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2013 DIGILAW 973 (ALL)

Vinod Kumar Singh v. Lal Saheb Singh

2013-03-22

SURENDRA VIKRAM SINGH RATHORE

body2013
JUDGMENT Hon’ble Surendra Vikram Singh Rathore, J. : Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the material available on record. 2. By means of the instant revision, the revisionist has challenged the concurrent finding of his conviction under Section 138 of the Negotiable Instrument Act. The revisionist was tried in Case No. 774 of 2008 (Lal Saheb Vs. Vinod Kumar) under Section 138 of the Negotiable Instrument Act by the learned Judicial Magistrate, Pratapgarh and by judgment dated 28.5.2011, he was held guilty for the aforementioned offence and sentenced to undergo one year rigorous imprisonment, and fine of Rs. 5,000/- and also with compensation of Rs. 14,00,000/-. Fine imposed on him contained default stipulation of two months imprisonment. Feeling aggrieved by the aforementioned judgment of the trial court, the revisionist preferred criminal appeal no. 56 of 2011 and the learned Sessions Judge, Pratapgarh by his judgment dated 28.8.2012 partly allowed the appeal. Conviction of the revisionist was confirmed. The sentence imposed upon him was modified to the extent that the amount of Fine of Rs. 5,000/- and clause of default stipulation was deleted and the remaining sentence including compensation was confirmed. 3. Brief facts necessary for disposal of the present controversy are that Lal Saheb (hereinafter referred to as ‘complainant’) had given Rs. 9,87,000/- in connection with his business of subcontractor to the revisionist. To repay the same, revisionist issued Cheque No. 306959 (00002400031) on 28.7.2008. When this cheque was deposited for encashment in the bank by the complainant, the same was dishonoured on the ground of insufficiency of fund. The information of refusal dishonouring of the cheque was received by the complainant on 22.8.2008 thereafter he made an effort to contact the revisionist on phone but the revisionist avoided his phone calls. Thereafter a legal notice as provided under Negotiable Instrument Act was sent to the revisionist. By the said notice, the complainant had demanded the payment of cheque amount but the revisionist neither replied the said notice nor made any payment. Thereafter the complaint was filed on which the revisionist was summoned to face trial. During trial, the complainant was examined as PW-1 and the relevant documents were also proved. The defence of the revisionist was that he had never issued the said cheque to the complainant. The case of the revisionist is that he had filled up one cheque for Rs. During trial, the complainant was examined as PW-1 and the relevant documents were also proved. The defence of the revisionist was that he had never issued the said cheque to the complainant. The case of the revisionist is that he had filled up one cheque for Rs. 87,000/- only and had signed it. The said cheque was lost and therefore, he gave an information to this effect at the police station concerned and also informed the bank not to make payment of this cheque. The revisionist himself examined and has also filed a copy of application sent to the Bank for stopping the payment of the cheque in question and also the carbon copy of the application given at the police station regarding loss of the cheque. After considering the evidence in detail, the revisionist was convicted by the trial court as mentioned above, hence an appeal was preferred, which was also dismissed by a detailed and reasoned order. Hence the instant revision. 4. Learned counsel for the revisionist submits that before the trial court he had taken a defence that he had not received legal notice as provided under the Negotiable Instrument Act but he fairly conceded that this ground taken by him was incorrect because an application under Section 482 Cr.P.C. was moved to quash the proceedings wherein he had admitted the receipt of the notice. Now the submission of learned counsel for the revisionist is two fold. First is that the cheque was not issued in favour of the complainant; and the amount which was filled in the cheque was not filled by him and also that the complainant had no financial capacity to advance such a huge amount to the revisionist, but this aspect was not correctly considered by the trial court nor by the appellate court. It is further submitted that the presumption under Section 118 and 139 of the Negotiable Instrument Act were duly rebutted by him but the same was not given due consideration by the courts below. 5. Learned counsel for the complainant has submitted that in this case all the ground taken by the revisionist were taken before the trial court and also before the appellate court and the same have been considered in correct perspective. No interference is warranted in the judgment of the courts below. 5. Learned counsel for the complainant has submitted that in this case all the ground taken by the revisionist were taken before the trial court and also before the appellate court and the same have been considered in correct perspective. No interference is warranted in the judgment of the courts below. It is further submitted that presumption under Section 118 of 139 of the Negotiable Instrument Act was against the petitioner and he had failed to rebut the said presumption. 6. Before proceeding further in this matter, it is necessary to quote Sections 118 and 139 of the Negotiable Instrument Act. Section 118 (a) reads as under: - ”118. Presumption as to negotiable instruments.-Until the contrary is proved, the following presumption shall be made- (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.” Section 139 of the Act reads as under: - ”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 liablity.” Hon’ble the Apex Court in the case of P. Venugopal Vs. Madan P. Sarathi reported in [ (2009) 1 SCC 492 ] has considered the abovementioned two sections and held as under: - ”under Sections 139, 118 (a) and 138 of the N.I. Act existence of debt or other liabilities has to be proved in the first instance by the complainant but thereafter the burden of proving to the contrary shifts to the accused. Thus, the plea that the instrument/cheque had been obtained from its lawful owner or from any person in lawful custody thereof by means of an offence or fraud or had been obtained from the maker or acceptor thereof by means of an offence or fraud or for unlawful consideration, the burden of disproving that the holder is a holder in due course lies upon him. Hence, this Court observed therein, that indsiputably, the initial burden was on the complainant but the presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. Hence, this Court observed therein, that indsiputably, the initial burden was on the complainant but the presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. Thereafter, the presumption raised does not extend to