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2019 DIGILAW 384 (HP)

Dinesh Chopra v. Ranjan Chopra

2019-04-08

TARLOK SINGH CHAUHAN

body2019
JUDGMENT Tarlok Singh Chauhan, J. - This Criminal Revision is directed against the judgment passed by learned Sessions Judge, Kullu on 31.10.2018 whereby he affirmed the judgment of conviction as passed by learned Judicial Magistrate 1st Class, Manali, District Kullu, sentencing and convicting the petitioner/accused (hereinafter referred to as ''the accused'') to undergo simple imprisonment for a period of seven months for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ''Act'') and to pay a lumpsum compensation of Rs.1,25,000/- to the respondent/ complainant (hereinafter referred to as ''the complainant''). The parties shall be referred to as the accused and the complainant. 2. Brief facts giving rise to the present revision petition are that both, the complainant and the accused, were known to each other. On 30.9.2010 the accused borrowed a sum of Rs.1,00,000/- from the complainant and on the same day executed a pronote in his own handwriting in favour of the complainant. Thereafter, on 11.12.2012, the accused in discharge of his liability, issued and handed over a cheque bearing No. 006580 amounting to Rs.1,00,000/- in favour of the complainant, drawn at Bank of India, Branch Office, Manali. The complainant presented the cheque in the bank for encashment, but the same was dishonoured and returned to the complainant with the remarks "Funds Insufficient" as per memo dated 13.12.2012. This led to issuance of legal notice by the complainant on 18.12.2012 to the accused demanding payment, but despite the receipt of the same, no payment was made by the accused. Hence, the complaint. 3. The learned trial Court after recording the preliminary evidence found sufficient reasons to summon the accused for the commission of the offence punishable under Section 138 of the Act and after appearance of the accused, notice of accusation was put to him for the commission of alleged offence, to which the accused pleaded not guilty and claimed to be tried. 4. The complainant in order to prove his case, examined himself as CW-1 and tendered in evidence his affidavits Ex.CW-1/A and Ex.CW-1/J, respectively, pronote Ex.CW-1/B, cheque Ex.CW-1/C, memo Ex.CW-1/D, bank slip Ex.CW-1/E, legal notice Ex.CW-1/F, postal receipt Ex.CW-1/G and acknowledgement Ex.CW-1/H and closed his evidence. 5. After the closure of the complainant''s evidence, the accused was examined under Section 313 Cr.P.C., wherein, he denied the case of the complainant in entirety. However, the accused did not lead any evidence in defence. 6. 5. After the closure of the complainant''s evidence, the accused was examined under Section 313 Cr.P.C., wherein, he denied the case of the complainant in entirety. However, the accused did not lead any evidence in defence. 6. The learned trial Court convicted the accused, as aforesaid, and the said judgment of conviction in turn was upheld by the learned Sessions Judge, Kullu, constraining the accused to file the instant revision petition. 7. It is vehemently argued by Mr. Naveen K. Bhardwaj, learned counsel for the petitioner/accused that the findings recorded by the learned Courts below are perverse and, therefore, deserve to be set-aside and accused deserves to be honourably acquitted. Even though the respondent stood served, however, there is no appearance on his behalf. I have heard learned counsel for the petitioner/accused and have also gone through the material that has come up on record. 8. At the out-set, Sections 118 and 139 of the Act, read as under "118. Presumptions as to negotiable instruments.-Until the contrary is proved, the following presumptions 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; (b) as to date that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer that every transfer of a negotiable instrument was made before its maturity; (e) as to order of endorsements that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. [139. [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.]" 9. In Rangappa vs. Sri Mohan , (2010) 11 SCC 441 , the Hon''ble Supreme Court has reiterated and summarized the principles relating to presumption under Sections 118 and 139 of the Negotiable Instruments Act and rebuttal thereof in the following manner: "26. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (2008) 4 SCC 54 may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable 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, there can be no doubt that there is an initial presumption which favours the complainant. 27. Section 139 of the Act 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 dishonour 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 commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. 28. In the absence of compelling justifications, 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. As clarified in the citations, 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. Judged in light of the aforesaid exposition of law, it was for the accused to have brought on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. 11. It has repeatedly been held by the Hon''ble Supreme Court that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfill the requirements of rebuttal as envisaged under Sections 118 and 139 of the Act. 12. It shall be profitable to refer to the following observations made by the Hon''ble Supreme Court in Kumar Exports vs. Sharma Carpets , (2009) 2 SCC 513 , wherein in paras 20 and 21 it held as under: "20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. 21. The accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. The accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant''s rescue." 13. Notably, the only defence put-forth by the accused was that the cheque was handed over in the year 2010 as a security cheque, when loan was taken from the complainant. The borrowed money was returned before 2012, but the complainant misused the security cheque. Therefore, in such circumstances, it cannot be said that the accused has discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant''s case that he had returned the money. This assumes importance because the petitioner had not denied the issuance of cheque. 14. On the other hand, the complainant has led specific evidence to the effect that the accused was known to him and on approaching him to lend some amount, he on assurance gave a sum of Rs.1,00,000/- for short term as credit without any interest to the accused in the month of September, 2010. The accused in order to discharge his liability had issued a cheque of Rs.1,00,000/- bearing No.006580 Ex.CW-1/C in favour of the complainant and had further entered into an agreement Ex.CW-1/B. When the cheque was presented in the bank, the same was returned as the accused was not having sufficient funds in his account. Legal notice was thereafter issued calling upon the accused to pay the amount within the prescribed period, but despite receipt of the notice, the accused has failed to comply with the notice and to discharge his liability. 15. In this view of the matter, no infirmity much less illegality or perversity can be found in the judgments rendered by the learned Courts below and, therefore, warrants no interference by this Court. 16. 15. In this view of the matter, no infirmity much less illegality or perversity can be found in the judgments rendered by the learned Courts below and, therefore, warrants no interference by this Court. 16. In view of the aforesaid discussion, there is no merit in this revision petition and the same is accordingly dismissed, so also the pending application(s) if any.