TMI Blog2024 (1) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that he had not received the notice. Learned Trial Court had rightly pointed out that the person, who claimed that he had not received a notice as to pay the amount within 15 days from the receipt of the summons of the Court. It was laid down in CC. ALAVI HAJI VERSUS PALAPETTY MUHAMMED [ 2007 (5) TMI 335 - SUPREME COURT ] that the person who claims that he had not received the notice has to pay the amount within 15 days from the date of the receipt of the summons from the Court and in case of failure to do so, he cannot take the advantage of the fact that notice was not received by him. The accused has not paid any money to the complainant, and it was duly proved that the accused had failed to pay the money despite the receipt of the notice - Thus, it was duly proved that the cheque was issued in discharge of the legal liability which was dishonoured due to insufficient funds and the accused failed to make the payment despite the receipt of a valid notice of demand; hence, the complainant had succeeded in proving its case beyond the reasonable doubt. In the present case, the amount awarded by the learned Trial Court as affirmed by the learned Sessions Judge is inadeq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 138 of the NI Act. The accused pleaded not guilty and claimed to be tried. 4. The complainant examined three witnesses to prove his case. Sitanshu Vermani (CW1) proved that the complainant presented a cheque in his bank. Amrander Kumar (CW2) proved that the cheque was dishonoured due to insufficient funds. Babu Ram (CW3) is the complainant. 5. The accused in his statement recorded under Section 313 Cr.P.C. denied the case of the complainant in its entirety. He stated that he had given the cheque to his brother-in-law who had some financial transaction with the complainant. He admitted that the cheque was dishonoured with the endorsement of insufficient funds . He stated that he had not received any legal notice. He had never borrowed any money from the complainant. He examined Ashok Kumar (DW1) in his defence. 6. The Learned Trial Court held that the complainant s version that the accused had issued a cheque to him in the discharge of his legal liability was duly established. The version of the accused that the cheque was given by him to Ashok Kumar who had handed it over to the complainant was not believable. The cheque was dishonoured due to insufficient funds. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irudh Sharma, learned counsel for the petitioner/accused submitted that the learned Courts below erred in convicting and sentencing the accused. The complainant had failed to prove his financial capacity. The statement of Ashok Kumar was satisfactory and the learned Courts below erred in rejecting the same; therefore, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside. 11. Mr. Prajjwal Gupta, learned counsel for the respondent supported the judgments and order passed by learned Courts below and submitted that no interference is required with the same. 12. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 13. The present revision has been filed against the concurrent findings of the fact recorded by the learned Trial Court and the learned Appellate Court. It was laid down by the Hon ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204 : (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not appellate Court and it can only rectify the patent defect, errors of jurisdiction or the law. It was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The position may undoubtedly be different if the inference is one of law from [the] facts admitted and proved or where the finding of fact is materially affected by a violation of any rule of law or procedure. (Vide Sriniwas Ram Kumar v. Mahabir Prasad [Sriniwas Ram Kumar v. Mahabir Prasad, 1951 SCC 136] , SCC p. 139, para 9) *** 11. Thus, it is evident from the above that this Court being the fourth court should not interfere with the exercise of discretion by the courts below as the said courts have exercised their discretion in good faith giving due weight to relevant material and without being swayed by any irrelevant material. Even if two views are possible on the question of fact, we, being the fourth court, should not interfere even though we may exercise discretion differently had the case come before us initially. In view of the above, we are not inclined to interfere with the finding of fact so far as the issue of bigamy is concerned nor the quantum of punishment on this count is required to be interfered with. 14. The present revision has to be decided as per the judgment of the Hon ble Supreme Court. 15. The complainant (CW3) reiterated the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cheque and the security cheque of the accused. However, the complainant did not return the cheques. He stated in his crossexamination that the accused was his brother-in-law. He admitted that the HP Cooperative Bank had filed a complaint against the accused for not returning the loan; however, he could not say that this complaint was filed in the year 2011. He denied that the accused borrowed the money from the complainant to return the money. He did not know that the complainant was a registered contractor with HP PWD and I PH. He admitted that the complainant had ancestral property and other property in Rajgarh. He denied that he had any transaction with the complainant. He could not produce any document regarding the transaction between him and the complainant. He did not remember the cheque number which was handed over by him to the complainant or the account on which the cheque was drawn. 