the extent that the cheque was not issued for the discharge of any debt or liability which is not required to be proved by the complainant as this is essentially a question of fact and it is the defence which has to be proved by the complainant as this is essentially a question of fact and it is the defence which has to prove that the cheque was not issued towards discharge of a lawful debt.” 7. Hon’ble the Apex Court in the case of M.S. Narayana Menon Vs. State of Kerala reported in [ (2006) 6 SCC 39 ] has considered the law regarding presumptions in relation to Negotiable Instrument Act and has held in paragraph nos. 29, 30 32 and 41 as under: - ”29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words “proved” and “disproved” have been defined in Section 3 of the Evidence Act (the interpretation clause)… 30. Applying the said definitions of “proved” or “disproved” to the principle behind Section 118 (a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, unless the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose the evidence adduced on behalf of the complainant could be relied upon. Xx xx xx xx xx 32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. Xx xx xx xx 41. Xx xx xx xx xx 32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. Xx xx xx xx 41. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the ‘prudent man’.” 8. Ratio of M.S. Narayana Menon case was again followed by the Apex Court in subsequent judgment in the case of K. Prakashan Vs. P.K. Surenderan reported in [ (2008) 1 SCC 258 ]. In the case of K. Prakashan (Supra) Hon’ble the Apex Court in paragraph 13 and 14 held as under: - ”13. The Act raises two presumptions; firstly in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumption both under Sections 118 (a) and 139 are rebuttable in nature. 14. It is furthermore not in doubt or dispute t hat whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability.” 9. In a very recent judgment in the case of Vijay Vs. Laxman and Anr reported in [JT (2013) 2 SC 562] Hon’ble the Apex Court has considered the law on this point in detail. 10. Now we come to the facts of the case in hand, in the aforementioned legal background. It is to be seen whether the revisionist has been successful in rebutting the presumption under the aforesaid sections. Sofar as the argument of revisionist that he had not issued the cheque in favour of the complainant, is not supported by the evidence on record. The case of the revisionist is that he filled the cheque with an amount of Rs. 87,000/- and signed it and without filling the name of the party in whose favour it was to be issued, he kept it, which was subsequently lost. The case of the revisionist is that he filled the cheque with an amount of Rs. 87,000/- and signed it and without filling the name of the party in whose favour it was to be issued, he kept it, which was subsequently lost. But this submission does not appeal to reason. Because what was the urgency to the revisionist to fill up the cheque without filling the name of the party, in whose favour he intended to issue it. Unless the person in whose favour cheque was to be issued is certain, how the amount can be ascertained. Further perusal of the cheque, which is on record, shows that there is absolutely no cutting overwriting or interpolation in the amount of cheque either in words or in numbers. Perusal of the evidence shows that on 9.7.2008 there were only Rs. 1237/- and on 6.9.2008 the balance was Rs. 14,680/- in the account of “Saumya Enterprises” from which cheque was issued. Generally the words and the numbers in the relevant columns of the cheques are filled up from the place, the column starts without leaving any space. This is done to avoid any interpolation. But in the facts of this case amount of cheque, as admitted by the revisionist himself (Rs. 87,000/-) was filled up after leaving a long space. The revisional court observed that words and figure were filled up in the same handwriting. The submission of the learned counsel for the revisionist is also that he used to fill up cheques in hindi language. But he himself has admitted amount of Rs. 87,000/- and signatures to be in his own writing, and amount in numbers and signatures both are in english. It is also pertinent to mention that on the back of the cheque the revisionist has certified the signatures of the complainant and has signed this certificate. gLrk{kj izekf.kr yky lkgc signature of the revisionist”. In his statement under Section 313 Cr.P.C. he has stated that he has not received any notice while he had admitted in his evidence that the facts mentioned in application under Section 482 Cr.P.C. in para 5-8 are correct. It was mentioned in the application under Section 482 Cr.P.C. that complainant Lal Sahab was his employee while in defence during trial it has been denied. It was mentioned in the application under Section 482 Cr.P.C. that complainant Lal Sahab was his employee while in defence during trial it has been denied. Some other arguments have also been pressed into service but the same have already been rightly considered by the appellate court and to repeat them would unnecessarily lengthen this judgment. 11. Submission of the learned counsel for the revisionist is that the cheques were lost, therefore, he informed the bank not to make payment of said cheque has also no legs to stand because on presentation of the cheque, the memo which was issued was to the effect “insufficiency of fund”. The cheque was not dishonoured because the bank was instructed for stopping the payment. Inspite of several opportunities having been given, the revisionist failed to produce any witness of the bank to prove his assertion that he had moved any application to stop payment of the said cheque, therefore, mere filing of the copy of the application cannot be said to be sufficient evidence to prove his assertion. The copy, which is alleged by the revisionist to be given at the police station has also not been proved in his defence, therefore, carbon copy of the same being inadmissible in evidence could not have been taken into consideration. On the basis of mere copies of application and without proof of the fact that seals affixed thereon are genuine and these applications were actually given to proper person, the same cannot be taken to be of any support to rebut the legal presumption against the revisionist. The next submission is that the financial position of the complainant was not so sound as he could have advanced such huge amount to the revisionist. On this point, the witness has been cross examined and this point was also considered by the trial court and also by the appellate court and after going through the finding of the courts below, this Court is of the considered view that there was no illegality or infirmity in the said finding. 12. In view of the discussion made above, the instant revision deserves to be dismissed and is hereby dismissed.