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2019 DIGILAW 933 (GAU)

Md Nurul Islam v. Md Amir Khan

2019-08-26

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. P.P. Dutta, learned Amicus Curiae appearing for and on behalf of the petitioner as well as Mr. M.H. Rajbarbhuiyan, learned counsel representing the respondent. 2. By way of this revision, the petitioner has challenged the impugned judgment and order dated 21.11.2009, passed by the learned Appellate Court of Addl. Sessions Judge, Nagaon, in Criminal Appeal No.35/2007, whereby the learned Appellate Court has affirmed the order of learned trial Court of the Chief Judicial Magistrate, Nagaon wherein accused was convicted under Section 138 of N.I. Act and sentenced the accused/petitioner to pay a fine of Rs.2,50,000/- (Rupees two lakh fifty thousands) as compensation to the complainant, passed in C.R. Case No.1577/2001. 3. Briefly stated the case of the petitioner is that one Md. Amir Khan, complainant/ respondent lodged a complaint against the present petitioner u/s.138 of the N.I. Act, alleging that the complainant is a registered professional money lender having valid registration certificate. The accused Nurul Islam (present revision petitioner) is a business man of the locality who approached the complainant seeking a loan of Rs.3 lacs and the complainant advanced the said amount as loan upon a hand note being executed by the accused. After a few months, the complainant demanded the money back from the accused but he evaded repayment on one after another ground. On repeated request made by the complainant, the accused issued two cheques being No.0078227, dated 18.03.2002 for Rs.62,400/- and No.078228, dated 10.04.2002 for Rs.78,000/- (totaling Rs.1,40,400/-) as a part payment of the total debt. The said two cheques were presented by the complainant in the Nagaon Branch of State Bank of India for collection of the said amount from the accused maintained by the accused with Union Bank of India, Nagaon Branch. On 17.05.2002, the two cheques were returned dishonour due to insufficient fund and the complainant was intimated about the same by the Bank. 4. Thereafter the complainant sent a demand notice to the accused to make the payment of the cheque amount and in response, the accused person sought for some time for payment sent through a registered letter, which was received by the complainant 25.06.2002 but till filing of the complaint case, no payment was made by the accused in respect of the cheque amount. Accordingly the complainant filed a complaint to proceed against the accused u/s.138 of the N.I. Act. 5. Accordingly the complainant filed a complaint to proceed against the accused u/s.138 of the N.I. Act. 5. On appearance of the accused person, the particulars of the offence u/s.138 of the N.I. Act were read over to the accused prior framing of charge and explained to the accused, to which he pleaded not guilty and claimed to be tried. 6. During the trial, the complainant examined himself and two other witnesses in support of the prosecution story and also exhibited some documents. The accused person also examined three witnesses in support of his plea and his statement u/s.313 CrPC was recorded, wherein the accused pleaded not guilty. 7. The learned trial Court, after hearing the argument of the parties, convicted him under Section 138 of N.I. Act and sentenced to pay a fine of Rs.2,50,000/- (Rupees two lakhs fifty thousands) as compensation to the complainant, as aforesaid. 8. On appeal so preferred by the accused/petitioner, the same was dismissed and the order of the trial Court was affirmed and he was directed to surrender before the learned trial Court to make payment within a period of two months from the date of order i.e. 21.11.2009. 9. After losing in two forums, the accused/petitioner has preferred the present revision petition challenging the impugned judgment and order dated 21.11.2009, passed by the learned Appellate Court in Criminal Appeal No.35/2007, inter alia, on the ground that the learned Court below has erred in law as well as in fact while passing the impugned judgment, that the learned Court below has failed to appreciate the relevant provision of law u/s.138(a)/(b) and 142(a)/(b) of the N.I. Act, that the learned Court below has misread and miss-appreciate the evidence on records and came into a erroneous decision, which has resulted in miscarriage of justice. 10. I have heard the submission of Mr. P.P. Dutta, learned Amicus Curiae appearing for the petitioner as well as Mr. M.H. Rajbarbhuiyan, learned counsel for the respondent. It may be mentioned that the petitioner remain unrepresented by engaged counsel, hence, Mr. PP Dutta, was appointed as Amicus Curiae to represent the petitioner. 11. Perused evidence and documents on record and the impugned judgment. P.P. Dutta, learned Amicus Curiae appearing for the petitioner as well as Mr. M.H. Rajbarbhuiyan, learned counsel for the respondent. It may be mentioned that the petitioner remain unrepresented by engaged counsel, hence, Mr. PP Dutta, was appointed as Amicus Curiae to represent the petitioner. 11. Perused evidence and documents on record and the impugned judgment. Being a Revisional Court, this Court is to look into whether there is any perversity or illegality or otherwise any misreading of evidence by the court below and safe and except above aspect the scope of Revisional Court is limited. 12. On a careful scrutiny of evidence on record it is to be noted that the accused/petitioner has not denied the issuance of cheques rather his stand is dubious. The complainant/respondent (PW1) has duly proved the cheque in question with the signature of the accused/petitioner in the aforesaid cheques and the witnesses from the bank concerned (PW2 and PW3) has also proved that the cheques were issued in the name of accused and the cheques were dishonoured from the concerned bank. The accused in his statement under Section 313 Cr.P.C. has totally denied about issuance of two cheques in question along with his signature therein which is itself contrary to his stand taken during the course of cross-examination (trial). The accused in his cross-examination has stated that he issued two blank cheques to the complainant as well as some gold ornaments as a security at the time of taking loan of Rs.1 lakh from the complainant in the year 2001. But he led no evidence to prove that he has returned the said loan to the complainant and his inconsistent plea itself reveals the falsity of his case. There cannot be two inconsistent and contradictory answers to the same episode. 