2024 (9) TMI 104

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....anch on 23.3.1994. On 25.3.1994 the cheque was returned by the Bank on the ground that funds were insufficient in the account. Thereafter the petitioner send a notice to the respondent no.1 on 06.4.1994 asking for payment of the amount of cheque. On 9.4.1994 respondent no.1 sent a reply to the notice stating therein that she has not purchased any Oil from the petitioner and her signed cheques were misused by her employee Raju Manvani, to whom the respondent no.1 had handed-over signed cheques for the use of the firm. 3. The petitioner examined himself during trial as PW-1 and deposed about what the petitioner had stated in the complaint petition and proved the bounced cheque, which was marked as Exhibit-1. Exhibit-2 was the return of cheque by the bank for insufficient fund. Exhibit-3 was notice dated 06.4.1994 and Exhibit-6 was the reply of respondent no.1 dated 9.4.1994. The petitioner further examined Raju Manvani as witness no.2, who specifically asserted that he had not issued the dishonoured cheque to the petitioner nor he had misused the cheque in collusion with the petitioner. The respondent no.1 did not appear in the witness-box, however, in her statement under Secti....

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....r to show bill whereunder sale of Oil was claimed and in absence of bill the petitioner-complainant failed to prove that the cheque was issued against any outstanding dues. The lower appellate court further disbelieved case of the complainant on the ground that the complainant stated that Sushila was doing business in her own residential premises, which was contradicted by the fact that home address of Sushila was mentioned at some distant place whereas business place was at a different place in the same town of Jodhpur. 8. The question arise herein is :- (1) Whether the appellate court has acted with material irregularity and illegality in assuming burden of proof of outstanding due on the complainant in the facts and circumstances of this case ? and (2) Whether the appellate court failed to consider in the Criminal Revision filed by the petitioner that the sentence awarded is illegal inasmuch as it is not consistent with the requirement of minimum punishment under Section 138 of the Negotiable Instruments Act ? 9. Learned counsel for the petitioner has relied on the judgment of Hon'ble Supreme Court in Rajesh Jain Vs. Ajay Singh, reported in AIR 2023 SC 5018 in support of h....

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....ature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. " 11. Learned counsel for the respondent no.1 contends that this Criminal Revision against the common order dated 27.2.2022 passed in Criminal Appeal No.73/1999 and Criminal Revision No.24/1999 is not maintainable; rather separate petition should have been filed by the petitioner. He next contends that the finding of the learned lower appellate court is based on the material available on the record and hence in exercise of revisional jurisdiction this Court should not lightly interfere with that. 12. In Para-26 of Rajesh Jain's case (supra) the Hon'ble Supreme Court referred earlier judgment and the requirements to prove offence under Section 138 of the Negotiable Instruments Act as follows :- "26. In Gimpex Private Limited vs. Manoj Goel, this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure: (1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account; (i) The cheque being dra....

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....n-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability. Burden of Proof and Presumptions: Conceptual Underpinnings" 13. Evidently the petitioner by his oral evidence asserted that the cheque was issued for discharge of liability to pay the dues of purchased oil. The cheque was presented to the bank and was returned back due to insufficiency of funds on 25.3.1994 vide Exhibit-2. The petitioner send a notice of dishonour of cheque requesting for payment of cheque amount on 06.4.1999. the respondent no.1 failed to make payment of the cheque amount within 15 days, as such, the basic ingredients of Section 138 of the Negotiable Instruments Act are proved by the petitioner. Now, after introduction of a presumptive device under Section 139 of the Negotiable Instruments Act, 1881 as referred above, the onus reverses on the accused to prove non-existence of the fact that the cheque was issued for discharge of a debt/ liability. The respondent-accused admitted her signature on the cheque but did not appear in the witness-box to discharge the reverse burden. Her husband DW-1 claims to have been looking after the business of Sushila & Co....

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.... clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35] 37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar11]. Therefore, mere admission of the drawer's signature, without admitting the execution of (2019) 4 SCC 197 the entire contents in the cheque, is now sufficient to trigger the presumption. 38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further." 16. Evidently the judgment of appellate court in Criminal Appeal....