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2019 (11) TMI 370
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....t (hereinafter, 'complainant'). 2. Precisely, the facts of the case as emerge from the record are that complainant, instituted a complaint under S.138 of the Act in the court of learned Judicial Magistrate 1st Class, Court No.2, Ghumarwin, District Bilaspur, Himachal Pradesh, alleging therein that one Smt. Brahmi Devi widow of late Rupa Ram, executed an agreement to sell in her favour qua land measuring 1-6 Bigha for a total sale consideration of Rs. 2.00 Lakh and in furtherance of said agreement, complainant paid a sum of Rs. 2.00 Lakh to the above named Brahmi Devi. However later-on it transpired that Brahmi Devi had already sold her entire land to someone else and as such, matter came to be reported to the Police. Smt. Brahmi Devi alongwith accused Pawan Kumar and his real brother Ram Rattan requested the complainant not to report the matter to the Police and accused executed an agreement in favour of the complainant undertaking to pay Rs. 2.00 Lakh to the complainant within a period of one month. However, the fact remains that the accused failed to pay aforesaid amount within the stipulated period in compliance to the affidavit sworn by him. Thereafter, matter came to be rep....
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....corded in the order that in the event of failure on the part of the accused to comply with the order, he shall render himself liable for penal consequences as well as contempt of court proceedings. 8. On 25.2.2019, accused handed over a sum of Rs. 25,000/- in cash to learned counsel for the complainant and prayed for time till 31.3.2019 to deposit the balance amount. Again on 1.4.2019, accused handed over another sum of Rs. 45,000/- in cash to the complainant. This Court by way of indulgence, granted last opportunity till 15.4.2019, to make the balance payment. On 16.4.2019, accused again failed to make payment of balance amount and paid only Rs. 40,000/-, as such, this Court directed the accused to remain present in Court on 7.5.2019. On 7.5.2019, this Court was informed by learned counsel for the accused that the accused could not come present due to death in his family but has sent Rs. 30,000/- to be paid to the complainant. 9. On 9.7.2019, another sum of Rs. 20,000/- was handed over to learned counsel for the complainant by learned counsel for the accused, who stated that remaining amount of Rs. 1,10,000/- shall be deposited by the accused within two months in two inst....
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....00 Lakh allegedly taken by Brahmi Devi towards sale consideration from the complainant. Complainant, while deposing before learned Court below, successfully proved aforesaid documents. She categorically stated that the cheque in question was given by accused to her as he (accused) was guarantor of Smt. Brahmi Devi. She also stated that the accused executed affidavit to this effect. She stated that Smt. Brahmi Devi failed to execute sale deed as per agreement after receipt of Rs. 2.00 Lakh, whereafter, accused alongwith Brahmi Devi and Ram Rattan, executed affidavits undertaking to pay amount in question to the complainant. She further admitted that since the amount was not paid to her in terms of the affidavits executed by accused, Brahmi Devi and Ram Rattan, she was compelled to lodge complaint with the Police. She also stated in her cross-examination that the accused issued cheque in question in her favour but same was dishonoured on its presentation on account of insufficient funds in the account of the accused. 14. CW-2 Rajender Thakur, Assistant Manager, State Cooperative Bank Limited, corroborated the case of the complainant that cheque was presented and dishonoured on ....
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....notice. He did not file any reply to the legal notice, meaning thereby that he accepted his liability but despite that failed to make payment. 19. In the totality of circumstances, this Court finds no reason to differ with the well reasoned judgments passed by both the learned Courts below, especially when there is no positive evidence, if any, available on record suggestive of the fact that accused was able to rebut the presumption under Ss.118A and 139 of the Act available in favour of the complainant being holder of cheque. No doubt, aforesaid presumption available under Ss.118A and 139 of the Act is rebuttable but evidence available on record, clearly reveals that the accused was not able to raise reasonable and probable defence that the cheque in question was not issued by him, rather, he issued the cheque under police pressure. 20. S. 139 of the Act ibid, provides that unless contrary is proved, it shall be presumed that the holder of a cheque received the cheque of the nature referred to in S.138 for the discharge, in whole or in part, of any debt or other liability. In the case at hand, if evidence led on record by complainant is scanned in its entirety, it clearly su....
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....empt to prove that the cheque was given to the complainant under the pressure of the Police. Mere statement of the accused is not sufficient to prove that the cheque in question was issued under the pressure of the Police, rather the accused, with a view to rebut the presumption available in favour of the holder, is/was under obligation to prove by leading positive evidence that the cheque in question was procured by exerting Police pressure. Interestingly, in the case at hand, legal notice issued by complainant was never replied by the accused. 24. Accused, with a view to substantiate his aforesaid plea, stated that the cheque in question was issued by him under pressure exerted by the Police but, interestingly, the accused failed to lead any evidence in this behalf. Since there is no dispute, if any, with regard to issuance of cheque and accused failed to prove that the cheque was not issued in discharge of lawful liability, plea of the complainant that the cheque was issued in discharge of lawful liability, was rightly accepted to be correct by learned Courts below. 25. Hon'ble Apex Court in M/s Laxmi Dyechem vs. State of Gujarat, 2013(1) RCR (Criminal), has categorica....
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....le debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant. 25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of th....
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.... (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 28 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come in the witness box to support his defence. 24. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that 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." 28. Hon'ble Apex Court, in the case before their lordships, while applying principle of law as discussed herein above, observed that when signatures on cheque stand admitted, a presumption shall be raised under S.139 that the cheque was issued in discharge of a debt or liability, but such presumption is rebuttable, if some probable defence is raised by the accused. Since in the case before Hon'ble Apex Court, complainant during his cross-examination, failed to give satisfactory reply qua his financial capacity to pay Rs. 6.00 Lakh, Hon'ble Ap....