TMI Blog2020 (12) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... tal clear that, the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act and he needs to be sentenced accordingly - The Section 138 of Negotiable Instruments Act, 1881 provides punishment both imprisonment which may extend two years or with fine which may extend to twice the amount of cheque, or with both. The offences under Negotiable Instrument Act, are regulatory offences intend to give sanctity to the negotiable instruments. Keeping in mind the settled principles regarding imposition of sentence in cheque bounce case, the accused needs to be imposed the fine double the cheque amount. In this case the cheque amount is ₹ 9,80,000/-. The case of the year 2012. Now we are in the end of the year 2020. So, nearly eight years the case is pending. Therefore, the imposition of double the cheque amount as a fine is a proper sentence. The Criminal Appeal filed under Section 378 (4) of Code of Criminal Procedure by the appellant / complainant is allowed. - CRIMINAL APPEAL NO. 200083/2014 - - - Dated:- 23-12-2020 - THE HON'BLE MR.JUSTICE P.N.DESAI FOR THE APPELLANT : SRI A. VIJAY KUMAR, ADVOCATE) FOR THE RESPONDENT : SRI. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggrieved by the same this appeal is filed on the following grounds:- a) That the impugned judgment of the Trial Court is not sustainable and liable to be set-aside. b) The accused has not led evidence to discharge the presumption in favour of complainant. c) The defence of the accused was notprobable. d) The Trial Court failed to consider the presumption under Sections 139 and 118 of N.I. Act . e) No evidence is adduced to probabalise the defence. f) The Trial Court has not properly appreciated the decisions referred. With these main contentions the appellant has prayed to allow the appeal. 07. Heard Sri. A. Vijaykumar, learned counsel for the appellant and Sri. Faizuddin K. Zardi, advocate for learned counsel for the respondent. 08. The learned counsel for the appellant submitted that issuance of cheque and signature on cheque is not denied by the accused. Presumption under Negotiable Instruments Act is available to complainant. The presumption is not rebutted by the accused either in the cross-examination or in the defence evidence. The defence of the accused is that there was no legally enforceable debt, the source of amount is not proved, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 057 in the case of Veerayya vs. G. K. Madivalar, 3) ILR 2008 KAR 4629 in the case of Shiva Murthy vs Amruthraj. With these main contentions the accused counsel prayed to dismiss the appeal. 10. From the above materials, evidence and arguments the points that would arise for my consideration are as under:- 01. Whether the learned Trial Court has appreciated the evidence before the court in the light of the sound principles regarding appreciation of evidence in cases arising out of 'Cheque Bounce under Negotiable Instruments Act, 1881? 02. Whether the Judgment passed by the Trial Court in C.C.No.2088/2012 dated 11.03.2014 is illegal, perverse and needs interference by this Court? 11. My answer to the above points is as under for the reasons given below. 12. The undisputed contentions as borne out from the records are that, the issuance of cheque - Ex.P.1 in question is admitted by the accused. The accused has not denied his signature on cheque nor he has disputed that the cheque does not belong to him. It is also undisputed that the cheque in question dated 15.07.2011, when presented to the bank by complainant, it was returned with endorsement that amount in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed further defence is that cheque is given as a security for chitt transaction. His main contention is that he has repaid the entire cheque amount and not taken back the cheque. 16. In the light of the case of complainant and defence of the accused, the evidence in this case will have to be appreciated. PW.1 - Mohan Kumar - complainant in his examination-in-chief has reiterated the complaint averments. He has stated about the loan borrowed by the accused. He has also produced the cheque - Ex.P.1 which is admittedly signed by the accused. Exs.P.2 and 3 are the Bank Endorsements showing that the said cheque was returned with endorsement as funds insufficient. Ex.P.4 is the demand notice. Ex.P.5 is the postal receipt. Ex.P.6 is the un-served postal receipt. Ex.P.7 is the bank pass book. So, all these documents clearly indicate the complainant has proved ingredients of Section 138 of N.I.Act . Though PW.1 was cross-examined there is nothing in his evidence so as to rebut the presumption under Section 139 of N.I.Act . The Trial Court has quoted the extracts of some of his deposition of PW.1 regarding he has not obtained on demand promissory note, separate agreement and complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is immaterial 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. