TMI Blog2019 (11) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in her cross-examination that the cheque was issued under the pressure of the Police and accused had never executed affidavit undertaking therein to pay sum of ₹ 2.00 Lakh. In the case at hand, accused has not been able to rebut the statutory presumption under Ss.118 and 139 of the Act in favour of holder of cheque i.e. complainant and as such, there appears to be no illegality or infirmity in the judgments/order of conviction and sentence passed by learned Courts below. All the ingredients of S.138 of the Act stand duly proved in the case at hand, as such, this Court finds no occasion to interfere with the judgments/order of conviction and sentence recorded by learned Courts below, as such, same deserve to be upheld. The petition at hand is dismissed being devoid of merit. - Cr. Revision No. 184 of 2016 - - - Dated:- 30-10-2019 - Mr. Justice Sandeep Sharma For the Petitioner : Mr. Ajay Kumar Dhiman, Advocate. For the Respondents : Mr. B.L. Soni, Advocate. ORDER SANDEEP SHARMA, J. (ORAL) Instant criminal revision petition filed under S.397 read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the time stipulated in the notice but since he failed to make payment within the time frame stipulated in the notice, complainant was compelled to initiate proceedings against the accused under S.138 of the Act in the competent Court of law. 3. By way of evidence, complainant successfully proved on record issuance of cheque by accused and thereafter its return by the Bank concerned due to insufficient funds in the account of the accused. 4. To the contrary, accused, in his statement under S.313 CrPC, denied the case of the complainant in toto however, despite opportunity, he did not lead any evidence. 5. Learned trial Court, on the basis of the evidence led on record by the complainant, held accused guilty of having committed offence punishable under S.138 of the Act and accordingly, convicted and sentenced the accused as per description given above. 6. Being aggrieved and dissatisfied with aforesaid judgment of conviction and sentence, accused preferred an appeal in the court of learned Sessions Judge, Bilaspur, who vide judgment dated 22.5.2016, dismissed the same, as a result of which, judgment of convic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the complainant, prayed that some more time may be granted to make payment, however, such request has been vehemently opposed by learned counsel for the complainant, who stated that despite there being repeated opportunities afforded to the accused, he has not deposited the entire amount as such, case may be heard and decided on its own merit. 11. I have heard learned counsel for the parties and perused the material available on record. 12. Having heard learned counsel for the parties and perused the material available on record, vis- -vis reasoning assigned in the impugned judgments of conviction and sentence passed by learned Courts below, this Court finds no illegality or infirmity in the same, rather, this Court is convinced and satisfied that both the learned Courts below have dealt with each and every aspect of the matter meticulously and there is hardly any scope left for this Court to interfere. 13. Evidence led on record by complainant, if read in its entirety, clearly suggests that the complainant has successfully proved on record that the accused firstly executed an affidavit (Ext. C-8) undertaking therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attan (Ext. C-9). 16. Accused in his statement under S.313 CrPC, specifically admitted that Brahmi Devi executed agreement to sell in favour of the complainant Smt. Roopan Devi, for sale consideration of ₹ 2.00 Lakh and he was witness of the said agreement alongwith brother Ram Rattan. He also admitted execution of affidavit Ext. C-8 in favour of complainant, whereby he had agreed to pay ₹ 2.00 Lakh within one month to the complainant. He stated that the cheque was not given to the complainant by him. Though the accused, in his statement under S.313 CrPC, denied the case of the complainant in toto, but careful perusal of cross-examination conducted upon complainant and other witnesses, clearly suggests that the accused made an attempt to carve out a case that cheque (Ext. C-3) was issued by him under pressure from the Police but, in this regard, no cogent and convincing evidence ever came to be led on record by the accused. Moreover, accused in his statement under S.313 CrPC, nowhere stated that the cheque was procured by complainant after creating police pressure. 17. Leaving everything aside, accused has nowhere disputed the issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused issued cheque in the sum of ₹ 2.00 Lakh in favour of the complainant, as per affidavit executed by him, whereby he agreed to pay sum of ₹ 2.00 Lakh allegedly taken by Brahmi Devi from the complainant. 21. At this stage, reliance is placed upon a judgment rendered by Hon'ble Apex Court in Hiten P. Dalal v. Bartender Nath Bannerji , (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 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 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...... 22. 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 the nature referred to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely upon the material submitted by the complainant. Needless to say, if the accused/drawer of cheque in question neither raises a probable defence nor is able to contest existence of a legally enforceable debt or liability, statutory presumption under S.139 of the Act regarding commission of the offence comes into play. It would be apt to reproduce following paras of judgment (supra) herein below: 23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that Section 139 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 the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy. 26. Learned counsel for the accused also argued that learned Courts below have failed to properly appreciate the other defence raised by the accused that the complainant had no capacity to lend the money. While placing reliance upon recent judgment rendered by Hon'ble Apex Court in Basalingappa vs. Mudibasappa, Cr. Appeal No. 636 of 2019 decided on 4.9.2019, learned counsel for the accused further argued that once probable defence with regard to capacity of complainant to lend money was raised by the accused, onus was upon the complainant to prove that he had sufficient money to lend. 27. In the aforesaid judgment, Hon'ble Apex Court, reiterated that S.139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, complainant during his cross-examination, failed to give satisfactory reply qua his financial capacity to pay ₹ 6.00 Lakh, Hon'ble Apex Court came to be convinced that probable defence of accused has been raised, which shifted the burden on the complainant to prove his financial capacity and other facts. 29. In the case at hand, probable defence with regard to procurement of cheque by creating Police pressure appears to have been taken very casually because, if statement of the accused recorded under S.313 CrPC is read in its entirety, it is/was none of the case of the accused that he issued cheque under Police pressure, but even if such defence is tested on the touchstone of the evidence led on record by respective parties, same deserves outright rejection. In the case at hand, careful perusal of the complaint filed by complainant under S.138 clearly suggests that she set up a case that she paid ₹ 2.00 Lakh to Brahmi Devi in lieu of agreement to sell but when she failed to execute the sale deed, affidavits came to be sworn in by Brahmi Devi, Pawan Kumar and Ram Rattan, to the effect that they would pay ₹ 2.00 Lakh to the complainant. No su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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