on – 20/09/2024 20:39:42 :::CIS
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Neutral Citation No. ( 2024:HHC:8882 )the 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 ofthe accused was 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 furtherstated that on the third night, he was carried away
blindfolded on a bicycle to a different place andwhen his eyes were unfolded, he could see his
younger brother Kumud Kakati (P.W.-2) and his
wife Smt. Prema Kakati (P.W.-3). The place wasDuliapather, which is about 6-7 km. away from his
village Sakrahi. The witness identified the
appellant-Tarun Bora and stated that it was he whotook him in an ambassador car from the 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
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appellant and 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 thetime of occurrence. But curiously enough, he was
not cross-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 wasnot 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
a shirt of cream colour. In answer to thatsuggestion, PW 4 said: “It is not correct that
Dharam Vir accused was wearing a shirt of a cream
colour and not a white colour 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
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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.
.
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. Significantly, the accused has not stated any such
fact in his statement recorded under Section 313 Cr.P.C. The
accused has also not stepped into the witness box to establish
that the complainant had only advanced a sum of ₹50,000/- to
him and he had issued a blank cheque in favour of the
complainant. Therefore, both of these defences have not been
established.
19. The accused did not dispute in the cross-
examination of the complainant that the cheque was issued by
him. He claimed that a blank cheque was issued as a security
which means that the issuance of the cheque was not disputed. 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
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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 notby a bare explanation which is merely plausible. A
fact is said to be proved when its existence is
directly established or when upon the material
before it the Court finds its existence to be so
probable that a reasonable man would act on thesupposition that it exists. Unless, therefore, the
explanation is supported by proof, the
presumption created by the provision cannot besaid 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 presumption
shall be raised under Section 139 that the cheque was
issued in discharge of debt or liability.”
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21. 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 thestatement 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 ofsecurity 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
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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.
22. 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
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Triyambak S. Hegde v. 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 notdisputed. 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 bethe position, as noted by the courts below a presumption
would arise under Section 139 in favour of the appellant
who was the holder of the cheque. Section 139 of the 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
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regard has relied on the decision of this Court in K.
Bhaskaran v. Sankaran Vaidhyan Balan [K.
Bhaskaran v. Sankaran Vaidhyan Balan, (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 inSection 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 thecheque 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 1to 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. Mudibasa
ppa, (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
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 standard::: Downloaded on – 20/09/2024 20:39:42 :::CIS
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Neutral Citation No. ( 2024:HHC:8882 )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 preponderance of
probabilities can be drawn not only from the
materials brought on record by the parties but also
by reference to the circumstances upon which they
rely.
25.4. That it is not necessary for the accused to come
in the witness box in support of his defence, Section
139 imposed an evidentiary burden and not a
persuasive burden.
25.5. It is not necessary for the accused to come into
the witness box to support his defence.
26. Applying the 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 into is 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 he retired 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 the year 2010, the
complainant entered into a sale agreement for which
he paid an amount of Rs 4,50,000 to Balana Gouda
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 of 2012 was filed by the complainant, copy of
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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.”
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
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Neutral Citation No. ( 2024:HHC:8882 )
rebuttal or not would depend on the facts and
circumstances of each case.”
23. 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 anydebt 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 “probabledefence” 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], thisCourt notes that Section 139 of the NI Act is an example of
reverse onus (see Rangappa v. Sri Mohan [Rangappa v. SriMohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1
SCC (Cri) 184]). It is also true that this Court has foundthat 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…”
24. Similar is the judgment in P. Rasiya v. Abdul Nazer,
2022 SCC OnLine SC 1131 wherein it was observed:
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“As per Section 139 of the N.I. Act, it shall be presumed,
unless the contrary is proved, that the holder of a cheque
received the cheque of the nature referred to in Section
138 for discharge, in whole or in part, of any debt or other.
liability. Therefore, once the initial burden is discharged
by the Complainant that the cheque was issued by the
accused and the signature and the issuance of the cheque
are not disputed by the accused, in that case, the onus will
shift upon the accused to prove the contrary that the
cheque was not for any debt or other liability. The
presumption under Section 139 of the N.I. Act is a
statutory presumption and thereafter, once it is presumed
that the cheque is issued in whole or in part of 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.”
25. 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 shall be presumed until the contrary is proved, thatevery 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::: Downloaded on – 20/09/2024 20:39:42 :::CIS
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Neutral Citation No. ( 2024:HHC:8882 )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]]
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
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Neutral Citation No. ( 2024:HHC:8882 )
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 theJury to reach the conclusion in the absence of
evidence to the contrary from the opponent but
if the opponent does offer evidence to the
contrary (sufficient to satisfy the Judge’srequirement of some evidence), the
presumption ‘disappears as a rule of law and the
case is in the Jury’s hands free from any rule’.”
39. The standard of proof to discharge this evidential
burden is not as heavy as that usually seen in situations
where the prosecution is required to prove the guilt of an
accused. The accused is not expected to prove the non-
existence of the presumed fact beyond reasonable doubt.
