TMI Blog2021 (2) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. Despite civil remedy, Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induces the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly. On reading of the entire evidence of complainant and accused it is evident that, the accused has miserably failed to rebut statutory presumption. In view of section 20 of Negotiable Instrument Act, when once a person signs and delivers an negotiable instrument, the person signing shall be liable upon such instrument. So the contention that the cheque was issued blank cheque does not hold good in view of section 20 of Negotiable Instrument Act. The Hon'ble Suprme Court recently in BIR SINGH VERSUS MUKESH KUMAR [ 2019 (2) TMI 547 - SUPREME COURT] held that the cheque duly signed and voluntarily made over to payee, was in discharge of debt or liability arises irrespective of whether the cheque was post dated or blank cheque for filling by payer or any other person in the absence of evidence of undue influence or coer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 of Code of Criminal Procedure before the J.M.F.C Court stating that, the accused has committed an offence punishable under section 138 of Negotiable Instrument Act. 4. It is the case of the complainant that, he was having a dealership of tractor and its equipment at Vijayapur and he was carrying on the business in the name of M/s Rajashree Agro Services. The accused and complainant were close friends and there were many transactions between them. The accused purchased tractor from the complainant. He used to take hand loan from the complainant for his family necessity and return back. It is the case of the complainant that, on 11-06- 2003 the accused approached the complainant with a request to lend hand loan of ₹ 52,000/- for his family needs and for repair of Tractor. Looking to the previous transaction the complainant agreed to pay ₹ 52,000/- and as security of the said amount, he issued post dated cheque dated: 26-07-2003 drawn in the Grameen Bank, branch Aski Taluka Sindagi bearing cheque No0136305 for ₹ 52,000/-. He also executed a 'Kaigad patra' i.e. Hand loan deed for the same amount. As requested by the accused, the complainant presente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence has wrongly acquitted the accused. Even the suit is instituted by the complainant against the accused on the basis of Ex.P.7 in O.S. No.160/2006 for recovery of money before the I Addl. Senior Civil Judge which came to be decreed. Therefore the Judgment of the trial court is bad in law. The evidence of DW.2 will not help the accused. With these main grounds he has prayed to set aside the Judgment of acquittal and convict the accused. 10. Heard Sri.S.S.Mamdapur learned counsel for the appellant/complainant and Sri.Ravi G.Madbhavi learned counsel for accused/respondent. 11. The learned counsel for appellant argued that, the execution of cheque and promissory note i.e. hand loan deed is admitted by the accused. Suit is decreed on hand loan deed document is also admitted. There is evidence of PW.1 which clearly supports the document. Apart from that, Ex.P.7 came into existence only in the year 2003. Therefore, there is no question of creating of execution of such document in the year 2001. Ex.P.1 and Ex.P.7 are admitted by the accused. Legal notice endorsement clearly shows that, it is refused. Said documents are not prior to purchase but they are subsequent to purchase. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Instrument Act 1881 02. Whether the Judgment passed by the trial court in C.C. No.471/2005 dated: 17-09-2013 is illegal, perverse and needs interference by this court? 15. My answer to the above points is as under for the reasons given below. 16. The main contentions in this case are that, the accused has admitted the issuance of cheque. It is also undisputed that the accused has purchased a tractor from M/s Rajashree Agro Services Ltd. Bijapur and the complainant was the proprietor of the said agency. It is also not disputed that, in the month of January 2001 accused approached the complainant for purchase of Mahindra Tractor and accused states that for that purpose he handed over a blank bond paper and a cheque on the condition that after receipt of the said tractor price the same shall be returned to him. According to the defense of the respondent/accused he has repaid the amount but the cheque is not returned and it is misused by the complainant. 17. In view of these contention let me consider the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estions were made to complainant-PW.1 but all are denied. PW.1 also admitted that, for recovery of the bond amount he has filed a suit in O.S. No.160/2006 before the I Addl. Civil Judge (Sr.Dn.) Court Bijapur in respect of said cheque amount. So there is nothing in his cross- examination so as to disbelieve his evidence. 21. To corroborate his evidence the complainant got examined one Siddagondappa as PW.2 who was the bond writer of that Hand loan Bond Ex.P.7. PW.2 has stated that, on 11-06-2003 as stated by accused he has written a bond paper as per Ex.P.7(kaigada patra). PW.2 has identified his signature and also signature of accused as per Ex.P.7(c) (d). PW.2 has also stated that other two witnesses have signed and one of the witness has put his thumb impression. He has also stated that, after writing Ex.P.7 hand loan deed, he has readover the same to the accused. This witness was cross-examined at length but nothing is elicited in his cross-examination so as to disbelieve his evidence. So his evidence corroborates the evidence of PW.1. Ex.P.7 is certified copy of the bond paper which is issued from the State Bank of Mysore branch Bijapur on 05-06- 2003 for ₹ 100/-. