TMI Blog2017 (4) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... mutual consent. It stands clear that the accused failed to dislodge the statutory presumption under Section 118(a) of the Act that he had issued the cheque for consideration; further, the presumption under Section 139 of the Act that the cheque was issued towards discharge of legally recoverable debt could not be shaken. Petition dismissed. - CRIMINAL REVISION PETITION NO.536/2014 - - - Dated:- 6-4-2017 - THE HON'BLE MRS.JUSTICE RATHNAKALA FOR THE APPELLANT : SRI VENKATESH R.BHAGAT, ADV. FOR THE RESPONDENT : SMT.R.RADHA, ADV. ORDER This revision petition is filed aggrieved by the judgment of conviction and sentence returned by the trial court thereby sentencing the revision petitioner/accused to undergo simple imprisonment for one year and pay a fine of ₹ 5,000/- with default clause in respect of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity 'the Act') and further, directing him to pay compensation of ₹ 4,00,000/- to the complainant. 2. The appeal preferred against the said judgment was dismissed. 3. As the facts unfurl, the complainant issued a demand notice to the accused alleging th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also was able to dislodge the initial presumption arising under Sections 118 and 139 of the Act. The accused in his reply to the legal notice issued on 23.6.2006 had asserted that, he had issued a cheque for ₹ 50,000/- only and said cheque was tampered by the complainant; he had called upon the complainant to get another cheque from him for getting replacement of the altered cheque. Learned Counsel continues, the courts below failed to consider above aspects of the matter and convicted him solely on the ground that he has taken contradictory stands at different stages; but being an accused, he is entitled to take such stands and is not liable to prove his defence beyond reasonable doubt. Standard of proof to prove defence on the part of accused is on preponderance of probability. In the above circumstance, judgment of Courts below is erroneous and illegal. 6. In reply, Smt. Radha, learned Counsel for respondent/complainant seeks to sustain the judgment of Courts below thus: The petitioner by raising contradictory defence failed to tilt the presumption arising under Sections 118 and 139 of the Act in favour of the complainant. To establish her financial capacity to le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue in question is tampered; (4) Being an accused, he need not establish his case beyond doubt. The statutory presumptions arising under Sections 119 and 139 of the Act since rebuttal, his case should have been believed as reasonably probable. 9. To commence from the premise of admitted facts, the parties were known to each other. If the case of the accused is to be accepted, though the complainant was a married lady, he had intimate relationship with her. On his own showing in the year 2005 itself, cheque bearing his signature was in the possession of the complainant and she had indicated to implicate him in a criminal case by using the said cheque. Even in his reply notice to the demand notice issued by the complainant, he alleged that cheque issued by him for a sum of ₹ 50,000/- is tampered. Despite the same, he did not take any action against the complainant in respect of the said cheque. The complainant had produced the certified copy of the sale deed/Ex.P7 wherein she along with her husband and on behalf of their minor children had sold a immovable property for consideration of ₹ 5,75,000/- vide registered sale deed dated 5.5.2005. The alleged loan transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... together with the amount or the aggregate amount referred to in clause (b), is [twenty] thousand rupees or more. Provided . . . . . . 271D. Penalty for failure to comply with the provisions of Section 269-SS.- (1) If a person takes or accepts any loan or deposit in contravention of the provisions of section 269- SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted. (2) Any penalty impossible under sub-section (1) shall be imposed by the Joint Commissioner. 12. It is clear from the above that the loanee, who receives loan amount by way of cash above ₹ 20,000/- is liable to be penalized. There is no corresponding provision under the N.I. Act, which would vitiate the entire loan transaction for dealing with cash amount above ₹ 20,000/-. The culpability of offence under Section 138 of the Act will not freeze for the reason of violation of Section 269SS of the I.T.Act and nothing prevents the operation of the statutory presumption under Sections 118 and 139 of the Act. The accused in his attempt to dislodge the initial presumption arising out of the evidence of complainant produced the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of presumption under Section 139 of the Act, it merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or liability. The said proposition was overruled by a later judgment in the case of Rangappa -vs- Sri Mohan reported in (2010) 11 SCC 441. It was held that above principle in Krishna Janardhan Bhat (supra) is in conflict with the statutory provisions as well as established line of precedents of the Apex Court. After examining several line of precedents at paras-26 to 28, it was observed thus: 26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a le ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
