Ganesh Rajak vs Umesh Kumar Singh

This appeal has been filed under Section 378 (4) of Cr.P.C. being aggrieved by the judgment dated 27.10.2016 and Criminal Complaint No.14426/2013 passed by Special JMFC (NI Act) Jabalpur, whereby the learned JMFC has acquitted the respondent from the offence punishable under Section 138 of Negotiable Instrument Act, 1881.

According to case, complainant/appellant has filed a complaint before JMFC, Jabalpur stating that he was well introduced with the respondent. During the period from year 2010 to 2013, respondent used to take the debt on interest. He had assured the appellant/complainant to return the amount with interest within stipulated period, but the respondent was avoiding the appellant to do the same. On insisting, the respondent had given a cheque bearing No.570251 of Rs.8,50,000/- dated 02.02.2013 to the appellant/complainant. On presenting the said cheque before the bank, same was dishonoured mentioning that the 'account is not available'. The appellant has sent a legal notice dated 13.04.2013 for demanding the money, but the respondent neither returned the money nor replied the notice. Therefore, the appellant/complainant has filed a complaint against the respondent. After evaluating the evidence available on the case, the learned JMFC has acquitted the respondent.

Learned counsel for the appellant/complainant submits that the judgment passed by the learned JMFC is bad in law and deserves to be set aside. He submits that the learned trial Court failed to appreciate the entire documentary evidence produced by the appellant in trial. He submits that the learned trial Court has given erroneous finding that there is no documents brought on record to show any transaction was made whereas it is proved that the cheque was issued by the respondent and same was presented by the appellant before the bank. The findings of the learned trial Court with regard to cheque return memo that there is no seal of the bank on it, are contrary to fact because it was issued under an authorized signatory of the bank. Merely, on denying by the respondent, the learned trial Court has disbelieved the averments as to cheque issued against the borrowed amount and it was wrongly held without there being any liability to be discharged by the respondent by issuing the questioned cheque. The respondent has narrated a false story that he had taken loan from one Mishri Lal Kaul and he had given the cheque to him which was misused by the complainant/appellant whereas the respondent did not produce Mishri Lal Kaul as a witness. Apart from that the accused/respondent has admitted his signature on the cheque. In support of his contention, he has relied upon the various pronouncements of the Hon'ble Apex Court, same are mentioned here in under :-

Vir Singh Vs. Mukesh Kumar reported in 2019 (4) SCC 197.

P.Venugopal Vs. Madan P. Sarthi reported in AIR 2009 SC 568.

Kishan Rao Vs. Shankargouda reported in AIR 2018 SC 3173.

T.P. Murugan Vs. Bojan reported in AIR 2018 SC 3601.

Ramesh Vs. Smt. Ramshri reported in 2008(1) MPJR SN 4.

Kiran Yugalkishore Bhattad Vs. Sushila Ramcharan Kattamwar reported in 2010 SCC Online Bom 2172.

On the other hand, learned counsel for the respondent opposes the arguments of learned counsel for the appellant and submits that the respondent has never issued any cheque to the appellant but the same was given to Mishrilal Kaul as a security. The complainant has failed to elaborate that when he has given the aforesaid money to the respondent. He has also failed to explain his sources where from he has given the said amount. He further submits that the learned Trial Court has rightly appreciated the fact that in the return memo of the bank, no seal was marked by the bank which creates doubt in the case. Respondent has no legal liability to pay the alleged amount. He also submits that the complainant has misused the cheque which was given to the Mishrilal Kaul and in this regard he has filed the complaint up to Superintendent of Police. With the aforesaid, he prays for dismissal of this appeal.

Heard the arguments of both the parties and perused the record.

