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2019 DIGILAW 774 (GAU)

Sanjay Kr. Singh v. State of Assam

2019-06-20

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Mr. M.U. Mahmud, learned counsel for the appellant. None appears for respondent No. 2 although the name of the counsel has been shown in the cause list. I have also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State respondent No. 1, who is a formal party in the present case. 2. The present appeal has been preferred against the order of acquittal passed by the learned Additional Chief Judicial Magistrate, Barpeta in N.I. Case No. 14/15, under Section 138 of N.I. Act. 3. The brief fact of the case is that the appellant as complainant had filed the aforesaid case before the court below with the assertion that he had some business transaction with the accused/respondent and out of such business transaction, the accused/respondent issued cheque bearing No. 061130 dated 18.10.2014 for Rs. 11 lakh to the appellant to discharge his liability. Accordingly, the complainant/appellant deposited the cheque to the concerned SBI, Mathgharia Branch for encashment on two occasions on 18.10.2014 and 20.04.2014 and on both occasions, the cheque was returned for insufficient fund. After intimating the matter to the accused/respondent by issuing legal notice, apart from verbal intimation, the complainant finally filed the aforesaid case for non-response by the respondent towards such payment. The accused turned on before the court, contested the case, and denied the charge that was framed under Section 138 of N.I. Act and claimed to be tried. 4. The complainant examined four witnesses including himself to substantiate his case and defence examined none. In the course of cross-examination as well as the statement of the accused recorded under Section 313 Cr.P.C., the accused took the plea that he has only taken Rs. 1 lakh as loan from the complainant and has issued the blank cheque to him as a security for Rs. 11 lakh. He also denied the service of notice upon him. The learned trial court, on examination of the witnesses and the documents annexed, came to the findings that although the complainant has proved the service of notice upon the respondent and also the fact that the cheque issued by the respondent has been dishonoured by the concerned bank, came to a finding that the evidence of complainant as well as the evidence of PW2 is not trustworthy as they have given different versions regarding the transaction made between the parties. It was noted that in his complaint petition, the complainant has simply stated that cheque was issued against the business transaction whereas in his evidence he has stated that the complainant has deposited certain amount of money at different time in the account of the accused/respondent as well as some cash in the hands of the accused/respondent and against the debt and liability, the accused/respondent had issued the cheque. The trial court after discussing the evidence had held that although there is legal presumption in favour of the holder of the cheque, but the same will come into operation only when the evidence of prosecution is cogent regarding the debt or liability and issuance of cheque. It was held that the evidence of prosecution side is not cogent and convincing to bring forth the fact that the accused issued the cheque in favour of the complainant in discharge of a legally enforceable debt or liability and the court was of the opinion that the case of the prosecution is full of serious infirmities and lacuna and it is not a fit case to draw presumption in favour of the holder of the cheque and dismissed the case of the complainant vide impugned order dated 16.08.2017. 5. The present appeal has been preferred challenging the legality and validity of the aforesaid findings. 6. Learned counsel for the appellant has led this Court through the evidence of the complainant as well as the other witnesses on record including the cheque in question and has submitted that the learned trial court has failed to appreciate the entire evidence in proper perspective of fact as well as law. It has been contended that as against the own admission by the accused/respondent about taking of loan from the complainant of Rs. 1 lakh, and also issuance of blank cheque to the complainant, it was incumbent on the part of the court to appreciate as to how far the accused/respondent has rebut the case of the complainant where it was admitted that cheque was issued by him and on the contrary he failed to prove the amount of loan he had taken from the complainant was returned. Accordingly, it has been submitted that there is statutory presumption in favour of the complainant/drawer whereas the court has diverted the attention towards other discrepancies in the evidence of the complainant, which need not be over emphasized in a case under Section 138 N.I. Act. 7. Learned counsel for the appellant has also relied upon the observations made in (2004) 2 SCC 235 Goa Plast (P) Ltd. vs. Chico Ursula D'souza, (2006) 6 SCC 456 , D. Vinod Shivappa vs. Nanda Belliappa, 2015 (1) GLT 339 Bonanza Portfolio Ltd. vs. State of Assan & Another in support of his contention. 8. I have also heard the submission of the learned Additional Public Prosecutor appearing on behalf of State respondent No. 1 who has also justified the findings of the learned trial court where the court below had held that the case of the complainant is full of discrepancies as regard the payment to prove any legal liability on the part of the accused/respondent towards issuance of such cheque. 9. None has appeared on behalf of the accused/respondent No. 2 to submit before this Court. 10. Pursuant to the submission of the learned counsel for both the parties, this Court has gone through the evidence on record. As has been discussed above the appellant/complainant examined four witnesses in support of his case and save and except the plea of denial, the accused has not adduced any rebuttable evidence. It is a settled position of law that an offence under Section 138 N.I. Act can be proved even by raising legal presumption, which is the special feature of the Act, and such case need not be proved beyond reasonable doubt unlike any criminal case. The mandate of law is that transaction in issuance of such cheque etc. are basically civil in nature but criminal liability has also been attached so as to enforce the cheque under the law so that drawer of cheque should be protected under the law and that mischievous act of the tactful drawee of the cheque can be adequately treated by way of law. 11. Section 139 of N.I. Act provides that 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. 11. Section 139 of N.I. Act provides that 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. Similarly, Section 118(a) of the Act provides that until contrary is proved, the court shall presume for that negotiable instrument was made or drawn for consideration. In view of such specific provision of law, the Court is bound to raise statutory presumption under the aforesaid Section of law. But in the case in hand, learned trial court has refused to raise presumption in favour of the complainant considering some other discrepancies in the complaint petition and the evidence on record, the mode of payment of the amount under the cheque. Learned trial court is of the view that the cheque was not issued for discharge of a legally enforceable debt or liability but as a security cheque. 