TMI Blog2022 (4) TMI 1149X X X X Extracts X X X X X X X X Extracts X X X X ..... he absence of jurisdictional error - A perusal of the judgment would show that it has been observed that even if a cheque is a security cheque, the same is an integral part of the commercial process and the same acts as a deterrent for the drawer against dishonouring his financial commitment and can also be used towards discharging the liability of the drawer. It had been further held that to state otherwise, would defeat the whole purpose of a security cheque. There is no illegality or infirmity in the judgments passed by both the Courts below and accordingly, the present Criminal Revision being sans merit is thus, dismissed. - CRR-703-2022 (O&M) - - - Dated:- 19-4-2022 - HON'BLE MR. JUSTICE VIKAS BAHL Mr. Mohit Garg , Advocate for the petitioner ORDER VIKAS BAHL , J. ( ORAL ) Challenge in the present Criminal Revision is to the judgment/order dated 12.03.2018/15.03.2018 vide which the petitioner has been convicted under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as the Act of 1881 ) and has been sentenced for simple imprisonment for a period of one month and has been further directed to pay the compensation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant and even DW1 and DW2 have deposed to the effect that the said alleged poultry farm was being run by the petitioner. It was observed that even from the suggestions and the defence put by the petitioner, it was found that defence initially sought to be taken that petitioner and complainant were strangers, was false and that there was a relationship between the parties. With respect to the financial capacity of the complainant, it was observed that the complainant owned 10.5 acres of land and as stated hereinabove, he had sold his buffalo in March, 2016 for a sum of ₹ 1,00,000/-. In judgment dated 05.04.2022 passed by the Additional Sessions Judge, Hisar, reliance had been placed upon the judgment of the Hon'ble Supreme Court in Rohitbhai Jivanlal Patel Vs. State of Gujarat and another, reported as 2019(18) SCC 106, in which it was held that a presumption is drawn under Sections 118 and 139 of the Act of 1881 in favour of the person to whom the cheque has been given and thus, the Courts are not supposed to approach the case in a manner so as to question the want of evidence on the part of the complainant as regards the source of funds for advancement of loan to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled as Bir Singh vs. Mukesh Kumar , reported as 2019(4) SCC 197, had held that the Court shall presume the liability of the drawer of the cheques for the amount for which the cheques are drawn. The Hon'ble Supreme Court in the said case had also held that the revisional Court should not interfere in the absence of jurisdictional error. The relevant portions of the said judgment are reproduced hereinbelow:- 20. As held by this Court in Southern Sales and Services and Others vs. Sauermilch Design and Handels GMBH, 2008(4)RCR (Civil) 729, it is a well established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is therefore, in the negative. xxx xxx xxx 22. In Hiten P. Dalal vs. Bratindranath Banerjee, this Court held that both Section 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in State of Madras vs. Vaidyanatha Iyer, AIR 1958 Supreme Court 61, this Court held that it was obligato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a debt. Further, as per as per the judgment of co-ordinate Bench of this Court in Shalini Enterprises Vs. India Bulls Financial Service reported as 2013 (2) CCC, 835, the petitioner cannot escape liability on the ground that the cheque in question was a security cheque. The relevant portion of said judgment is reproduced hereinbelow:- His additional plea is that the cheque which was presented for encashment was actually a security cheque and hence no liability would arise by dishonour of such a cheque. xxx xxx xxx Additional plea of the petitioner that dishonour of a security cheque can not fasten the liability on the drawer under the Negotiable Instruments Act is also not acceptable. There can be no doubt regarding the fact that the security cheque is an integral part of the commercial process entered into between the Petitioner and Respondent/ Complainant. The security cheque is not only a deterrent for the drawer against dishonoring his financial commitment but can also be legally and validly utilized towards the discharging of the liability of the Drawer. It cannot by any stretch be argued that a security cheque is not handed over or issued in purs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint was more in know of facts 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 considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not. Xxx xxx 21. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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