On perusal of the record, it appears that there is a dispute of payment of cheque amount of Rs. 8,50,000/- which was alleged to be issued by the respondent to the appellant/complainant. According to complainant, due to some personal need of the respondent he had given the aforesaid amount to him on interest but the respondent did not return the same and issued the alleged cheque which was dishnoured. On perusal of statement of the complainant, it is found that he has given the aforesaid amount in 7 to 8 installments but he has failed to explain about the dates when he did so. The learned counsel for the respondent rebutted the submission of appellant's counsel saying that he had never issued any cheque to the appellant but he has given a disputed cheque to the Mishrilal Kaul who had given the same to the complainant and cheque was misused by him. The complainant has accepted the fact that he knew the accused through Mishrilal Kaul. According to respondent, he has filed the complaint against the Mishrilal Kaul for not giving his cheque. On perusal of Exhibits annexed in the case, it appears that the complaint filed by the accused against the Mishrilal Kaul of dated 02.10.2014 and 29.06.2016 whereas the disputed cheque was dishnoured on 30. 03.2013, prior to filing the complaint, thus, the complaint filed by the accused does not have any substance to consider the same.

Further, the respondent has not disputed his signature on the cheque, thus, the presumption goes against the respondent unless the contrary is proved. Hence, the issue remains in the case is whether the respondent is succeed to rebut the presumption of Section 139 N.I Act ? Before adverting the fact of the case, it is necessary to consider the legal aspects firs. Section 139 of N.I. Act speaks about the presumption in favour of holder and according to it, 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 NI Act for the discharge in whole or in part, of any debt or other liability.

In the case of T.P. Murugan (Supra), the Hon'ble Apext Court described the principle of Section 139 N.I. Act and held as under :

"21. We have heard the Senior counsel for both parties, and perused the record. Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable dept or liability. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan."

the Hon'ble Apex Court In the case of Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SCC 197 has held as under :

In passing the impugned judgment and order dated 21. 11.2017, the High Court misconstrue Section 139 of the Negotiable Instrumens 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.

*** *** *** ***

*** *** *** ***

*** *** *** ***

*** *** *** ***

*** *** *** ***

In K.N. Beena vs. Muniyappan, this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability.

On reading of above said pronouncement, it is manifest that once a cheque has been signed and issued in favour of holder of cheque, presumption of Section 139 N.I. Act comes into picture and in terms of it, it shall be presumed that the cheque is issued in discharged of debt or other liability. However, the said presumption is rebuttable by the accused person by adducing credible evidence that the cheque was issued for some other purpose. Mere denial by the accused was not enough.

Now in view of the aforesaid principle, I proceed with the merits of the case. On perusal of statement of the respondent, it is found that he took loan of Rs. 10 to 15 thousand for his personal need and has given the alleged cheque to him as a security. He repaid the said loan in instalments but Mishri Lal did not return the same. While making cross examination of respondent/accused, the petitioner himself given the suggestion to the respondent that the complaint has given the said cheque as security and the respondent/complainant has accepted the same by saying that he has given the same to Mishri Lal Kol as Security. Further, the petitioner/complaint has also accepted the fact in his cross examination that when he demanded money, the respondent/accused has given the disputed cheque as security.

In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and another reported in (2006) 6 SCC 39, the Hon'ble Apex Court has held as under:-

52.................The Appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefor cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act .

Further, the complainant has failed to disclose the specific date and time to give the alleged amount to the respondent/accused. He has also failed to produce any documentary evidence in this regard. Moreover, it appears that the petitioner has spell out about his source of income saying that he is having a business of dry clean and property dealing and earns more than Rs. 1,00,000/-. but he did not produce any documentary evidence in this regard. Thus, the source of income of the appellant is also not found proof. In the case of K. Subramani Vs. K. Damodara naidu reported in (2015) 1 SCC 99 the Hon'ble Apex Court has held that the complainant has to prove his source of income from which alleged loan was made to the accused. Hence, the defence taken by the respondent/accused is acceptable as probable.

Further, In the case of M.S. Narayana Menon @ Mani (Supra), the Hon'ble Apex Court dealt with the offence of Section 138 of NI Act and held that where two views are possible, the Appellate Court should not interfere with the finding of acquittal recorded by the Court below, relevant para is quoted as under:-

In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.

Accordingly, in view of the aforesaid, I found that the respondent/accused has dully rebutted the presumption of Section 139 N.I. Act and the learned trial Court has rightly acquitted him. Thus, this criminal appeal has not merits and is hereby dismissed.