TaxTMI 
TaxTMI 
TaxTMI 
2021 (12) TMI 273
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....o simple imprisonment for one year and pay Rs. 50,000/- as compensation to the respondent/complainant (hereinafter, 'complainant/). 2. Precisely, the facts of the case, as emerge from the record, are that the complainant instituted a complaint under S. 138 of the Act, in the competent court of law, alleging therein that he had advanced Rs. 50,000/- to the accused, who, with a view to discharge his liability, issued cheque No. 289383, dated 18.7.2010, amounting to Rs. 50,000/- (Ext. CW-1/A). However, the fact remains that the said cheque on its presentation was dishonoured with the remarks, "exceeds arrangement". Banker of the complainant informed him about dishonouring of the cheque through memo, Ext. CW-3/A. After having received memo from the Bank, complainant served the accused with legal notice, Ext. CW-4/A, calling upon him to make good the payment within the time stipulated in the notice, but when the accused failed to make good the payment within the stipulated time, complainant was compelled to institute complaint under S. 138 of the Act in the competent Court of law. 3. Learned trial Court on the basis of evidence collected on record by respective parties, held accus....
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....one in July, 2010 and another in August, 2010. Cheque Ext. CW-1/A, was issued on 18.7.2010 and he had presented the same for collection in the State Bank of India, Sundernagar, District Mandi, Himachal Pradesh, where he had his account but the cheque could not be encashed due to insufficient funds, regarding which memo of State Bank of India, Sundernagar is (Mark A). This witness further deposed that he served a notice (Mark B) upon the accused at his correct address through registered post and postal receipt thereof is Mark C and undelivered registered letter is Mark D. 11. In his cross-examination, CW-1 admitted that name of his brother is Rajender, however, he feigned ignorance with regard to dealing of the accused, if any, with his brother. This witness denied that he had no dealing with the accused. This witness stated that he does not remember the date when money was given to the accused but volunteered that it was given in June, 2010. He further deposed that accused issued two cheques in July and August, 2010. This witness further deposed that he presented the cheque in the bank in First week of August, 2010. This witness denied the suggestion put to him that the legal noti....
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....ed that the registered letter remained in the post office for six days but no one came to collect it and on seventh day, he made endorsement Ext. CW-5/B of unclaimed and returned it back. He admitted his signatures on the endorsement. In his cross-examination, this witness denied the suggestion put to him that when he had gone to deliver Ext. CW-5/A, there was no family member of accused present. He stated that he had given intimation to the mother of accused. This witness further deposed that after 27.8.2010, he had visited house of accused on 28.8.2010 and 2.9.2010. 17. Father of accused, while appearing as DW-1 deposed that the cheques were given by the brother of the complainant, namely Rajender Kumar and he had asked him to fill the amount and not the name. He deposed that he had given cheque to Rajender. He stated that the payment regarding cheque was made through bank and when he demanded the cheque he was asked to pay 20% interest. This witness deposed that the cheque was not returned by complainant and Rajender issued cheque in the name of his brother. This witness further deposed that Rajender came to his shop with some persons and threw his goods outside and quarreled w....
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....e presumed, unless the contrary is proved, 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. True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant. 23. Once issuance of cheque and signatures thereupon are not denied, presumption starts in favour of holder of cheque and once such presumption starts, onus shifts upon the person issuing the cheque. Reliance in this regard is placed upon judgment rendered by Hon'ble Apex Court in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106, wherein, it has been held as under: "18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Tri....
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....to the accused in my presence. Thereafter, on demanding the money by the complainant, the accused had given seven (7) cheques to the complainant in our presence but such cheques being washed out in rainy water and on informing me by the complainant I had informed to the accused. Thereafter, Rohitbhai had given other seven (7) cheques to the complainant in my presence and the deed was executed on Rs. 100/- stamp paper in there is my signature." 19.3 This witness was cross-examined on various aspects as regards the particulars in the writing on the stamp paper and the date and time of the transactions. In regard to the defence as put in the cross-examination, the witness stated as under: "I have got shop in National Plaza but in rain no water logging has taken place. It is not true that there had been no financial dealings between me and the accused today. It is not true that I had given rupees ten lacs to the accused Rohitbhai on temporary basis. It is not true that for the amount given to the accused, I had taken seven blank duly cheques also blank stamp paper without signature. It is not true that there was quarrel between me and the accused in the matter of payment of interes....
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.... have given seven (7) cheques of Corporation Bank, Alkapuri Branch bearing No. 763346 to 762252 amounting to Rs. 22,50,000/- (Rupees twenty two lacs fifty thousand only) Dates: (1) 01/4/08, (2) 01/05/08 (3) 01/07/08, (4) 01/08/08 (5) 01/10/08 (6) 01/11/08 (7) 01/12/08 the account of which is 40007. Earliest these cheques were given but due to rainy water logging the said cheques having been washed out (7) cheques have again been given which is acceptable to me." 19.6 The fact of the matter remains that the appellant could not deny his signatures on the said writing but attempted to suggest that his signatures were available on the blank stamp paper with Shri Jagdishbhai. This suggestion is too remote and too uncertain to be accepted. No cogent reason is available for the appellant signing a blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of Bank and account number are of the same cheques which form the subject matter of these complaint cases. The said document bears the date 21.03.2007 and the cheques were post-dated, starting from 01.04.2008 and ending at 01.12.2008. There appears absolu....
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....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 all 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 accused can r....
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.... 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." 26. 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 passing impugn....