TaxTMI 
TaxTMI 
2026 (6) TMI 1468
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....Negotiable Instruments Act (in short the "Act"), convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs. 5,50,000/- to the respondent-complainant (in short the "complainant"). 2. Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties are that complainant instituted a complaint under Section 138 of the Act before the learned Chief Judicial Magistrate, Bilaspur, District Bilaspur, H.P., alleging therein that in the year 2016, accused approached the complainant-bank for grant of term loan of Rs. 16,70,000/- for the purchase of new Ashoka Leyland 1616 Truck. Complainant-bank acceded to afore request of the accused and advanced a term loan of Rs. 16,70,000/- on 04.03.2016. As per agreed terms, loan amount was to be repaid in 72 equal monthly installments along with contractual interest at the rate of 12.75% per annum with monthly rests and in case of default, additional penal interest at the rate of 2% to be charged subject to change as per RBI guidelines issued from time to time. The accused defaulted in repaying the loan and his account....
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....judgment of conviction and order of sentence recorded by the learned trial Court came to be upheld, this Court is not persuaded to agree with Mr. Nishant Khidtta, Legal Aid Counsel for the accused, that learned Courts below have failed to appreciate the evidence in its right perspective, rather this Court finds that both the Courts below have dealt with each and every aspect of the matter meticulously and there is no scope left for this Court to interfere. 7. In the case at hand, complainant, with a view to prove its case, examined Smt. Sweta Devi as CW-1, who by way of tendering affidavit Ext. CW-1/A, reiterated the facts as averred in the complaint. She categorically stated that in the year 2016, accused approached the complainant-bank for grant of term loan of Rs. 16,70,000/- for the purchase of new Ashoka Leyland 1616 Truck. Complainant-bank acceded to afore request of the accused and advanced a term loan of Rs. 16,70,000/- on 04.03.2016. She stated that the accused executed all necessary documents in favour of the complainant-bank on 04.03.2016, thereby acknowledging and undertaking his liability towards the complainant-bank. She stated that the accused defaulted in repayin....
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....thly rests. He stated that the wife of the accused was the guarantor of the aforesaid loan and also placed on record agreement of guarantee Ext. DW-1/C as well as a copy of the registered mortgage deed, Ext. CW-1/D. He stated that loan was granted to the accused for a period of six years, the account statement thereof is Ext.DW1/E, the amount of Rs. 25,000/- was paid by the accused on 14.06.2016 and amount of Rs. 40,000/- was paid on 21.12.2016. He stated that vehicle was seized by the bank after a period of one year and three months and at that time, the accused had not paid two installments. He stated that vehicle was sold by the bank for consideration of Rs. 8,15,000/-, whereas the value of the vehicle was Rs. 19,75,000/- at the time of sanctioning of loan. He further stated that complainant-bank claimed amount of Rs. 15,23,635/- from the accused along with interest before DRT Chandigarh and the case now stands decided by DRT, Chandigarh on 19.12.2019. 10. It also emerges from the pleadings as well as evidence adduced on record by the respective parties that vehicle in question was sold for total consideration of Rs. 8,15,000/- and this afore amount was adjusted towards the l....
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....al 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 rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant. ....
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....the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow. 14. Needless to say, expression "Security cheque" is not a statutorily defined expression in the Negotiable Instruments Act, rather same is to be inferred from the pleadings as well as evidence, if any, led on record with regard to issuance of security cheque. The Negotiable Instruments Act does not per se carve out an exception in respect of a "security cheque" to say that a complaint in respect of such a cheque would not be maintainable as there is a debt existing in respect whereof the cheque in question is issued, same would attract provision of Section 138 of the Act in case of its dishonour. 15. Having scanned pleadings as well as evidence adduced on record by the complainant, this court finds that complainant successfully proved all the ingredients of Section 138 of the Act. Similarly, factum with regard to signatures and issuance of cheque by the accused towards discharge of lawful liability stands duly established on record. 16. Moreover, this Court has a very limited ju....