The accused must meet the standard of “preponderance
of probabilities”, similar to a defendant in a civil
proceeding. [Rangappa v. Sri Mohan [Rangappa v. Sri
Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1
SCC (Cri) 184: AIR 2010 SC 1898]]”
26. 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.
27. It was submitted that the complainant had not
produced any material on record to show that he had advanced a
sum of ₹2.00 lacs to the accused. He had not produced his father
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Neutral Citation No. ( 2024:HHC:8882 )to establish that ₹1,15,000/- was paid by him. This submission is
not acceptable. Once it is held that the cheque carried with it a
.
presumption of consideration, the complainant was not
supposed to lead any evidence to show the consideration and the
burden was upon the accused to rebut the presumption. It was
laid down by the Hon’ble Supreme Court in Rohitbhai Jivanlal
Patel v. State of Gujarat (2019) 18 SCC 106: (2020) 3 SCC (Civ) 800:
(2020) 3 SCC (Cri) 575] that once the presumption under Section
139 of the NI Act is drawn, the version of the complainant
regarding source of funds cannot be questioned. It was observed
at page 12o: –
“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 offunds 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 approachof 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.”
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Neutral Citation No. ( 2024:HHC:8882 )
28. 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 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 139read as under:
“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, wasaccepted, 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
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Neutral Citation No. ( 2024:HHC:8882 )
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 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 personon an account maintained by him with a banker for
payment of any amount of money to another personfrom out of that account for the discharge, in whole or
in part, of any debt or other liability, is returned by the
bank unpaid, either because of the amount of moneystanding 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 agreementmade with that bank, such person shall be deemed 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
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Neutral Citation No. ( 2024:HHC:8882 )
accused is not expected to prove his defence beyond
reasonable doubt as is expected of the complainant in a
criminal trial. The accused may adduce direct evidence
to prove that the note in question was not supported by
.
consideration and that there was no debt or liability to
be discharged by him. However, the court need not
insist in every case that the accused should disprove
the non-existence of consideration and debt by leading
direct evidence because the existence of negative
evidence is neither possible nor contemplated. At the
same time, it is clear that bare denial of the passing of the
consideration and existence of debt, apparently would not
serve the purpose of the accused. Something which is
probable has to be brought on record for getting the
burden of proof shifted to the complainant. To disprove
the presumptions, the accused should bring on record such
facts and circumstances, upon consideration of which, the
court may either believe that the consideration and debt
did not exist or their non-existence was so probable that a
prudent man would under the circumstances of the case,
act upon the plea that they did not exist. Apart from
adducing direct evidence to prove that the note in
question was not supported by consideration or that he
had not incurred any debt or liability, the accused may
also rely upon circumstantial evidence and if the
circumstances so relied upon are compelling, the
burden may likewise shift again on to the complainant.
The accused may also rely upon presumptions of fact,
for instance, those mentioned in Section 114 of the
Evidence Act to rebut the presumptions arising under
Sections 118 and 139 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 :
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Neutral Citation No. ( 2024:HHC:8882 )
(2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] returned the
following findings : (Kishan Rao case [Kishan
Rao 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 into
is 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 aprobable 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
mandated by Section 139 of the Act does indeed
include the existence of a legally enforceable debt orliability. 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 ofthe 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 arebuttable 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
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Neutral Citation No. ( 2024:HHC:8882 )
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 onthe accused. The presumption under Section 139 of the
Negotiable Instruments Act is a presumption of law, asdistinguished from a presumption of facts.
Presumptions are rules of evidence and do not conflict
with the presumption of innocence, which requires theprosecution to prove the case against the accused
beyond reasonable doubt. The obligation on the
prosecution may be discharged with the help of
presumptions of law and presumptions of fact unless
the accused adduces evidence showing the reasonable
possibility of the 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].
***
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Neutral Citation No. ( 2024:HHC:8882 )
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 isimmaterial 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 somepayment, would attract presumption under Section 139
of the Negotiable Instruments Act, in the absence ofany 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-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
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Neutral Citation No. ( 2024:HHC:8882 )
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 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
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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.”
.
29. Therefore, the version of the complainant could not
have been doubted because no material was produced by him on
record to show that he had sufficient money with him to advance
the loan to the accused.
30. The accused has not given any evidence to rebut the
presumption of consideration attached to the cheque. He did not
step into the witness box to prove this version. It was held in
Sumeti Vij v. Paramount Tech Fab Industries, (2022) 15 SCC 689:
2021 SCC OnLine SC 201 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 at page 700:
“20. That apart, when the complainant exhibited all these
documents in support of his complaints and recorded the
statement of three witnesses in support thereof, the
appellant has recorded her statement under Section 313 of
the Code but failed to record evidence to disprove or rebut
the presumption in support of her defence available under
Section 139 of the Act. The statement of the accused
recorded under Section 313 of the Code is not substantive
evidence of defence, but only an opportunity to the accused to
explain the incriminating circumstances appearing in the
prosecution case of the accused. Therefore, there is no
evidence to rebut the presumption that the cheques were::: Downloaded on – 20/09/2024 20:39:42 :::CIS
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Neutral Citation No. ( 2024:HHC:8882 )issued for consideration.” (Emphasis supplied)”
31. The accused suggested to the complainant that the
.
cheque was taken as a blank security cheque. The complainant
denied this fact. A denied suggestion does not amount to any
proof, and the learned Courts below had rightly discarded this
version.
