TaxTMI 
TaxTMI 
2022 (2) TMI 85
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....ault of payment of fine Kuldeep Singh 138 of Negotiable Instruments Act Two (2) years Rs. 10,000/- R.I. for one month The period of detention already undergone by the convict, during trial of this case shall be set off against the substantive sentence. File be consigned to the record room, Gurdaspur, after due indexation." Challenge has also been made to the judgment dated 06.12.2021 vide which the appeal preferred by the petitioner had been dismissed by the Sessions Judge, Gurdaspur and the conviction had been upheld. The brief facts of the prosecution case are that the petitioner had taken a loan from the respondent-HDFC Bank Limited which was to be repaid alongwith the interest as per the terms and conditions of the agreemen....
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....10.08.2016 from the petitioner and, thus, the cheque was issued for the repayment of a legally enforceable debt. It was further observed that the petitioner had not disputed his signatures on the cheque Ex.C2 and under Section 139 of the Act of 1881, there is a presumption in favour of the holder of the cheque and the same was received for the discharge of the whole or in part of any debt or liability unless the contrary had to be proved by the petitioner. The argument to the effect that the present cheque was a security cheque was rejected by relying upon the judgment of the Delhi High Court in case titled as M/s Constellation Enterprises Pvt. Ltd. & Anr. Vs. P.E.C. Limited, reported as 2006(127) DLT 733. It was further observed that the p....
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....The signatures on the said cheque had neither been disputed before the Courts below nor before this Court. Nothing has been shown either to this Court or to the Courts below to show that the amount of loan had been repaid. Legal notice had been duly served and the complaint had been filed within a period of limitation. The argument of learned counsel for the petitioner that the present cheque was a security cheque had been rejected by both the Courts below. The Hon'ble Supreme Court of India in a case titled as "Bir Singh vs. Mukesh Kumar", reported as 2019(4) SCC 197, had held that the Court shall presume the liability of the drawer of the cheques for the amount for which the cheques are drawn. Even in the aforesaid case, the cheque ....
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....on to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact as held in Hiten P. Dalal (supra). xxx xxx xxx 36. 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. 37. A meaningf....
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.... said judgment is reproduced hereinbelow:- "His additional plea is that the cheque which was presented for encashment was actually a security cheque and hence no liability would arise by dishonour of such a cheque. xxx xxx xxx Additional plea of the petitioner that dishonour of a security cheque can not fasten the liability on the drawer under the Negotiable Instruments Act is also not acceptable. There can be no doubt regarding the fact that the security cheque is an integral part of the commercial process entered into between the Petitioner and Respondent/ Complainant. The security cheque is not only a deterrent for the drawer against dishonoring his financial commitment but can also be legally and validly utilized towards the disch....
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....fect that the loan agreement had not been produced on record and the complainant should have filed a civil suit for recovery, also does not deserve any merit. The factum with respect to the loan having been taken is not disputed. The issuance of cheque and the signatures on the same have also not been disputed. It is not the case of the petitioner that the loan had been repaid and even the Statement of Account Ex.C6 shows that an amount of Rs. 16,48,026.44 was due from the petitioner as on 10.08.2016. Further, once the cheque has been produced on record and outstanding amount has also been proved without there being any rebuttal to the same, then, the presumption under Section 139 of the Act of 1881 would operate in favour of the complainan....