TMI Blog2001 (11) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... en as compensation to the complainant. 3. It may be observed that the learned trial court has found the petitioner guilty of having committed offence under section 138 of the Act whereunder also notice of accusation was served upon him. This seems to be an omission on the part of the court below. The observations made in this behalf by the learned appellate court below are correctly recorded. 4. At the time of hearing of these revision petitions, it was urged by Mr. Shukla that the account of the firm M/s. Rajiv Mechanical Works, Sirhind was settled between its partners and according to him, a sum of Rs. 2,00,000 by means of demand draft was paid by the petitioner to the deceased. This demand draft was issued from Sirhind. He further submitted that the account at Una in State Bank of Patiala was opened by the deceased in connivance with his son Chander Mohan Chawla, as well as bank officials. It was Chander Mohan Chawla who had introduced the petitioner in the account opening form with the State Bank of Patiala at Una. According to him, witnesses on the agreement exhibit CW1/A were not known to the petitioner. In fact, there was no need for his client to open an account a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under certificate of posting. When the petitioner failed to pay the amount in question, five complaints were filed on different dates as is revealed by the record. 8. It may not be out of place to notice here that at the time of hearing, it was not disputed on behalf of the petitioner that he is not a signatory to the cheques and/or to the agreement in question. Similarly, it was also not pleaded that notice regarding dishonour was not served upon the petitioner and/or it was beyond time in all these cases. 9. The only ground urged was that the petitioner was forced to execute the agreement and issue cheques numbering eight as detailed in the agreement at Una by the deceased complainant. After having paid a sum of Rs. 2,85,000, there was hardly any occasion for either entering into an agreement or for issuance of cheques. Thus, the cheques were not issued by the petitioner for any debt or other liability legally enforceable, as such no benefit can be derived from the statutory presumption under section 138 of the Act. 10. Admittedly, after the notice was issued in each of these cases, the petitioner has not paid the amount in question. 11. Here the relevant sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e after the other after dishonour of the cheques in question. 15. On the basis of the evidence on record as well admitted facts as noted hereinabove, the presumption under section 118( a ) of the Act is not rebutted. As such reliance placed on behalf of the petitioner on Kundan Lal Rallaram v. Custodian, Evacuee Property AIR 1961 SC 1316, is misconceived. In this behalf, it may also be observed that the son of the petitioner had appeared as DW-3. He admitted the contents of the document exhibit DW-3/A having been signed by his father and its being on the pad of the firm. This is dated June 3, 1994, and when translated into English, it reads as under : "I, Yudhister Lal son of Ved Prakash resident of Sirhind owes to Shri P. N. Chawla Rs. 4,21,646 (rupees four lakhs twenty-one thousand six hundred and forty-six only) and I will pay the same at the earliest. (Sd.) Yudhishter Lal (In English). June 3, 1994." It is thereafter that the agreement exhibit CW-1/A was executed between all the three partners of the firm M/s. Rajiv Mechanical Works. In this document, there is a recital of Rs. 2,00,000 lakhs having been paid by the petitioner to the deceased complainant on June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... economic life in a developing economy of a country like India, that the provisions have been incorporated to safeguard the trust of a creditor in the drawer of a negotiable instrument, like a cheque. 19. In Electronics Trade Technology Development Corpn. Ltd. v. Indian Technologists Engineers (Electronics) (P.) Ltd. [1996] 86 Comp. Cas. 30, the Supreme Court while dealing with a case where a cheque was returned with different endorsements held as under : "It would thus be clear that when a cheque is drawn by a person on an account maintained by him with the banker for payment of any amount of money to another person out of the account for the discharge of the debt in whole or in part or other liability is returned by the bank with the endorsement like, ( 1 ) in this case, I refer to the drawer ; ( 2) instructions for stoppage of payment , and ( 3 ) stamp exceeds arrangement , it amounts to dishonour within the meaning of section 138 of the Act. On issuance of the notice by the payee or the holder in due course after dishonour, to the drawer demanding payment within 15 days from the date of the receipt of such a notice, if he does not pay the same, the statutory p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt while examining the objects and reasons of bringing section 138 of the Act held as under : "On a reading of the provisions of section 138 of the Negotiable Instruments Act it is clear that the ingredients which are to be satisfied for making out a case under the provision are : ( i )a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; ( ii )that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; ( iii )that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank; ( iv )the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probable that a prudent man ought to accept it or to establish that the effect of the material brought on the record, in its totality, rendered the existence of the fact presumed, improbable. ( Vide Trilok Chand Jain v. State of Delhi [1975] 4 SCC 761). The appellant has done neither. In the absence of any such proof the presumptions under sections 138 and 139 must prevail." (p. 585) 23. In K.N. Beena v. Muniyappan [2001] 107 Comp. Cas. 459 (SC), it was held as under : "In our view the impugned judgment cannot be sustained at all. The judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonoured cheque is on the complainant. It appears that the learned judge had lost sight of sections 118 and 139 of the Negotiable Instruments Act. Under section 118, unless the contrary was proved, it is to be presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. Under section 139 the court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under section 138, the court has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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