TaxTMI 
TaxTMI 
2022 (3) TMI 1442
X X X X Extracts X X X X
X X X X Extracts X X X X
....onths and to pay compensation of Rs. 4.00 Lakh to the respondent-complainant (hereinafter, 'complainant'). 2. Precisely, the facts of the case, as emerge from the record, are that the complainant alleged before learned trial Court that he is a fruit commission agent, having good relations with the accused. It is further alleged that on the request of accused, complainant lent Rs. 2.70 Lakh in the last week of October, 2014 but the accused failed to return the same till December, 2014 and on repeated requests of the complainant, accused issued two cheques amounting to Rs. 1,60,000/- on 23.4.2015 and another cheque for Rs. 1,10,000/- on 3.6.2015, both drawn at UCO Bank, Rohru, District Shimla. However, the fact remains that both the aforesaid cheques, on presentation, were dishonoured on account of insufficient funds in the account of the accused. Though the complainant served the accused with legal notice Ext. CW-1/H calling upon him to make good the payment within stipulated time, but the accused failed to make the payment as such, complainant was compelled to institute proceedings under S. 138 of the Act against the accused in the competent Court of law. 3. Learned trial Cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....een disputed by the accused, rather, the simpliciter defence taken by the accused is that the cheques were issued as security and the same have been misused by the complainant. Besides above, accused in his statement recorded under S. 313 CrPC claimed that he is not liable to make any payment, as he has already made the payment of entire amount to the complainant, meaning thereby that the accused owned some money to the complainant. Accused also set up a defence that the cheques were given as security but those were not returned by the complainant, after having received full payment. 10. Needless to say, Ss. 118 and 139 of the Act, raise presumption in favour of holder of cheque that the cheque in question was issued for discharge of a lawful liability. No doubt, presumption under S. 139 is rebuttable and such presumption can be rebutted either by leading some positive evidence in this regard or by referring to the evidence led on record by the complainant. 11. Though, in the case at hand, accused claimed that he had issued cheques as security but he has not been able to probabilise the aforesaid defence, because, it is not understood that in case he had made payment of entir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat Shri Jagdishbhai had signed on the stamp paper in question and not the complainant. 19.1 We have examined the statement of Shri Jagdishbhai as also the said writing on stamp papers and are unable to find any substance in the suggestions made on behalf of the accused-appellant. 19.2 The said witness Shri Jagdishbhai, while pointing out his acquaintance and friendship with the appellant as also with the respondent, asserted in his examination-in-chief, inter alia, as under: "Accused when he comes to our shop where the complainant in the matter Shashimohan also be present that in both the complainant and accused being our friends, were made acquaintance with each other. The accused had necessity of money in his business, in my presence, had demanded Rs.22,50,000/- (Rupees twenty two lacs fifty thousandly) on temporary basis. And thereafter, the complainant from his family members by taking in piecemeal had given 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 complaina....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aint of Shashimohan Goyanka is giving false statement." 19.4 The statement of Shri Jagdishbhai does not make out any case in favour of the accused-appellant. It is difficult to say that by merely putting the suggestion about the alleged dealing to Shri Jagdishbhai, the accused- appellant has been able to discharge his burden of bringing on record such material which could tilt the preponderance of probabilities in his favour. 19.5 The acknowledgement on the stamp paper as executed by the appellant on 21.03.2007 had been marked with different exhibit numbers in these 7 cases. In Complaint Case No. 46499 of 2008, the same is marked as Ex. 54 and reads as under : "Today the executor I Rohit Patel Ranchhodray Masala is a partner. Due to the financial difficulties having been arised, I have taken Rs.22,500,000/- (Rupees twenty two thousand fifty thousand only- sic) from my group which are to be paid to Shashimohan Goyanka. With reference to that today I 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) 01/05/0....
X X X X Extracts X X X X
X X X X Extracts X X X X
....used-appellant. 13. The Hon'ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically held that 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. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:- "23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective 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 presu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....duced 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 this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy." 14. In the case at hand, complainant Ashok Kumar tendered his evidence by way affidavit, Exhibit CW-1/A and stated that the accused was in need of money, as such, requested him to lend Rs. 2,70,000/- and same was given by the complainant to the accused. He further deposed that the accused failed to repay the amount and issued aforesaid two cheque in March, 2015. However, both the cheques were dishonoured on account of insufficient funds in the account of the accused. Crossexamination conducted upon this witness, nowhere suggests that the accused was able to extract anything contrary to what this witness stated in his examination-in-chief. True it is that in cross-examination complainant has stated that he gave some money in cash and some through ba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e "State 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 reappreciate 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." 18. Since after having carefully examined the evidence in the present case, this Court is una....