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TMI Blog2022 (4) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... contending that the accused is his relative and accused was in need of money for his domestic needs. Therefore, accused borrowed a hand loan of Rs. 3,00,000/- from complainant and assured that he will repay the same within 5-6 months. When the complainant requested the accused after five months to return the money as agreed, the accused issued a cheque bearing no.011285 for Rs. 3,00,000/- dated 22.4.2010 drawn on S.S.K.Co-operative Credit Society, Ilkal, in the name of the complainant. Then the complainant presented the cheque with the banker. The same was returned dishonoured with an endorsement 'drawer stopped payment'. Then the complainant issued a statutory legal notice on 19.8.2010, which was served upon the accused on 21.8.2010. He has given a false reply and not repaid the amount. Therefore, the complainant lodged a complaint stating that the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act, 1881. 4. Before the trial Court, the complainant himself got examined as PW.1 and also got examined Manager of the Bank as PW.2. Eight documents were marked as Exs.P.1 to P.8. The accused has not adduced any defence evidence nor an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransaction proved, the learned Sessions Judge has rightly set aside the judgment of conviction and hence argued to dismiss this revision petition. 8. I have perused the revision petition, judgments of both the Courts and records of the case. From the above materials the point that arises for my consideration is as under: "Whether the judgment passed by the learned Sessions Judge in Crl.A.No.47/2014 is legally correct and the appreciation of evidence is based on sound principles regarding appreciation of evidence in the offence under the provisions of Negotiable Instruments Act, 1881, which is popularly called as cheque bounce case?" 9. I have perused the written complaint which is filed by the petitioner and also his examination-in-chief. It is stated in the examination-in-chief affidavit that the accused is his close relative and as he was in need of money, he borrowed hand loan and in discharge of that hand loan, after 5-6 months he has issued this cheque. The complainant has produced the said cheque which is at Ex.P.1 which shows that the cheque was issued in favour of the complainant for Rs. 3,00,000/-. Signature on it is also not disputed by the accused. It is also evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in Rangappa vs. Sri Mohan, reported in (2010) 11 SCC 441 has laid down the principles, which is referred subsequently in number of decisions. The Hon'ble Supreme Court in a decision reported in (2002) 1 SCC 234 in the case of MMTC Limited and another vs. MEDCHL Chemicals and Pharma (P) Ltd. and another, held that once the accused admitted his signature on Ex.P.1, it is for the accused to rebut the presumption available under Section 139 of the Negotiable Instruments Act, 1881. In this regard in the decision in Dhakshayani vs. Malathi Dayan, reported in 2012 (5) Kar.L.J. 165, this Hon'ble Court has stated as under: Questioning an order of conviction and the consequential sentence imposed by the learned Magistrate for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') and having failed in Cri. A. No. 25124 of 2010, on the file of the Sessions Court at Bangalore, accused has filed this criminal revision petition. 2. Sri Hiremathad, learned Advocate appearing for the petitioner contended that the petitioner has been convicted for an offence under Section 138 of the Act, when the ingredients necessarily to be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been issued for a debt or liability. Accused was examined under Section 313 of Cr. P.C. and it is a case of denial. Though the accused deposed later as D.W.1 and marked Exs. D.1 and D.4, the defence being not probable and inconsistent with the stand taken in Ex. P.17, the presumption having not been rebutted, learned Magistrate is justified in recording the finding of guilt of the accused under Section 138 of the Act. 7. There is neither any perversity nor illegality committed by the Courts below in the matter of appreciation of evidence. The ingredients to punish the accused for the offence under Section 138 of the Act has been made out. Hence, the petition is devoid of merit. 13. In the light of these principles if the present case is considered, then it is evident that it is the defence of the accused that he was going along with one Narayansa Raibagi to some village in the year 2006 and he kept signed cheque in his bag. When they were taking tea in a hotel, there was theft of his bag. According to accused, the said Narayansa has filed a civil suit against him and he has given one of the cheque to this complainant and got filed the case. 14. This defence of accused rests wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favor, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant-accused." 17. Further the Hon'ble Supreme court in case of APS FOREX SERVICES PRIVATE LIMITED Vs. SHAKTI INTERNATIONAL FASHION LINKERS AND OTHERS - (2020) 12 SCC 724 considered in detail the presumption under N.I Act and held that when the financial capacity of the complainant is not questioned, then there is no necessity for the complainant to adduce evidence in proof of his financial capacity. It is held at paragraph Nos.8, 8.1, 8.2 and 8.3 as under: 8. On the presumption under Section 139 of the N.I. Act, few decisions of this Court are required to be referred to and considered. 