12. In this context, it is found that the learned trial court has failed to appreciate certain aspects of the matter, which is also equally needs consideration. Firstly, the accused/respondent never disputed the issuance of cheque in favour of the complainant but his only contention is that the cheque was blank at the time of the issuance of the same to the complainant and it was issued as a security cheque. Now, the question, therefore, will be under what circumstance the respondent issued the blank cheque to the complaint, is not at all brought on record by the respondent. By way of cross-examination, he has taken the burden that he has taken Rs. 1 lakh from the complainant and the cheque was issued against the same. But the respondent neither has produced any evidence by examining himself in the dock or any other document or by referring to the evidence of the complaint himself that he has not taken such amount form the complainant. As soon as the respondent admitted about taking of loan of Rs. 1 lakh, then it was his bounden duty to prove the same that either he has repaid the said loan or he is ready to pay the said amount when the matter was brought to the court. As soon as the respondent admitted about taking of loan of Rs. 1 lakh, then it was his bounden duty to prove the same that either he has repaid the said loan or he is ready to pay the said amount when the matter was brought to the court. Except raising the plea he remained silent on the issue and observation of the trial court lacks legal comprehension about the rebuttal evidence. As has been mentioned above, once the cheque is admitted to be issued by the respondent, then legal presumption will stand in favour of the complainant/drawer. As the respondent failed to rebut the said evidence in proper perspective of fact and law, the learned trial court is erred in holding that the complainant has suppressed the genesis of transaction between them. 13. On the other hand, although the complainant in his evidence has stated in details as to how the amount was paid to the respondent and it would have a legal significance as soon as the respondent himself has admitted about taking of loan of Rs. 1 lakh and issuance of cheque by him. 14. We may refer to the decision of the Hon'ble Supreme Court reported in (2001) 6 SCC 16 Hiten P. Dalal vs. Bratindranath Benerjee, Bir Singh vs. Mukesh Kumar (2019) 106 SCC 923 for proper appreciation of the matter. In Hiten P. Dalal (supra) it has been held that:- "It it is obligatory on the part of the Court to raise the presumption 138 and 139 of NI Act in every case where the factual basis for raising of the presumption has been established. Both the sections 138 and 139 required that Court shall presume the liability of the drawer of the cheque for the amount for which the cheque were drawn. It introduces an exception to the general rule as to the burden of prove in criminal cases and shift the onus to the accused. Such a presumption is a presumption of law as distinguished from a presumption of facts which describes provision by which the Court may presume certain State of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence because by the letter all that it means is that prosecution is obliged to prove the case beyond reasonable doubt. Presumptions are rules of evidence and do not conflict with the presumption of innocence because by the letter all that it means is that prosecution is obliged to prove the case beyond reasonable doubt. The obligation of prosecution may be discharged with the help of presumption of law or facts unless the accused adduced evidence showing the reasonable possibility of non existence of presume facts." The observations of Bir Singh (supra) is reproduced below:- "21. In passing the impugned judgment and order dated 21-11-2017, the High Court misconstrued Section 139 of Negotiable Instruments Act, which mandates that unless the contrary is proved, it is to be presumed 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. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque. 22. In Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16 , this Court held that both Section 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in State of Madras vs. Vaidyanatha Iyer AIR 1958 SC 61 , this Court held that it was obligatory on the Court to raise this presumption. 23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact as held in Hiten P. Dalal (supra) 36. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact as held in Hiten P. Dalal (supra) 36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has not been issued in discharge of a debt or liability, is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence." In the present case, it is to be noted that the accused/respondent has not disputed his signature in the cheque and also taking of certain amount of loan, but no rebuttal evidence has been adduced to rebut the legal presumption and has simply denied the case of the complainant. The learned trial court has not raised legal presumption as per the law laid down by the Hon'ble Apex Court in Hiten P. Dalal vs. Bratindranath Benerjee and Bir Singh vs. Mukesh Kumar cases. 15. The learned trial court has not raised legal presumption as per the law laid down by the Hon'ble Apex Court in Hiten P. Dalal vs. Bratindranath Benerjee and Bir Singh vs. Mukesh Kumar cases. 15. It appears that the learned trial court accepted the version of the respondent, which is actually not proved by way of any evidence but has chosen to discard the evidence of the complainant, which is specifically brought on record. Peculiarly, the respondent nowhere denied any such transaction between the parties and also about partnership between them as has been stated by the complainant and his witnesses. No person is supposed to issue a blank cheque to another unless any liability. 16. On a bare perusal of the cheque in question, it is found that it was written by one hand, that is, by the respondent and the entire cheque was written in figures and numbers (Rs. 11,00,000.00) and it remains no any scope to hold that the cheque was issued for Rs. 1 lakh and it was manipulated to Rs. 11 lakh. Obviously, the respondent has failed to rebut the presumption under Section 138 of N.I. Act. and the learned trial court has arrived at the findings on different context which is beyond the purview of the special enactment and hence, not sustainable. 17. Taking note of the above, the impugned order of acquittal passed by the learned trial court is hereby set aside. The accused/respondent is convicted under Section 138 of N.I. Act and sentenced him to pay fine of Rs. 15,00,000.00 (Rupees fifteen lakh) only, in default S.I. for 1 (one) year. 18. The respondent will deposit the amount before the trial court within a period of 3 (three) months from today failure of which the trial court is at liberty to proceed as per law. 19. Return the LCR with copy of judgment.