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2016 DIGILAW 619 (GAU)

Kamal Kalita v. (Dr. ) Bankim Chandra Kakati

2016-07-13

PARAN KUMAR PHUKAN

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JUDGMENT AND ORDER : Paran Kumar Phukan, J. The revision petitioner stood convicted and sentenced to suffer Simple Imprisonment for 6 (six) months and to pay a compensation of Rs. 18,00,000/- (Rupees Eighteen Lacks) u/s 138 of the Negotiable Instruments Act (in short N.I. Act) by the learned Sub Divisional Judicial Magistrate (S) No. II, Kamrup, Guwahati in Complaint Case No. 4905c/2008. In appeal the learned Addl. Sessions Judge No. 2, Kamrup, Guwahati affirmed the judgment of the learned SDJM No. II reducing the sentence of imprisonment to one month from six months without interfering with the compensation part. 2. Being aggrieved by the judgment the revision petitioner has preferred this petition on the ground that the proceeding not only got vitiated due to improper recording of statement u/s 313 of the CrPC but also the Courts below failed to appreciate the legal position with regard to the non existence presumption of debt u/s 139 of the N.I. Act. 3. Heard Mr. M. Dutta, learned counsel appearing for the petitioner. Also heard Mr. B. Chakraborty, learned counsel appearing for the respondent No.1 as well as Mr. B. J. Dutta, learned Addl. PP appearing for the respondent No. 2. 4. Mr. Dutta, learned counsel strenuously contends that the defence statement of the accused petitioner has not been recorded properly as contemplated u/s 313 of the CrPC which vitiated the trial. His next contention is that there is no presumption of debt u/s 139 of the N.I. Act and the complainant respondent No. 1 having failed to discharge the initial burden of proving the existence of debt or liability of the petitioner towards the respondent No. 1, the findings of the Courts below are erroneous. 5. In controversion, Mr. B. Chakraborty, learned counsel appearing for the respondent No. 1 submits that all the relevant questions were put to the accused revision petitioner at the time of examination u/s 313 CrPC and the petitioner admitted having issued the cheque in favour of the respondent No. 1 and also admitted having received the statutory demand notice and by way of explanation stated that he could not arrange the money for payment. He also admitted regarding dishonor of the cheque due to insufficiency of fund in his account. He also admitted regarding dishonor of the cheque due to insufficiency of fund in his account. Learned counsel going further submits that although no specific question regarding debt or liability was put to the accused but since he has admitted issuance and dishonor of the cheque and also admitted having received the demand notice notifying him about his debt towards the respondent No. 1 it cannot be said that he was unaware of the debt or liability he incurred towards respondent No. 1. His next contention is that the presumption mandated by section 139 of the N. I. Act also includes the existence of a legally enforceable debt or liability and although the petitioner was at liberty to rebut the presumption but has miserably failed to do so. He has neither adduced evidence to rebut the presumption or relied on the materials submitted by the respondent No. 1 in order to raise such defence. 6. In the backdrop of the aforesaid contentions it would be apposite to have a brief discussion on the law relating to N.I. Act. 7. N.I. Act incorporates two presumptions in this regard, one containing in Section 118 of the Act and the other one in section 139 thereof. Section 118(a) reads as under:-- “118. Presumption as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made- 1. 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 liability.” 8. While dealing with the aforesaid two presumptions, the Apex Court in the matter of Premgopal v. Madan P. Sarathi reported in (2009) 1 SCC 492 had been pleased to hold that u/s 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. It is a settled proposition that when the accused has to rebut the presumption u/s 139, the standard of proof for doing so is that of “preponderance of probability”. Therefore, if the accused has been able to raise any probable defence which Courts doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The law is too well settled on the subject and there are catena of decision of the Apex Court and the various High Courts on the principles of law relating to the said provision in the N. I. Act. 9. In Rangappa v. Sri Mohan reported in (2010) 11 SCC 441 , the Apex Court has held that the presumption mandated by section 139 includes a presumption that there exist a legally enforceable debt or liability this of course in the nature of a rebuttal presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is a initial presumption which favours the respondent claimant. The Apex Court has also held, in the aforesaid case which is reproduced below:-- “Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While section 138 of the Act specifies a strong criminal remedy in relation to the dishonor of cheques, the rebuttable presumption under section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in a commercial 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 reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, 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 that of “preponderance of probabilities”. The reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, 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 that of “preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence which creates doubts 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 conceivable that in some cases the accused may not need to adduce evidence of his/her own.” 10. In K.N. Beena v. Muniyappan and anr., reported in (2001) 8 SCC 458 , the Apex Court while discussing the law involving section 138, 139 and 118(a) has held as follows:- “6. In our view the impugned Judgment cannot be sustained at all. The Judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonored cheque is on the complainant. It appears that the learned Judge had lost sight of Sections 118 and 139 of the Negotiable Instruments Act. Under Sections 118 unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebutable. However the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal v. Bratindranath Banerjee Reported in (2001) 6 S.C.C. 16 has also taken an identical view. 7. In this case admittedly the 1st Respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/averments in his reply dated 21st May, 1993 were sufficient to shift the burden of proof onto the Appellant/Complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The High Court appears to have proceeded on the basis that the denials/averments in his reply dated 21st May, 1993 were sufficient to shift the burden of proof onto the Appellant/Complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1st Respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The 1st Respondent not having led any evidence could not be said to have discharged the burden cast on him. The 1st Respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability, the conviction as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction.” 11. In M.M.T.C Ltd., and Anr., v. Medchl Chemicals and Pharma (P) Ltd and anr., reported in (2002) 1 SCC 234 , the Apex Court while discussing the scope of interference by the High Court in exercise of its power u/s 482 CrPC has held that the onus of proving the non-existence of debt or liability lay on the drawer and had to be discharged at the trial. The Apex Court held as follows:-- “17. There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial. At this stage, merely on the basis of averments in the petitions filed by them the High Court could not have concluded that there was no existing debt or liability.” 12. Applying the ratio of the aforesaid cases to the facts of the present case I have found that the respondent No. 1 in his evidence on affidavit has categorically stated that the petitioner owed an amount of Rs. 12,00,000/- (Rupees Twelve lakhs) to him and in the discharge of lawful debt he issued a cheque in his favour bearing no. 2024463 amounting to Rs. 12,00,000/- (Rupees Twelve lakhs) dated 01.04.2008 drawn on his bank namely UTI Bank, Dispur against his account No. 140010100123211. The cheque was presented by the respondent No. 1 to the Standard Chartered bank on 30.07.2008 but the same was dishonoured due to insufficiency of fund in the account. 2024463 amounting to Rs. 12,00,000/- (Rupees Twelve lakhs) dated 01.04.2008 drawn on his bank namely UTI Bank, Dispur against his account No. 140010100123211. The cheque was presented by the respondent No. 1 to the Standard Chartered bank on 30.07.2008 but the same was dishonoured due to insufficiency of fund in the account. The respondent No. 1 having failed to pay the amount within the stipulated period as mentioned in the demand notice he had no other choice but to file a complaint before the Court. The Bank officials who have been examined as PW 2 and PW 3 proved that the cheque was dishonoured when presented by the respondent No. 1 for clearance due to insufficiency of fund. The witnesses were not even cross examined by defence and un-rebutted evidence of the complainant and his witnesses PW 2 and PW 3 established that the cheque was dishonoured by the bank when presented for payment. It is also established that the petitioner owed money to the respondent No. 1 and the cheque was issued to him by the petitioner in the discharge of his lawful debt. The accused petitioner also admitted having issued the cheque and he admitted that he had received the demand notice but he could not pay the amount as he could not arrange the fund. The petitioner, even by “preponderance of probability” could not show that there was no legally enforceable debt or liability. In fact he admitted his liability in his defence statement recorded u/s 313 CrPC. 13. Mr. Dutta, learned counsel appearing for the petitioner by inviting my attention to the judgment of the Apex Court in Sheikh Maksud v. State of Maharashtra reported in (2009) 6 SCC 583 has submitted that the accused petitioner was not afforded opportunity to explain the case made against him while putting questions to him u/s 313 CrPC and the conviction recorded is bad in law. 14. The specific submission of the learned counsel is that the accused petitioner was not asked any question regarding legally enforceable debt or liability. 14. The specific submission of the learned counsel is that the accused petitioner was not asked any question regarding legally enforceable debt or liability. In the instant case admittedly the cheque was issued by the accused petitioner and he also admitted having received the demand notice where it has been specifically mentioned that he owed money to the respondent No.1 and he admitted his liability towards the respondent No. 1 and admitted having issued the cheque and dishonour of the same by the bank. The un-rebutted evidence of the respondent No. 1 and his witnesses coupled with the statements made by the accused petitioner there is no room for doubt that he issued the cheque in the discharge of his debt or liability which he incurred towards respondent No. 1. The accused petitioner not only failed to rebut the presumption even by preponderance of probability but also there is no scope to draw any inference from the materials on record from which it is possible to draw inference that there was no legally enforceable debt or liability. Mere failure of the respondent No. 1 to mention the date on which he advanced the amount to the petitioner is of no consequence in the facts of the given case. 15. In the totality of the above facts and the evidence on record I am of the considered view that the learned Addl. Sessions Judge No. 2 was perfectly justified in its conclusion that the prosecution has established the case and I do not find any infirmity in the said judgment and the same stands affirmed. 16. The Revision accordingly fails. 17. The accused petitioner is directed to surrender before the learned Trial Court within a period of 1 (one) month from today to serve out the sentence and to pay the compensation failing which appropriate action as per law shall be initiated against him by the learned Trial Court. 18. Send down the LCR along with a copy of this Judgment to the Courts below for information and necessary action.