18. The statement of this witness shows that he had written the cheque number and the name of the bank on his hand which clearly shows that these were suggested to him by some person. Significantly, he was unable to mention his cheque number or his account number, which shows that he can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted...... 9. S.139 of the Act provides that it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque of nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. 20. Similar is the judgment in Basalingappa vs. Mudibasappa 2019 (5) SCC 418 wherein it was held: 24. Applying the proposition of law as noted above, in the facts of the present case, it is clear that the signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability. 21. This position was reiterated in M/S KalamaniTex and another Versus P. Balasubramanian 2021 (5) SCC 283 wherein it was held: 14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denial of passing of consideration would not aid the case of the accused. 22. Similar is the judgment in APS Forex Services (P) Ltd. v. Shakti International Fashion Linkers, (2020) 12 SCC 724 : (2020) 4 SCC (Cri) 505: 2020 SCC OnLine SC 193, wherein it was observed: 7.2. What is emerging from the material on record is that the issuance of a cheque by the accused and the signature of the accused on the said cheque are not disputed by the accused. The accused has also not disputed that there were transactions between the parties. Even as per the statement of the accused, which was recorded at the time of the framing of the charge, he has admitted that some amount was due and payable. However, it was the case on behalf of the accused that the cheque was given by way of security and the same has been misused by the complainant. However, nothing is on record that in the reply to the statutory notice it was the case on behalf of the accused that the cheque was given by way of security. Be that as it may, however, it is required to be noted that earlier the accused issued cheques which came to be dishonoured on the ground of insufficient funds and thereafter a fresh consolida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd thereafter, it is for the accused to rebut such presumption by leading evidence. 23. The learned Trial Court had rightly pointed out that there is a presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued in the discharge of the legal liability. This presumption was explained by the Hon ble Supreme Court in Triyambak S. Hegde Versus Sripad 2022 (1) SCC 742 as under: 11. From the facts arising in this case and the nature of the rival contentions, the record would disclose that the signature on the documents at Exhibits P-6 and P-2 is not disputed. Exhibit P-2 is the dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be the position, as noted by the courts below a presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. Section 139 of the N.I. Act reads as hereunder:- 139. Presumption in favour of holder- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probable defence. The standard of proof for rebutting the presumption is that of the 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. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come into the witness box to support his defence. 26. Applying the proposition of law as noted above, in the facts of the present case, it is clear that the signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of PW1, when the specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view the various transactions and extent of the amount involved. However, the legal position relating to presumption arising under Sections 118 and 139 of N.I. Act on a signature being admitted has been reiterated. Hence, whether there is a rebuttal or not would depend on the facts and circumstances of each case. 24. This position was reiterated in Tedhi Singh vs. Narayan Dass Mahant 2022 (6) SCC 735 wherein it was held: 7. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the N.I. Act provides that the Court shall presume 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. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of 'probable defence' has grown. In an earlier judgment, which has also been adverted to in Basalingappa (supra), this Court notes that Section 139 of the N.I. Act is an example of reverse on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich takes the form of a shall presume clause is illustrative of a presumption of law. Because Section 139 requires that the Court shall presume the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase unless the contrary is proved . 35. The Court will necessarily presume that the cheque had been issued towards the discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that the cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35] ] 36. Recently, this Court has gone to the extent of holding that presumption takes effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the documents to show that he had sufficient income with him or that he was a Contractor with IP H and HPPWD as asserted by him. This submission will not help the accused. The accused had taken a defence and examined Ashok Kumar to prove that the complainant was a moneylender; therefore, the financial capacity of the complainant was never disputed by the accused. 