32. The accused suggested to the complainant that he
had taken an amount of ₹50,000/- and had returned the same.
He did not provide any evidence to establish this fact. He had not
even filed his statement of account to show this fact. Therefore,
this version of the accused was not proved.
33. There is nothing on record to rebut the presumption
of consideration and the learned Courts below had rightly held
that the accused had failed to rebut the presumption and version
of the complainant that the cheque was issued in discharge of
legal liability was acceptable.
34. The memo of dishonour (Ex.CW1/C) shows that the
cheque was dishonoured with an endorsement of ‘insufficient
funds’. There is a presumption under Section 146 of the NI Act
regarding the correctness of the memo of dishonour. The
accused did not provide any evidence to rebut the presumption,
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therefore, it was also proved that the cheque was dishonoured
due to insufficient funds.
.
35. The complainant stated that he had issued a notice to
the accused. The notice (Ex.CW1/E) has been placed on record.
The acknowledgement (Ex.CW1/G) has also been filed which
bears the initials of someone. The notice was sent to the address
on which the complainant was served and which he has
mentioned in his statement recorded under Section 313 of Cr.P.C.
and the notice of accusation. Therefore, the notice was sent to
the correct address and is presumed to have been served in view
of Section 27 of the General Clauses Act.
36. The accused failed to pay the amount even within 15
days of the receipt of the summons from the Court. It was laid
down in C.C. Allavi Haji vs. Pala Pelly Mohd. 2007(6) SCC 555 that
the person who claims that he had not received the notice has to
pay the amount within 15 days from the date of the receipt of the
summons from the Court and in case of failure to do so, he
cannot take the advantage of the fact that notice was not
received by him. It was observed:
“It is also to be borne in mind that the requirement
of giving of notice is a clear departure from the rule::: Downloaded on – 20/09/2024 20:39:42 :::CIS
37
Neutral Citation No. ( 2024:HHC:8882 )of Criminal Law, where there is no stipulation of
giving of a notice before filing a complaint. Any
drawer who claims that he did not receive the notice
sent by post, can, within 15 days of receipt of summons.
from the court in respect of the complaint under Section
138 of the Act, make payment of the cheque amount
and submit to the Court that he had made paymentwithin 15 days of receipt of summons (by receiving a
copy of the complaint with the summons) and,
therefore, the complaint is liable to be rejected. A
person who does not pay within 15 days of receipt ofthe summons from the Court along with the copy of the
complaint under Section 138 of the Act, cannot
obviously contend that there was no proper service of
notice as required under Section 138, by ignoringstatutory presumption to the contrary under Section 27
of the G.C. Act and Section 114 of the Evidence Act. In
our view, any other interpretation of the proviso
would defeat the very object of the legislation. As
observed in Bhaskaran’s case (supra), if the giving ofnotice in the context of Clause (b) of the proviso was
the same as the receipt of notice a trickster cheque
drawer would get the premium to avoid receivingthe notice by adopting different strategies and
escape from legal consequences of Section 138 ofthe Act.” (Emphasis supplied)
37. Thus, the learned Courts below had rightly held that
the accused had issued a cheque in discharge of legal liability.
The cheque was dishonoured due to insufficient funds and the
accused failed to pay the amount despite the receipt of a valid
notice of demand and he was rightly convicted by the learned
Trial Court.
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Neutral Citation No. ( 2024:HHC:8882 )
38. The learned Trial Court sentenced the accused to
undergo simple imprisonment for eight months and to pay a
.
fine of ₹2,50,000/- for the commission of an offence punishable
under Section 138 of the NI Act. 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: 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 includingcheques in financial transactions. The penal provision of
Section 138 of the Negotiable Instruments Act is intendedto be a deterrent to callous issuance of negotiable
instruments such as cheques without serious intention tohonour the promise implicit in the issuance of the same.”
39. Thus, the sentence of imprisonment for eight
months cannot be said to be excessive.
40. The cheque was issued on 5.1.2017. Learned Trial
Court pronounced the order on 5.9.2019 after the lapse of two
and half years. The complainant had to incur the legal expenses
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Neutral Citation No. ( 2024:HHC:8882 )
and he had to engage a counsel for that. He also suffered a loss of
interest and 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: – r
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. Thus, the compensation of ₹2,50,000/- cannot be
said to be excessive.
42. No other point was urged.
43. Therefore, the judgments and order passed by
learned Courts below are fully sustainable and do not require any
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Neutral Citation No. ( 2024:HHC:8882 )interference in the exercise of revisional jurisdiction.
44. Consequently, the present revision fails and the same
.
is dismissed.
45. Registry is directed to send down the records.
(Rakesh Kainthla)
Judge20th September, 2024
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