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour 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 `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39 of the NI Act..... xxx xxx xxx 22. The result of discussion in the foregoing paragraphs is that the major considerations on which the Trial Court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt. Such being the fundamental flaw on the part of the Trial Court, the High Court cannot be said to have acted illegally or having exceeded its jurisdiction in reversing the judgment of acquittal. As noticed hereinabove, in the present matter, the High Court has conscientiously and carefully taken into consideration the views of the Trial Court and after examining the evidence on record as a whole, found that the findings of the Trial Court are vitiated by perversity. Hence, interference by the High Court was inevitable; rather had to be made for just and proper decision of the matter. So in view of the principles stated in the above decision the burden shifts on the accused to rebut the presumption available under section 139 of the Negotiable Instrument Act. 24. The accused can rebut the presumption by two ways one by cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i branch both signed by him. But the present bond paper before the court is forged bond paper. Again accused deposed that, on 24- 05-2001 after sanction of the loan he paid the entire amount of the tractor to the complainant. Thereafter accused asked complainant to return the cheque the complainant informed him that it was misplaced. The complainant did not return the cheque so he kept quite. This type of evidence cannot be believed. It is not that the accused is not knowing the Bank transaction. He frequently met the complainant. He borrowed loan from Bank. That itself shows he is in acquaintance with bank transaction, cheque transaction and accused knew very well the complainant. 30. Accused/DW.1 further admits that, on 13-12-2003 a postman brought the postal cover to his house and enquired his wife, but his wife refused to receive the same as her husband is not in the house, the post man has taken it back. On enquiry with the complainant, accused came to know that it was a demand notice alleging that he has taken hand loan of ₹ 52,000/- 31. It is very pertinent to note that, the postal cover with the demand notice was sent to the address of accused. It was refused ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s admitted in the cross- examination that earlier he has stated the Cheque Book Ex.D.4/counter foil was lost. The Ex.D.4(a) the counter foil in respect of the said cheque there is no mention that it was a blank cheque. Even the writing of first foil and some other of Ex.D.4 are with the some amount. The next counter foil dates appears to have been over - written and they all appears to be written on the same day. The counter foil book was with the accused only. He can write what-ever he likes. If at all he has issued cheque with the amount mentioned in them to the persons shown in those counter foils he should have produced the Bank statement to show that, actually those cheques were issued in favour of the persons whose names mentioned in counter foil with the amount mentioned in it. But no such bank statement showing encashment of any such cheques with the amount mentioned in them is forthcoming. It appears that the trial court has also mislead by this document and wrongly considered its evidentiary value. 34. DW.2 is one Hemaraddi. He states in his evidence that, he has also purchased the tractor from complainant agency. He has asked the tractor seller to return the cheque an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the accused is not forthcoming. It is in no way connected with the accused. 37. Therefore on reading of the entire evidence of complainant and accused it is evident that, the accused has miserably failed to rebut statutory presumption. 38. It is crystal clear that, the accused has issued Ex.P.1 cheque signed by him and failed to prove that it was issued in the year 2001. Ex.P.7 Hand Loan Bond paper came into existence on 05-06-2003. The legal notice sent by complainant to the accused by RPAD which is at Ex.P.5 though admitted by the accused that it came to his address and his house but it was refused. Even after coming to know abound demand notice sent by complainant no reply was given by the accused. The scribe of hand loan deed Ex.P.7 is examined. In the cross-examination of PW.2 nothing is elicited to disbelieve his evidence. If at all there was any forgery of signature of accused on Ex.P.7 as contended by the accused he should have sent the said document for handwriting expert opinion. When a person takes defense of fraud and forgery the burden is on him to prove the same. But the accused has not proved his contention regarding fraud or forgery. The evidence of accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gotiable Instrument Act. The accused has failed to rebut the said evidence and statutory presumption arising in favour of complainant by any legally admissible evidence. 41. I have perused the Judgment of the trial court. In fact the trial court has not raised the proper points for consideration which arise while deciding the criminal case under section 138 of the Negotiable Instrument Act, 1881. Though the learned Magistrate stated that Ex.P.1 cheque is not disputed by accused, but the trial court has wrongly observed at para No.13 of the Judgment that the complainant has not produced any document in respect of earlier transaction with the accused. Why the complainant should produce the documents in respect of any other transaction when he has not admitted that, he has got any other such documents or transaction with accused. Nothing worth elicited in the cross-examination of this PW.1. Without properly discussing the evidence placed by the complainant and without appreciating it on the sound principles regarding appreciation of evidence in Negotiable Instrument Act cases and not considering the statutory presumption arising in favour of the complainant the trial court has wron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced in this case. The production of original in a suit between accused and complainant in O.S. No.160/2006 is not disputed. In fact the said suit is now decreed after full fledged trial before the civil court which further strengthens the presumption in favour of the complainant. Mis-interpreting the evidence of PW.2, without properly reading the evidence, ignoring the presumption arising under section 139 of Negotiable Instrument Act and without considering the sound principles regarding appreciation of evidence in a cheque bounce case the trial court has wrongly come to the conclusion based on Ex.D.4 counter foil and vague and general evidence of DW.2. Finding that the defense taken by the accused is probable and conclusion that the complainant has failed to prove the case beyond reasonable doubt is without any reasons. This finding of the trial court is perverse, illegal and not based on sound principles regarding appreciation of evidence in a cheque bounce case. The learned trial court Judge has given gobye to the principles enunciated by this High Court and the Hon'ble Supreme Court regarding appreciation of the evidence in cheque bounce case, raising presumption and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
