TaxTMI 
TaxTMI 
2023 (2) TMI 822
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....ere was a computer center of the appellant in the name of "Mira System Pvt. Company" and one of the conditions for providing the said accommodation loan was that the appellant would close his computer center by 01.04.2009 along with payment of the said accommodation loan with 24% interest before 28.02.2009. It is further alleged that the appellant issued a cheque of Rs. 8,50,000/- dated 31.10.2009 to opposite party but on presentation it was dishonored. Thereafter necessary legal formalities were initiated by the opposite party, who filed a complaint under Section 138 of Negotiable Instruments Act, before the Learned Metropolitan Magistrate, 12th Court at Calcutta, on 12.12.2009 whereby the Learned Trial Judge was pleased to hold the petitioner guilty and was further pleased to sentence the petitioner to undergo simple imprisonment for six months and directed the petitioner to pay a sum of Rs. 12,50,000/- to the opposite party. Being aggrieved of the impugned order, the petitioner approached the Court of District and Sessions Judge at Calcutta, and filed Criminal Appeal No. 07 of 2017 and the same was adjudicated by the Learned Additional District and Sessions Judge, 1st Fast Tr....
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....and the Learned Sessions Judge was generous enough to set aside the sentence of imprisonment of the petitioner and has only directed to pay the cheque amount along with the compensation. The Cheque amount has been paid but the compensation amount of Rupees 4 Lakhs which is extremely reasonable is still due in respect of the loan given to the petitioner in the year 2009. Heard both sides in full. Perused the materials on record Considered. It is the contention of the Petitioner/Accused that the opposite party could not prove before the court that the petitioner had any liability to discharge. As such the judgments are not in accordance with law and liable to be set aside. Section 138 of Negotiable instruments Act lays down : - "138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the che....
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....in discharge of debt or liability. However, presumption is rebuttable and onus lies on drawer to rebut it by adducing cogent evidence to the contrary. This presumption is not in conflict with human right of presumption of innocence of accused which prosecution is required to dislodge by proving its case against accused beyond reasonable doubt, Bir Singh vs. Mukesh Kumar, (2019) 18 SCC 106. Burden of rebuttal of presumption.- The presumption mandated by Section 139 does indeed include the existence of a legally enforceable debt or liability. Bare denial of the passing of the consideration and existence of debt, is not enough to rebut the presumption. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. Rather, something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a p....
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....unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact as held in Hiten P. Dalal (supra). 24. Presumption of innocence is undoubtedly a human right as contended on behalf of the respondent-accused, relying on the judgments of this Court in Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and Anr (2005) 5 SCC 294 and Rajesh Ranjan Yada @ Pappu Yadav vs. CBI through its Director (2007) 1 SCC 70. However the guilt may be established by recourse to presumptions in law and presumptions in facts, as observed above. 25. In Laxmi Dyechem vs. State of Gujarat & Ors. (2012) 13 SCC 375, this Court reiterated that in view of Section 139, it has to be presumed that a cheque was issued in discharge of a debt or other liability but the presumption could be rebutted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption. This Court held "however, this presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post dated cheque, a party should not be allowed to get away from the penal provision of....
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....n for filing civil cases would expire by the time the criminal case was decided. 29. In R. Vijayan vs. Baby and another (supra) this Court observed that unless there were special circumstances, in all cases of conviction, the Court should uniformly exercise the power to levy fine up to twice the cheque amount and keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss, direct payment of such amount as compensation. This Court rightly observed that uniformity and consistency in deciding similar cases by different courts not only increases the credibility of the cheque as a Negotiable Instrument but also the credibility of the Courts of Justice. 30. The judgment of this Court in Raj Kumar Khurana vs. State of (NCT of Delhi) & Anr. (2009) 6 SCC 72 was rendered in the particular facts of the case where the drawer of the cheque had reported to the police and the bank that two unfilled cheques signed by him had been stolen. 31. The proposition as re-enunciated in John K John vs. Tom Varghese & Anr. (2007) 12 SCC 714 cited on behalf of the respondent-accused that if two views are possible, this Co....
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....s of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 39. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its dra....
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....f an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. xx xx xx 139. Presumption in favour of holder.-It shall be 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. Referring the Sections of the N.I. Act, a three Judges Bench of this Court in "T. Vasanthakumar Vs. Vijaykumari" (2015) 8 SCC 378, has held: "9. Therefore, in the present case since the cheque as well as the signature has been accepted by the accused-respondent, the presumption under Section 139 would operate. Thus the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not, return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted tha....