2019 (11) TMI 550 - SUPREME COURT

Dishonor of Cheque - section 138 of Negotiable Instruments Act - cheque cannot be drawn towards discharge of whole or in part of any debt, due to short cheque amount than the dues existing - presumption as to negotiable instruments - Section 118(a) and Section 139 of the Act - HELD THAT:- The respondent has not rebutted the presumption of consideration in issuing the cheque on 2.10.2011 - Once the agent of the respondent has admitted the settlement of due amount and in absence of any other evidence the Trial Court or the High Court could not dismiss the complaint only on account of discrepancies in the determination of the amount due or oral evidence in the amount due when the written document crystalizes the amount due for which the cheque was issued.

The accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and the High Court. Both Courts not only erred in law but also committed perversity when the due amount is said to be disputed only on account of discrepancy in the cartons, packing material or the rate to determine the total liability as if the appellant was proving his debt before the Civil Court - Therefore, it is presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the appellant received the same in discharge of an existing debt. The onus, thereafter, shifts on the accused-appellant to establish a probable defence so as to rebut such a presumption, which onus has not been discharged by the respondent.

The respondent is held guilty of dishonour of cheque for an offence under Section 138 of the Act. The respondent shall pay ₹ 10,77,712/- as fine i.e. twice of the amount of cheque of ₹ 5,38,856/- and a cost of litigation of ₹ 1,00,000/- within three months - Appeal allowed.