TMI Blog2017 (8) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore he got the payment stopped is also not borne out or rather is contrary to the record and again deserves to be rejected for the aforesaid reasons. The findings record by the learned Courts below appears to have been based upon the correct appreciation of the pleadings and evidence and otherwise are in tune with law and therefore, warrants no interference. No merit in this revision petition - Cr. Revision No. 79 of 2009 - - - Dated:- 2-8-2017 - Tarlok Singh Chauhan, J. For the Petitioner : Mr. G.D. Verma, Sr. Advocate, with Mr. B.C. Verma, Advocate For the Respondent : Mr. N.S. Chandel, Advocate ORDER Tarlok Singh Chauhan, Judge The petitioner who has been convicted by the learned Courts below for the offence under Section 138 of the Negotiable Instruments Act, 1881 has filed the instant revision petition. 2. The complainant/respondent had filed complaint under Section 138 of the Negotiable Instruments Act, 1881, (for short the Act ), on the grounds that the petitioner/accused had issued cheque No. RTQ 034402, dated 31.12.1999, amounting to ₹ 53,200/- , which the petitioner/accused had to pay to him in order to discharge of his liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such type of criminal revision petitions. 8. In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799, the Hon ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. 9. In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system . 10. In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon ble Apex Court observed that High Court committed an error in making a re-assessment of the evidence as in its revisional jurisdiction it was not justified in substituting its own view for that of the learned Magistrate on a question of fact . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon ble Supreme Court held as under: In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tentamount to gross miscarriage of justice 17. In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the Hon ble Supreme Court held as under:- The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. S.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. 19. Section 138 of the Act was incorporated with a specific object of enacting a special provision to impose a strict liability so far as the negotiable instruments are concerned. 20. The purpose of attaching criminal liability to the offence under Section 138 of the Act, which is more in the nature of a civil dispute is only to ensure the credibility of cheques as Negotiable Instruments. 21. In Dalmia Cement (Bharat) Ltd. vs. Galaxy Traders Agencies Ltd. (2001) 6 SCC 463, the Hon ble Supreme Court has explained the offence under Section 138 of the Act in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar or with fine which may extend to twice the amount of cheque or with both. To make the dishonor of the cheque as an offence, the aggrieved party is required to present the cheque 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 and the payee or the holder in due course of the cheque makes a demand for payment of the cheque amount 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 return of the cheque as unpaid and drawer of such cheque fails to make the payment of the amount within 15 days of the receipt of the said notice. Section 139 refers to presumption that unless the contrary is proved, the holder received the cheque of the nature referred to under Section 138 for the discharge in whole or in part or of any debt or other liability. Section 140 restricts the defence in any prosecution under Section 138 of the Act and Section 141 refers to such offence committed by the companies. Section 142 provides that, notwithstanding anything contained in the code of Criminal Procedure, no court shall take cognizance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn for the discharge in whole or in part of any debt or other liability is answered by the third presumption available to the Banks under Section 139 of the Negotiable Instruments Act. This section provides that 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. The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. 21. Because both Sections 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras v. A. Vaidyanatha Iyer, AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (ibid). Such a presumption is a presumption of law, as disting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if drawn may be rebutted by an explanation which might reasonable by true and which is consistent with the innocence of the accused. On the other hand in the case of a mandatory presumption the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless the contrary is proved which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or where 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 . [See also V.D. Jhingan v. State of Uttar Pradesh, AIR 1966 SC 1762; Sailendranath Bose v. State of Biha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonor 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 accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of prepo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity as envisaged under Section 138 of the Act. 28. As observed earlier, the specific case of the petitioner/accused is that no case whatsoever is made out for commission of the offence under the Act and at best it is a case of Civil dispute and in support of his contention, the learned counsel for the petitioner/accused has placed reliance upon the following judgments:- 1. Indus Airways Private Limited and others v. Magnum Aviation Private Limited and another (2014) 12 SCC 539. 2. Omniplast Private Limited v. Standard Chartered Bank and others (2015) SCC 693. 3. Jitendra Vora v. Bhavana Y. Shah and another, (2015) 16 SCC 744. 29. In Indus Airways Private Limited and others v. Magnum Aviation Private Limited and another (2014) 12 SCC 539, the Hon ble Supreme Court held that existence of legally enforceable debt or other liability is an essential condition for constitution of offence under Section 138 and therefore the cheque issued for advance payment in the case before it did not show any existing liability in failed transaction as agreed materials were not supplied and hence no liability under Section 138 was made out. It was further held that debt or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 138 of the NI Act. The Delhi High Court has travelled beyond the scope of Section 138 of the NI Act by holding that the purpose of enacting Section 138 of the NI Act would stand defeated if after placing orders and giving advance payments, the instructions for stop payments are issued and orders are cancelled. In what we have discussed above, if a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise and material or goods for which purchase order was placed is not supplied by the supplier, in our considered view, the cheque cannot be said to have been drawn for an existing debt or liability. 30. As regards reliance placed on Omniplast Private Limited v. Standard Chartered Bank and others (2015) SCC 693, suffice it to say that the said case was decided on its peculiar facts and therefore of no assistance to the petitioner. 31. Learned counsel for the petitioner/accused would thereafter argue that complaint was bad for no-joinder of necessary party inasmuch as Smt. Prabhi Devi and Parkash Chand, who were specifically named in the agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent/complainant, extract of account Ext.PW2/A. He further deposed that cheque had been returned to the bank by the Punjab National Bank through memo Ex.CW1/B as there was insufficient funds in the account. 35. PW3 Atma Ram has proved the agreement dated 4.7.1999 Ex.CW2/X wherein the petitioner had agreed to pay ₹ 98,000/- to the complainant/respondent regarding which cheques worth ₹ 53,200/- and ₹ 44,800/-, respectively were issued in his presence and in the presence of one Haminder Thakur to the respondent. Notably he is one of the signatory to the agreement. 36. In rebuttal petitioner/accused examined DW1 Om Parkash Panwar from Punjab National Bank who have produced the record of cheque return register is Ex.CW1/C and stated that the in cheque return memo Ex. CW1/B, it was maintained that cheque was issued from the different account. While being crossexamined by the complainant, this witness categorically stated that on the day of presentation of cheque, the petitioner was having ₹ 1309/- in his account and thus was having insufficient funds . 37. DW2 Dalip Thakur, who was known to the parties has stated that he had got the matter com ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
