TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 983
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.... imprisonment for a period of one year and to pay compensation to the tune of Rs. 10,00,000/- to the complainant. 2. Precisely, the facts of the case as emerge from the record are that the respondent (for short 'complainant') instituted a complaint under Section 138 of the Negotiable Instruments Act (for short 'Act') in the Court of learned Additional Chief Judicial Magistrate, Court No. 1, Rohru, District Shimla, H.P., alleging therein that on 5.6.2013, accused demanded friendly loan of Rs. 6,00,000/- from the complainant. Since complainant had friendly relation with her, he made payment of Rs. 6,00,000/- to the accused in cash on 5.6.2013. With a view to discharge her liability, accused issued cheque No. 588813, dated 22.08.2013(Ex.CW1/B), amounting to Rs. 6,00,000/- in favour of the complainant drawn at State Bank of India of her account No. 32608692802, but fact remains that on presentation aforesaid cheque was dishonoured on account of insufficient funds in the account of the accused, as is evident from memo Ex. CW/D, issued by the bank concerned. After receipt of aforesaid memo, complainant issued legal notice Ex.CW1/E, dated 29.11.2013 through registered A.D....
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....awful liability, issued cheque Ex.CW1/B, amounting to Rs. 6,00,000/-, but same was dishonoured on account of insufficient funds in the bank account of the accused. Interestingly, in the case at hand, there is no denial, if any, on the part of the accused with regard to issuance of cheque, rather she has categorically stated that she had borrowed sum of Rs. 1,00,000/- only and in lieu thereof, had given blank cheque to the complainant, which was subsequently misused by the complainant. 7. Complainant with a view to prove his case examined himself as CW-1 and deposed through his affidavit EX.CW1/A, perusal whereof reveals that he stated/narrated the contents of the complaint verbatim in the affidavit tendered in the evidence. Besides above, this witness also tendered in evidence Cheque Ex.CW1/B, cheque presentation slip Ex.CW1/C, dishonour memo Ex.CW1/D, legal notice Ex.CW1/E, postal receipt Ex.CW1/F and acknowledgment Ex.CW1/G. 8. Accused in her statement recorded under Section 313 Cr.P.C., nowhere denied the factum with regard to issuance of cheque, but claimed that same was issued as a security. Since, there is no dispute with regard to issuance of cheque in question as well as ....
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....d presumption was rebuttable and could be rebutted by the accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability. 32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 1....
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....nation that accused did not return any money. He also denied that cheque was given blank after putting signatures as security. He also denied that despite having received money, he misused the blank cheque to grab the money. This witness specifically denied the suggestion put to him that he filled cheque himself. 11. Accused while deposing as DW-1 stated that she had received Rs. 1,00,000/- 3-4 years earlier and lieu thereof, had given complete payment to the complainant, but she does not remember whether she demanded her cheque from the complainant or not. She also deposed that she was not to give any money to the complainant. In her cross-examination, she denied that during the pendency of case she had given two cheques. She could not recollect that on 5.1.2017 she had given cheque bearing No. 588835 for Rs. 1,00,000/- in the Court. However, during her cross-examination she admitted that she had issued cheque Ex. PX for sum of Rs. 1,00,000/- to the complainant, which bears date 9.1.2017. She also admitted that on 10.3.2017, she issued another cheque Ex.PZ to the complainant and both the cheques issued to the complainant were not honoured. She feigned her ignorance that why she h....
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.... of improving the credibility of negotiable instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof". The Court further observed that it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is al preponderance of probabilities. 24. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The ....
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....ate of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452, wherein it has been held as under:- "In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice." 16. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while p....