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TMI Blog2022 (8) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... nly stating therein that the parties are known to each other and out of acquaintance, in order to help the petitioner in his business, Opposite Party No.2 had given Rs.7,20,000/- during the period March, 2007 till July, 2007 through several account payee cheques from time to time as well as cash also and the account payee cheques were encashed by the accused/petitioner and accordingly the petitioner received Rs.7,20,000/-. It has been further stated that the petitioner undertook to repay the said amount within two years from the date of receipt and in lieu thereof had issued post-dated account payee cheque bearing No.891585 dated 27.12.2008 drawn upon Canara bank, Mango Branch, Jamshedpur. As the accused did not pay the said amount within two years, the complainant (Opposite Party No.2) firstly presented the cheque on 27.12.2008 in Bank but the same was dishonoured and later on, on the assurance of the petitioner, he claimed to have re-presented the cheque on 18.05.2009, but the same was dishonoured and a Cheque Return Memo dated 19.05.2009 was issued intimating Opposite Party No.2 regarding the dishonor of the said cheque bearing No. 891585 due to insufficient fund. The complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly from the materials on record but also by the reference to the circumstances upon which he relies. In support of his contention he referred to the judgment passed by the Hon'ble Supreme Court in the case of M.S. Narayana Menon Vs. State of Kerala [(2006) 6 SCC 39]. Similar view has been taken by the Hon'ble Supreme Court in the case of Anss Rajashekhar Vs. Augustus Jeba Ananth [(2020) 15 SCC 348], where the Hon'ble Supreme Court has held as under:- "13. In the present case, it is necessary now to consider whether the presumption under Section 139 stands rebutted by the appellant-accused. The defence of the appellant is that he has not borrowed the amount of Rs 15 lakhs from the complainant as alleged nor had he issued the cheque (Ext. P-1) in discharge of a legally enforceable debt. Specifically, the defence of the accused is that no payment was made by the complainant to him, in discharge of which the cheques have been issued. His defence was that the cheque was issued to the complainant on an assurance of a loan which would be obtained from a financial institution. This, as we have noted, was also the defence in reply to the notice of demand issued by the complainant. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant claims the cheque to have been given as security. This Court in the case of Lalan Prasad Vs. State of Jharkhand & Ors reported in 2004(3) ECC 192 held that admittedly on the date of issuance of the cheque there was no subsisting liability or debt and therefore with respect to a post-dated cheque as collateral security, no case under Section 138 of the Negotiable Instruments Act, 1881 can be said to be made out. Learned counsel contended that in view of the law laid down by the Hon'ble Supreme Court, the petitioner is entitled to be acquitted and the judgment of conviction and sentence passed by the trial Court and the judgment of dismissal of appeal is liable to be set aside. The appellate Court took into consideration that the petitioner never brought on record the cheque issued by Rakesh Kumar Mishra, however, lost sight of the fact that the bank statement was already produced by the petitioner which was marked as Ext.F which showed the dishonor of the said cheque. The complainant despite opportunity and despite knowing Rakesh Kumar Mishra as a sole witness did not produce him before the trial Court which itself raises doubt on his case and in such circumstances, non-p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in the findings of the courts below, hence no interference is required and the instant application deserves to be dismissed. 6. Having heard learned counsel for the parties and after going through the LCR; it appears that C.W.-1 in his evidence in chief has fully supported his contention which he has mentioned in the complaint petition. He has said that he has given a friendly loan of Rs.7,20,000/- to the accused with an assurance that it will be returned by him within two years. Accused also issued a cheque bearing no.891585 of Rs.7,20,000/- in his favour. Twice the cheque was presented in the bank but it was dishonoured. Thereafter, he has sent a legal notice. On behalf of the complainant Ext. 1 has been brought on record which is cheque bearing No.891585 of Rs.7,20,000/- issued in favour of the complainant. Ext.-2 series are the cheque return memo which shows that on presentation of the said cheque in the bank it was dishonored. Thereafter vide Ext.-3 legal notice was sent. The postal receipt and the acknowledgement has been brought on record marked Ext.4 and Ext.5 respectively and the reply of the legal notice has been marked as Ext.6. All these documents brought on record s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been included in furtherance of the legislative 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. 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 now 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 doubt about the existence of a legally enforceable debt or liability, the prosecution fails. In T. Vasanthakumar V. Vijaykumari [(2015) 8 SCC 378] it has been held by the Hon'ble Apex Court that since the cheque as well as the signature has been accepted by the accused-respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the presumption under Section 139 would operate and the wrong number of the cheque in the complaint and/or in the legal notice would not make any difference and has to be taken as typographical error. 13. In view of the aforesaid discussion, no interference is required so far as judgment of conviction is concerned and the same is hereby sustained. However, so far as compensation amount and sentence is concerned, the learned Appellate Court has sustained the compensation amount of Rs.9 lakhs and sentenced the petitioner to undergo S.I. for a period of 1 year. 13. Having regard to the facts of the case and looking to the continuity of litigation, since the case is of the year 2009 and 13 years have elapsed; interest of justice would be sufficed if the sentence part is modified in lieu of compensation itself. Thus, the sentence of one year is hereby modified to the extent that the petitioner shall pay an amount of Rs.1 lakh over and above 9 lakhs compensation and after paying Rs.10 lakhs in total shall be discharged from his liability of bail bond. It is clarified that the petitioner is directed to pay the aforesaid amount within a period of 10 weeks' from today, failing which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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