TMI Blog2021 (9) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... ld depend on the facts and circumstances of each case. As is evident from the records the notice issued by the appellant intimating the dishonorment of the cheque and demanding payment, though received by the respondent has not been replied. In such situation, the first opportunity available to put forth such contention if true was not availed. Even in the proceedings before the learned JMFC, the respondent has not put forth such explanation in the statement recorded under Section 313 of CrPC nor has the respondent chosen to examine himself or any witness in this regard. The said contention had not been raised even in the appeal filed before the learned Sessions Judge. The case put forth by the respondent does not satisfy the requirement of rebuttal even if tested on the touchstone of preponderance of probability. Therefore, in the present facts it cannot be held that the presumption which had arisen in favour of the appellant had been successfully rebutted by the respondent herein. The High Court therefore was not justified in its conclusion. In the facts and circumstances of the instant case, if an enhanced fine is imposed it would meet the ends of justice. Only in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant demanded the return of ₹ 3,50,000/( Rupees three lakhs fifty thousand only) which he had paid as the advance amount. The respondent instead of paying the entire amount, issued a cheque dated 17.05.1998 for the sum of ₹ 1,50,000/( Rupees one lakh fifty thousand only) being part of the amount. The appellant presented the cheque for realisation on 20.05.1998 when it came to be dishonoured with the endorsement insufficient funds . 3. The appellant therefore got issued a notice informing the respondent about the cheque being dishonoured and also demanding payment of the cheque amount. The respondent, though received the notice, failed to respond to the same. In that view, the appellant filed a complaint under Section 200 of the Criminal Procedure Code (for short CrPC ) on 14.07.1998 in the Court of the Judicial Magistrate, First Class (for short JMFC ) at Sirsi which was registered as Criminal Case No.790/2000. Through the said complaint the appellant sought prosecution of the respondent under Section 138 of the Negotiable Instruments Act, 1881 (for short N.I. Act ). The learned JMFC after providing opportunity to both the parties convicted the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat light, the price was finalised at ₹ 4,00,000/( Rupees four lakhs only) and on executing an agreement dated 06.06.1996 (Exhibit P6), the advance amount of ₹ 3,50,000/( Rupees three lakhs fifty thousand only) was paid. The balance amount of ₹ 50,000/( Rupees fifty thousand only) was to be paid at the time of registration and the transaction was to be completed within six months. It is alleged that the respondent kept on postponing the registration on one pretext or the other. Therefore, on an enquiry the appellant learnt that the property was in fact in the name of the father of the respondent and the respondent was not the absolute owner. Since the respondent was not authorised to sell, the appellant proceeded to cancel the agreement and demanded to pay back the advance amount. In that view, the cheque dated 17.05.1998 (Exhibit P2) was drawn by the respondent for the sum of ₹ 1,50,000/( Rupees one lakh fifty thousand only) which was towards part of the advance amount paid by him. The cheque on being presented was however dishonoured. The memo issued by the bank was marked as Exhibit P3. The notice issued by the appellant and the postal receipt was marked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in which the High Court has adverted to the said document is beyond the scope of the requirement in a proceeding under Section 138 of the N.I. Act. In that circumstance, it is contended that the learned Single Judge has proceeded at a tangent and has set aside the concurrent judgments of the courts below, though limited scope was available in a Revision Petition. 10. Mr. G.V. Chandrasekar, the learned counsel for the respondent submitted that the trial court and the lower appellate court has not examined the case in its correct perspective. Instead, merely because the signature on the cheque was admitted the courts jumped to the conclusion by raising a presumption, though there was no evidence on record to show that the appellant possessed the funds and the same had been actually paid by him to the respondent to constitute legally recoverable debt. It is contended that the High Court was justified in examining and concluding with regard to the circumstance under which the cheque had been signed and, in that light, had set aside the conviction. The order therefore does not call for interference is his contention. 11. From the facts arising in this case and the nature of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontend differently on that aspect. 14. The learned counsel for the respondent has however referred to the decision of this Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 wherein it is held as hereunder: 25. We having noticed the ratio laid down by this Court in the above cases on Sections 118 (a) and 139, we now summarise the principles enumerated by this Court in following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the presumption. 16. On the position of law, the provisions referred to in Section 118 and 139 of N.I. Act as also the enunciation of law as made by this Court needs no reiteration as there is no ambiguity whatsoever. In, Basalingappa vs. Mudibasappa (supra) relied on by the learned counsel for the respondent, though on facts the ultimate conclusion therein was against raising presumption, the facts and circumstances are entirely different as the transaction between the parties as claimed in the said case is peculiar to the facts of that case where the consideration claimed to have been paid did not find favour with the Court keeping in view the various transactions and extent of amount involved. However, the legal position relating to presumption arising under Section 118 and 139 of N.I. Act on signature being admitted has been reiterated. Hence, whether there is rebuttal or not would depend on the facts and circumstances of each case. 17. In the instant facts, as noted, the case put forth was that there was a transaction between the parties where the respondent had agreed to sell the house towards which an advance amount of ₹ 3,50,000/( Rupees three lakhs fifty thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the respondent would not be of assistance in the present facts. Firstly, in the said decision this Court has expressed the limited power available to the High Court in Revision Petition. Even otherwise, we have disapproved the manner in which the learned Single Judge has proceeded to examine the matter on contentions which were not raised as a foundation before the Trial Court. In the instant case, the said agreement (Exhibit P6) had been relied upon only to the limited extent to indicate that there was a transaction between the parties due to which the amount to be repaid had been advanced. To that extent the document had been proved in evidence and such evidence had not been discredited in the cross-examination. 19. Further, though the respondent had put forth the contention that a relative of the appellant was the junior of his advocate and he has used his dominant position to secure the signature on the cheque, there is absolutely no explanation whatsoever to indicate the reason for which such necessity arose for him to secure the signatures of the respondent, if there was no transaction whatsoever between the parties. That apart, the said story even to be examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in. The High Court therefore was not justified in its conclusion. 21. Having arrived at the above conclusion, it would be natural to restore the judgment of the Learned JMFC. Though in that regard, we confirm the order of conviction, we have given our thoughtful consideration relating to the appropriate sentence that is required to be imposed at this stage, inasmuch as; whether it is necessary to imprison the respondent at this point in time or limit the sentence to imposition of fine. As noted, the transaction in question is not an out and out commercial transaction. The very case of the appellant before the Trial Court was that the respondent was in financial distress and it is in such event, he had offered to sell his house for which the advance payment was made by the appellant. The subject cheque has been issued towards repayment of a portion of the advance amount since the sale transaction could not be taken forward. In that background, what cannot also be lost sight of is that more than two and half decades have passed from the date on which the transaction had taken place. During this period there would be a lot of social and economic change in the status of the parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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