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 39. It is not the case of the respondent - accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent - accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 N.I. Act. It appears that both, the Learned Trial Court as well as the High Court, have committed error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139 of N.I. 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 . 20. The learned counsel also relied upon the decision of the learned Single Judge of this Court reported in 2019 (4) AKR 562 in the case of H. G. Nagaraja vs. H. Suresh Naika, at Para Nos.8, 9, 10 and 11, it is held as under:- 8. Be that as it may. Even as could be seen from the defence taken by the accused during the course of cross- examination that the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presumption placed on him by Section 139 of the Act. Accordingly, the High Court recorded a finding of conviction. 9. On going through the said paragraph it reveals that Section 139 of the N.I. Act mandates the Court to draw a presumption that the said cheque has been issued in discharge of debt or liability. However, the accused is permitted to rebut the said presumption on preponderance of probabilities to show that the complainant was not having any capacity to lend money and there was no legally recoverable debt or liability and the said cheque has been issued for the purpose of security. It is for the accused to prove his defence, when once he has taken a specific contention that the said cheque has been issued to one Ravindranath for the purpose of security and the same has been misused by the complainant, burden is on the accused to prove the same. 10. Even though during the course of cross-examination of PW.1 it has been suggested that the said cheque has been issued as a security to Ravindranath and the same has been misused, the said suggestion has been denied. Apart from that neither the accused has stepped into the witness box nor produced any document. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same is liable to be set aside and the accused is liable to be convicted. 21. There is also a decision of the Hon'ble Supreme Court reported in AIR 2019 SC 1876 Rohitbhai Jivanlal Patel vs State of Gujarat and another, wherein at Para Nos.19 it is held as under:- 19. Hereinabove, we have examined in detail the findings of the Trial Court and those of the High Court and have no hesitation in concluding that the present one was clearly a case where the decision of the Trial Court suffered from perversity and fundamental error of approach; and the High Court was justified in reversing the judgment of the Trial Court. The observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of fact etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn the cheque, but he did not return the cheque. Accused has further stated that he has purchased one plot from complainant for ₹ 3,00,000/-, but he was not given possession. So, for that purpose there is a dispute. This is accused defence. But no documents are produced to show that there was any chitt fund business run by the complainant. If at all the complainant has not returned the cheque why no intimation was given to the bank to stop payment. No criminal case is filed against the complainant in this regard. No action is taken for filing this complaint if at all this is a false case. So, the accused in his exanimation-in-chief never rebuts any statutory presumption arising in favour of complainant. In the cross-examination he has admitted that he has no documents to show that complainant was running a chitt fund business. He has also admitted that he has not filed any suit seeking possession of the land sold by the complainant. He has also stated that he do not know whether the plots were sold by the complainant are still in existence or not. He has clearly admitted that Ex.P.1 - cheque belongs to him and Ex.P.1(a) is his signature. So, his evidence will not help to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in that decision has no application to the evidence and facts of this case. Therefore, that decisions in no way help the accused. In the light of the principles stated in the above referred decisions of the Hon'ble Supreme Court, if the present appeal, the judgment and evidence placed on record are considered then it is evident that the complainant has proved by legally admissible evidence that the accused has borrowed loan of ₹ 9,80,000/- and issued cheque - Ex.P.1 in discharge of the said debt or liability which is legally recoverable. The accused has failed to rebut statutory presumption in favour of complainant. The Trial Court has not appreciated the principles stated by the Hon'ble Supreme Court and this Court in the cases under Negotiable Instruments Act, particularly cheque bounce case. The Trial Court has failed to appreciate the burden of proof and drawing presumption. Only on untenable contentions and evidence, the Trial Court has acquitted the accused. Therefore, the judgment of the Trial Court is illegal, perverse and needs interference by this Court and liable to be set aside. 26. It is crystal clear that, the accused has committed an offence punis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
