Research › Search › Judgment

Andhra High Court · body

2003 DIGILAW 340 (AP)

SUDHIR SABHARAWAL v. ANIL PRABHAKAR NILGIRWAR

2003-03-04

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THESE two revisions arise under similar legal and factual context and are between the same parties. Hence, they are disposed of through a common order. ( 2 ) THE 1st respondent in both these cases viz. , Anil Prabhakar Nilgirwar (hereinafter referred to as the respondent ) had submitted two separate Complaints under section 138 of the Negotiable Instruments act (for short the Act ) before the XI metropolitan Magistrate, Secunderabad. It was alleged that the petitioner herein had taken hand loan of Rs. 1. 50 lakhs each on two occasions and that for repayment of the same, he had issued the cheque bearing No. 270102 dated 29-5-1998 for an amount of Rs. 1. 50 lakhs and another cheque bearing No. 270101 dated 30-5-1998 for similar amount, drawn on Hong Kong and Shanghai Banking Corporation Limited, new Delhi Branch. ( 3 ) THE cheques were presented by the respondent through her banker, for realisation. Both of them were returned on 11-6-1998 with endorsements "payment stopped by drawer". Registered notices were sent to the petitioner as contemplated under Section 138 of the Act. They were returned with endorsements "unclaimed", on 21-7-1998. ( 4 ) THE Complaint as regards cheque bearing No. 270102 dated 29-5-1998 came to be taken up and tried as CC No. 1589/98 and the Complaint as regards cheque bearing no. 270101 dated 30-5-1998, as CC. No. 1592/98. In both the cases, the contentions and evidence were similar. PW. 1 was examined on behalf of the Complainant and necessary documents, such as, the cheques, notices issued, returned postal covers, etc. , were filed and marked. The petitioner examined himself as DW. 1 and had filed certain documents, which are, mostly correspondence with the bank. The Trial court, through separate judgments dated 29- 11-1999, found the petitioner herein guilty of offence under Section 138 of the Act, convicted him and sentenced him to undergo , simple imprisonment for one year and to pay fine of Rs. 5,000/- in each case. The sentence in both the cases was directed to run concurrently. ( 5 ) THE petitioner filed Criminal Appeal Nos. 478 and 479 of 1999 in the Court of the VI Additional Metropolitan Sessions judge, Secunderabad, against the judgments in CC Nos. 1589 and 1592 of 1998 respectively. 5,000/- in each case. The sentence in both the cases was directed to run concurrently. ( 5 ) THE petitioner filed Criminal Appeal Nos. 478 and 479 of 1999 in the Court of the VI Additional Metropolitan Sessions judge, Secunderabad, against the judgments in CC Nos. 1589 and 1592 of 1998 respectively. The lower appellate Court, through separate judgments dated 2-5-2000, upheld the conviction and sentence against the petitioner and dismissed the appeals. Crl. R. C. Nos. 528 and 529 of 2000 are filed against the judgments in Crl. A. Nos. 478 and 479 of 1999 respectively. ( 6 ) SRI A. L. Raju, learned Counsel for the petitioner, submits that the respondent had failed to establish the factum of existence of legally enforceable debt. According to him, the petitioner did not know the respondent. He submits that the petitioner was carrying several cheque books with signed cheques in a pouch and he lost the same. The respondent, who appears to have come into possession some of such lost cheques, had presented the same and filed the Complaints. It is his case that unless the respondent establishes the existence of legally enforceable debt, mere possession of cheques, that too, under suspicious circumstances, cannot give rise to complaints, much less, conviction. ( 7 ) SRI D. Madhava Rao, learned Counsel for the respondent, submits that the cheques were issued by the petitioner only in discharge of the hand loan taken by him. He submits that the respondent had come all the way from Delhi to collect the amounts and the version of the petitioner that the respondent was not acquainted to him is not at all correct. He also submits that the courts below have considered the plea of the petitioner as to the loss of signed blank cheques and have turned down the same as not only improbable, but also unbelievable, having regard to the various circumstances discussed by the Courts below. ( 8 ) THE respondent, in her Complaint alleged that the petitioner had taken hand loan on two occasions from her of Rs. 1. 50 lakhs each. It was her case that for repayment of the same, the two cheques referred to above were issued and on being presented, they were dishonoured. The petitioner did not dispute his signatures on the cheques. 1. 50 lakhs each. It was her case that for repayment of the same, the two cheques referred to above were issued and on being presented, they were dishonoured. The petitioner did not dispute his signatures on the cheques. He pleaded that he has never taken any hand loan nor did he incur any liability towards the respondent. According to him, he kept some cheque books in a pouch in his car and that they were missing. He stated in his evidence that he gave a complaint to the police also and simultaneously instructed the bank authorities to stop payment for the cheques so lost, if any one presents them. Two aspects that arose for consideration before the Courts below as well as this Court are: (1) The existence of legally recoverable debt in favour of the respondent against the petitioner; and (2) The alleged loss of blank cheque books by the petitioner and two such cheques alleged to have been presented by the respondent. ( 9 ) SECTION 139 of the Act throws much light on the 1st aspect. The offence under Section 138 can be said to have been committed if only a cheque issued for repayment of legally enforceable debt is not honoured, when presented. A reading of section 138 of the Act, in isolation, would make one to feel that the complainant has to plead and establish the existence of a legally enforceable debt, as a first step in proving