8.1 In K.N. Beena V. Muniyappan, (2001) 8 SCC 458, it is observed and held by this Court that under Section 118 of the N.I. Act, unless the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Exports V. Sharma Carpets, (2009) 2 SCC 513, it is observed and held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. This Court in para 19 of that judgment considered paras 14, 15, 18 & 19 of the decision in Kumar Exports (2009) 2 SCC 513 as under: (Kishan Rao V. Shankargouda, (2018) 8 SCC 165, SCC PP.171-72) 19. This Court in Kumar Exports v. Sharma Carpets (2009) 2 SCC 513, had considered the provisions of the Negotiable Instruments Act as well the Evidence Act. Referring to Section 139, this Court laid down the following in paras 14, 15, 18 and 19 : (SCC pp.519-20) "14. Section 139 of the Act provides that it shall be presumed, unless the contrary isproved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. 15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act, all presumptions must come under one or the other class of the three clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque, as stated in his explanation in the statement recorded under section 313 of Cr.P.C., he could have lodged the complaint with the police. One carbon copy of the letter stated to be addressed to the SSK bank dated 5.6.2006 is produced along with written statement. But no evidence is adduced calling upon any officials of the bank to prove his contention and to show that he has intimated the bank about theft of cheques. To whom he was giving signed blank cheques at Bhagyanagar, why they asked him blank cheques, what happened to his other cheques, mentioned in reply? No explanation is forthcoming. No bank statement is produced to show that he had any move in his bank on the date he lost the cheque, no persons were examined to prove it. If at all he has lost the cheque in the year 2006 itself, then how one cheque came in possession of this said Narayansa is also not forthcoming; why he has misused only one cheque if there are six cheques is also not forthcoming. Why this Narayansa waited for four years to institute a case through this complainant is also not forthcoming. Therefore, simply taking such defence without any basis, without producing any iota of evidence and giving su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the leaned Sessions Judge is without there being any evidence. The learned Sessions Judge has not properly appreciated the examination-in-chief and cross- examination evidence. He has ignored settled principles regarding appreciation of evidence in cheque bounce case and imagined on his own certain things which are not based on any material. The financial capacity of the complainant was never in question. Admittedly the occupation of both the complainant and accused is shown as business. In the complaint he has stated that complainant has kept the amount which he received from the business in his house, so question of producing bank statement does not arise. 22. On the other hand, the learned Sessions Judge failed to note that the defence taken by the accused itself is improbable one. If at all somebody stolen the cheque and misused it, definitely legal action will be taken against them by the person who has lost the cheque. But the accused has not at all filed any criminal case against the said Narayansa or against this complainant. Accused has not entered the witness box and substantiated his defence. On the other hand, both oral and documentary evidence placed by the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for payment. The Hon'ble Supreme Court held that offence under section 138 of the N.I.Act would be made out and at paragraph no.25 it is held as under: 25. In the instant case, the cheque issued by the respondent has been stopped for payment on his instructions and the cheque was returned to the appellant unpaid. In view of our discussion in the foregoing paragraphs and on the consideration of the facts and circumstances of the case and the law on the subject, we hold that the respondent shall be deemed to have committed an offence. When the matter was taken up for further hearing on 17.11.2003, learned counsel for the respondent submitted that this Court may consider the case of the respondent and the reason for his inability to pay the amount and may consider imposing lesser sentence by taking a lenient view. We are unable to countenance the said submission for the various reasons stated supra. We have no doubt that the respondent has committed an offence punishable under the provisions of Section 138 of the Act and is liable to be punished. The transaction in question took place between the parties in the year 1993, therefore, Section 138, as it stood at the relevant tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Further, as observed by this Court in Kaushalya Devi Massand V. Roopishore Khore, (2011) 4 SCC 593, the gravity of complaint under N.I Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences. In that view , in our opinion, 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 event the respondent-accused not taking the benefit of the same to pay the fine but committing default instead, he would invite the penalty of imprisonment. Hence, appropriate modification is made to the sentence in the manner as indicated hereinbelow: 22. For all the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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