29. It was laid down by the Hon ble Supreme Court in Uttam Ram Versus Devinder Singh Hudan and another (2019) 10 SCC 287 that the complainant is not to prove the debt as in a civil court in view of the presumption but only to prove that the cheque was issued by the accused. It was observed: 20. The Trial Court and the High Court proceeded as if, the appellant is to prove a debt before a civil court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. Dishonour of a cheque carries a statutory presumption of consideration. The holder of the cheque in due course is required to prove that the cheque was issued by the accused and that when the same was presented, it was not honoured. Since there is a statutory presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Negotiable Instruments Act even if the cheque is filled by some other person. It was observed: 37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in the discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 39. It is not the case of the respondent accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the details in the cheque were not filled in by the drawer, this would not make any difference to the liability of the drawer. xxxxxx 15. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in the discharge of a liability. The presumption arises under Section 139 35. The accused claimed that it was issued as a security. It was laid down by this Court in Hamid Mohammad Versus Jaimal Dass 2016 (1) HLJ 456, that even if the cheque was issued towards the security, the accused will be liable. It was observed: 9. Submission of learned Advocate appearing on behalf of the revisionist that cheque in question was issued to the complainant as security and on this ground, criminal revision petition be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. As per Section 138 of Negotiable Instruments Act 1881 if any cheque is issued on account of other liability then provisions of Section 138 of Negotiable Instruments Act 1881 would be attracted. The court has perused the original che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dishonour of cheque issued was not by itself at par with a criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour of a cheque issued for discharge of later liability is clearly covered by the statute in question. Admittedly, on the date of the cheque, there was a debt/liability in praesenti in terms of the loan agreement, as against the case of Indus Airways (supra) where the purchase order had been cancelled and a cheque issued towards advance payment for the purchase order was dishonoured. In that case, it was found that the cheque had not been issued for discharge of liability but as an advance for the purchase order which was cancelled. Keeping in mind this fine but the real distinction, the said judgment cannot be applied to a case of the present nature where the cheque was for repayment of loan instalment which had fallen due though such deposit of cheques towards repayment of instalments was also described as security in the loan agreement. In applying the judgment in Indus Airways (supra), one cannot lose sight of the difference between a transaction of the purchase order which is cancelled and that of a loan transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be an understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque, which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an 'on-demand promissory note' and in all circumstances, it would only be civil litigation to recover the amount, which is not the intention of the statute. When a cheque is issued even though as 'security' the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivered in the ordinary course of business. 40. The complainant stated that he had not received the notice. Learned Trial Court had rightly pointed out that the person, who claimed that he had not received a notice as to pay the amount within 15 days from the receipt of the summons of the Court. It was laid down in C.C. Allavi Haji vs. Pala Pelly Mohd. 2007(6) SCC 555 that the person who claims that he had not received the notice has to pay the amount within 15 days from the date of the receipt of the summons from the Court and in case of failure to do so, he cannot take the advantage of the fact that notice was not received by him. It was observed: It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence of one month is not excessive. 45. Learned Trial Court had awarded a compensation of ₹2,35,000/-. The cheque was issued on 20.03.2013 and learned Trial Court passed the order on 10.09.2015 after a lapse of more than two years. It was laid down by the Hon ble Supreme Court in M/S Kalamani Tex and another Versus P. Balasubramanian JT 2021(2) SC 519 that the Courts should uniformly levy a fine up to twice the cheque amount along with simple interest at the rate of 9% per annum. It was observed:- 20. As regards the claim of compensation raised on behalf of the respondent, we are conscious of the settled principles that the object of Chapter XVII of the NIA is not only punitive but also compensatory and restitutive. The provisions of NIA envision a single window for criminal liability for the dishonour of a cheque as well as civil liability for the realisation of the cheque amount. It is also well settled that there needs to be a consistent approach towards awarding compensation and unless there exist special circumstances, the Courts should uniformly levy a fine up to twice the cheque amount along with simple interest at the rate of 9% per annum. [R. Vijian v. Baby, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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