13. On the next, the accused took plea of non-receipt of demand notice prior to filing of the complaint. But the same is also devoid of merit inasmuch as the complainant/respondent has duly proved the sending of notice vide Ext.6 and in response to which the accused has made the reply through Ext.7 whereby he has prayed for time to make the payment. But the same is also devoid of merit inasmuch as the complainant/respondent has duly proved the sending of notice vide Ext.6 and in response to which the accused has made the reply through Ext.7 whereby he has prayed for time to make the payment. In Ext.7 it is clearly stated by the accused that due to some urgent need he had to withdraw money from this account after issuance of cheque and as such he requested the complainant to wait for some time so that he could deposit sufficient money towards payment of the cheques. The accused disowned his signature in Ext.7 and also disowned his writing in the cheques in words. But he never prayed for verification of the signature and writing in the cheques as well as the reply to the legal notice, i.e. Ext.2, Ext.3 and Ext.7, through handwriting expert. The learned court below has appreciated the above aspect in due manner. 14. Another plea has been taken by the accused/petitioner to resist the case of the complainant/the respondent the complainant has no valid registration certificate to show that he carried the business of money lending. But the learned trial court from the evidence on record find and hold that the complainant is a registered money lender having valid licence bearing No.CNB(N)3/99. Such a plea, of course, has no bearing in a case under Section 138 N.I. Act inasmuch as the cheques in question were issued by the accused/the petitioner herein. 15. The Negotiable Instruments Act was enacted and Section 138 thereof incorporated with a specific object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the Redressal of grievances to litigants. Efforts to defeat the objective of law by resorting to innovative measures and methods are to be discouraged, Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd., (2001) 6 SCC 463 . Section 138 of the Negotiable Instruments Act contains a penal provision. It is a special statute, it creates a vicarious liability. Even the burden of proof to some extent is on the accused. Section 138 of the Negotiable Instruments Act contains a penal provision. It is a special statute, it creates a vicarious liability. Even the burden of proof to some extent is on the accused. Having regard to the purport of the said provision as also in view of the fact that it provides for a severe penalty, the provision warrants a strict construction, Sarav Investments & Financial Consultancy (P) Ltd. v. Llyods Register of Shipping, Indian Office, Staff Provident Fund, (2007) 14 SCC 753 . Considering the language used in Section 138, it is only the “drawer” of the cheque who can be made liable for the penal action under the provisions of the Act. It is settled law that strict interpretation is required to be given to penal statutes, Aparna A. Shah v. Sheth Developers Private Limited, (2013) 8 SCC 71 . 16. In the instant case, save and except denial to the case of the complainant, the accused failed to prove his defence at all. Under Section 118/139 of the N.I. Act unless contrary is proved the court is to draw presumption that the holder of cheque is a holder in due course obtained from this lawful owner and he received the cheque of the nature referred to Section 138 for discharge, in whole or in part of any debt and liability. It will be appropriate to refer the observation of the Hon'ble Supreme Court in Bir Singh vs. Mukesh Kumar, (2019) 106 SCC 923 and Hiten P. Dalal vs. Batindra Nath Banerjee, (2001) 6 SCC 16 . The observation in the case of Bir Singh (supra) is quoted below:- “21. In passing the impugned judgment and order dated 21-11- 2017, the High Court mis-construed 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. 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, (20016) 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, (1958) AIR 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).” (para 24-35 are not relevant) “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 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”. 17. In Hiten P. Dalal (supra), it has been held that 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. 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. 18. So far as regard the service of notice, in D. Vinod Chivappa vs Nanda Belliappa, (2006) 6 SCC 456 and in, M/s Jayalakshmi Textile vs S.K. Kolandasanay,(2015) 1 LW(Crl) 720 it has been held that when notice is sent by registered post correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause-(b) of the provision to Section 138 N.I. Act stands complied with. Needless to emphasize that the complaint must contain basic fact regarding the mode and manner of issuance of notice to the drawer of the cheque. 19. Needless to emphasize that the complaint must contain basic fact regarding the mode and manner of issuance of notice to the drawer of the cheque. 19. As in the present case the accused/petitioner has failed to rebut the statutory presumption raised in favour of the holder of the cheque in due course as has been discussed above, save and except raising the plea of denial, which holds no water. There appears no illegally and perversity in findings of the court below to interfere into. 20. The revision petition stands dismissed accordingly. 21. This Court appreciates the assistance rendered by Mr. P.P. Dutta, learned Amicus Curiae while conducting the case and the Assam Legal Services Authority is hereby directed to provide him a sum of Rs.7,000/- (Rupees seven thousands) only, as remuneration. 22. Return back the LCR along with a copy of judgment.