the offence under Section 138 of the Act. However Section 139 requires the court to draw presumption to the effect that the holder of the cheque has received the same for discharge in whole or in part of any debt or the other liability. This presumption, of course, is rebuttable. However, the starting point for the Court on this aspect would be to presume the existence of a debt, once the complainant viz. , the holder of a cheque informs that the cheque received by him/her was dishonoured on being presented. To this extent, the ordinary principle of law that in criminal cases it is for the prosecution/complainant to establish the guilt against the accused beyond any reasonable doubt stands relaxed. The principle underlying under Section 139 of the Act was reaffirmed by the Supreme court in its judgment in Hiten P. Dalai v. Bratindranath Banerjee, 2001 SCC (Crl.) 1960. To this extent, the ordinary principle of law that in criminal cases it is for the prosecution/complainant to establish the guilt against the accused beyond any reasonable doubt stands relaxed. The principle underlying under Section 139 of the Act was reaffirmed by the Supreme court in its judgment in Hiten P. Dalai v. Bratindranath Banerjee, 2001 SCC (Crl.) 1960. The same was followed in B. P. Venkatesulu v. K. P. Mani Nayar, 2001 (1) ALD (Crl.) 544 (Karn. ). ( 10 ) WHEREVER the person accused of offence under Section 138 of the Act intends to plead that there did not exist legally enforceable debt, it is for him to place such material before the Court in the form of oral and documentary evidence as is sufficient and adequate to neutralise the presumption provided for under Section 139 of the Act. In the present case, except deposing that there did not exist any such legally enforceable debt or liability, the petitioner did not come forward with any acceptable and reliable evidence. Therefore, having regard to the presumption provided for under Section 139 of the Act, the law laid down by the Supreme Court in Hiten p. Dalai case (supra), and in the absence of rebuttal by the petitioner, the Courts below were left with no alternative except to continue with the presumption as to the existence of the debt in favour of the respondent. This Court is not persuaded to take a different view. ( 11 ) THE petitioner contended that he did not issue the cheques in question. According to him, the cheque books containing the cheques in question and various other loose cheques were signed and kept in a pouch, and the pouch was missing from his car. He stated that he submitted a Complaint to the police and left instructions to the bank not to honour the cheque books containing the cheques said to have been lost. If what is pleaded by the petitioner is true, it would certainly absolve him of the liability. It would have even rendered the respondent vulnerable to be prosecuted under the relevant provisions of law. Therefore, it needs to be seen as to whether what is pleaded by the petitioner in this regard is correct. ( 12 ) THE two cheques, which are presented and dishonoured, contained numbers 270101 and 270102. It would have even rendered the respondent vulnerable to be prosecuted under the relevant provisions of law. Therefore, it needs to be seen as to whether what is pleaded by the petitioner in this regard is correct. ( 12 ) THE two cheques, which are presented and dishonoured, contained numbers 270101 and 270102. Obviously, those two are the first two cheques contained in the cheque book. Therefore, it is to be presumed that the entire cheque book, without even a single cheque therein having been used, was lost. The petitioner did not dispute the signature on those cheques. It was his case that he signed on all the cheques contained in the various cheque books, which are said to have been lost. The acceptability of such a plea is a different thing. However, the petitioner as dw. 1 has admitted in cross-examination that he has utilised cheques bearing nos. 270103 and 270106 to 270109 from 20th April, 1996 to 20th July, 1996. Had the petitioner lost the entire chequebook, the question of his being in possession of all the cheques except the two presented by the respondent and being in a position to issue and utilise the same does not arise. This itself is sufficient to conclude that the plea raised by the petitioner is factually incorrect. It is to be inferred that the same has been invented by the petitioner to overcome the legally enforceable debt or liability arising out of issuance of cheques. It was exactly to deal with such type of cases that Chapter XVII came to be inserted by the Parliament into the negotiable Instruments Act in the year 1988. Hence, the petitioner was liable to be convicted for the offence under Section 138 of the Act and the conviction ordered against him by the Trial Court in both the cases is confirmed. ( 13 ) THE Trial Court sentenced the petitioner to undergo simple imprisonment for one year and to pay a fine of Rs. 5,000/- in each case. This Court feels that it is a fit case for exercise of power under sub-section (3) of Section 357 of Cr. P. C. , correspondingly, reducing the sentence of imprisonment. Accordingly, the sentence against the petitioner is modified to be the one for simple imprisonment for 6 months and payment of compensation of Rs. 1,00,000/- (Rs. 5,000/- in each case. This Court feels that it is a fit case for exercise of power under sub-section (3) of Section 357 of Cr. P. C. , correspondingly, reducing the sentence of imprisonment. Accordingly, the sentence against the petitioner is modified to be the one for simple imprisonment for 6 months and payment of compensation of Rs. 1,00,000/- (Rs. One lakh only) to the Complainant/ respondent in each of the case, within two months from the date of this order. In default, the petitioner shall be liable to undergo simple imprisonment for 6 months in each case. The sentences as to imprisonment in both the cases shall run concurrently. ( 14 ) THE Crl. R. Cs. are Accordingly disposed of.