Leela Devi vs Arvind Sharma

Sandeep Sharma, J

Instant criminal revision petition filed under Section 397 read with Section 401 of Cr.P.C., lays challenge to judgment dated 04.01.2023, passed by the learned Sessions Judge, Shimla, Himachal Pradesh, in Criminal Appeal No.42-S/10 of 2022, titled as Leela Devi Vs. Arvind Sharma, affirming judgment of conviction and order of sentence dated 06.09.2022/14.09.2022, passed by the learned Additional Chief Judicial Magistrate, Court No.1, Shimla, in criminal case No.21-3 of 2017, whereby the learned trial Court while holding the petitioner-accused (hereinafter, "accused") guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the "Act"), convicted and sentenced her to undergo simple imprisonment for a period of three months and pay compensation to the tune of Rs.3,20,000/- to the respondent-complainant.

Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter, 'complainant') instituted a complaint under Section 138 of the Act, in the competent Court of law, stating therein that accused, who was known to him for last many years, approached him for providing financial assistance to the tune of ₹2,50,000/-. Complainant alleged that aforesaid amount was advanced by him to accused with the assurance that the same would be returned within a period of six months, but ultimately in order to discharge her lawful liability, accused issued Cheque bearing No.343608 dated 11.11.2016, amounting to ₹2,00,000/-, payable at PNB, Sanjauli, Shimla. However, fact remains that aforesaid Cheque on its presentation to the Bank concerned, was dishonoured on 18.11.2016 with the remarks "Insufficient Funds". After receipt of aforesaid return memo, complainant served accused with legal notice dated 22.11.2016 calling upon her to make the payment good well within stipulated time. However, since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings under Section 138 of the Act in the Court of learned Additional Chief Judicial Magistrate, Court No.1, Shimla.

Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 06.09.2022/14.09.2022, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced her, as per the description given hereinabove.

Though, at the first instance, accused preferred an appeal in the Court of learned Sessions Judge, Shimla, Himachal Pradesh, however, same was dismissed vide judgment dated 04.01.2023. In the aforesaid background, petitioner-accused has approached this Court by way of instant proceedings, seeking therein her acquittal after setting aside the judgments of conviction recorded by the Courts below.

Vide order dated 24.01.2023, Co-ordinate Bench of this Court stayed the substantive sentence imposed by the learned Court below, subject to petitioner/accused furnishing bail bonds and depositing 50% of the compensation amount. Though at first instance, aforesaid order was never complied with, rather only sum of ₹25,000/- was deposited in Court, however, during pendency of the case, besides deposit of afore amount, sum of ₹2,50,000/- was paid to the complainant in cash. Record file reveals that more than ten opportunities came to be granted to petitioner-accused to either settle the matter with the complainant or deposit entire amount, but in vain. In the afore background, this Court has no option but to decide the petition on its own merits.

Having heard learned counsel for the parties and perused material adduced on record, vis-a-vis reasoning assigned in the impugned judgments, this Court sees no reason to agree with Mr. Prajwal Sharma, learned counsel representing the petitioner, that Courts below have fallen in grave error while appreciating the evidence, rather this Court finds that both the Courts below have meticulously dealt with each and every aspect of the matter and there is no scope left for interference.

Interestingly, in the case at hand, factum with regard to issuance of Cheque as well as her signatures thereupon never came to be refuted. If it is so, no illegality otherwise can be said to have been committed by the learned Courts below while invoking Sections 118 and 139 of the Act, which speak about presumption in favour of the holder of the Cheque that Cheque was issued towards discharge of a lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused either can refer to the documents and evidence led on record by the complainant or presumption can be rebutted by leading positive evidence, if any. However, in the case at hand, despite sufficient opportunity, accused failed to lead any defence, otherwise attempted to set up by her in her statement recorded under Section 313 Cr.P.C. as well as cross-examination conducted upon complainant.

The Hon'ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the Cheque in question neither raises a probable defence nor is able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:-

"23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that 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 the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 138can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money 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 defendant accused cannot be expected to discharge an unduly high standard of proof". The Court further observed that 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 all preponderance of probabilities.

Therefore, if the accused is able to establish a probable defence which creates doubt 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 inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant.

It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy."

Complainant with a view to prove his case, examined himself as CW-2 and deposed that accused, who was in the urgent need of money for repair work of house, asked for financial assistance to the tune of ₹2,50,000/- from him. He deposed that accused with a view to discharge her lawful liability, issued post dated Cheque No.343608 dated 11.11.2016, amounting to ₹2,00,000/- Ex.CW-1/A, however, same was dishonoured for the reason 'insufficient funds' in the bank account of the accused vide return memo Ex.CW-1/B. He deposed that immediately after receipt of return memo, he served accused with legal notice Ex.CW-2/A through counsel which was returned back unclaimed on 24.11.2016 vide Ex.CW-2/C. Cross-examination conducted upon afore witness nowhere suggests that accused was able to extract anything contrary, to what this witness stated in examination-in-chief. In his cross-examination, CW-2 deposed that he is a businessman by profession. He deposed that he issued a Cheque to the accused in the month of May, 2016 and he also paid ₹50,000/- to the accused in cash. While admitting that he had taken the Cheque from the accused when he made the payment, he stated that the Cheque was post dated and it was filled by accused. While denying that different pens were used to fill the same, this witness stated that no document was reduced into writing at the time of payment. While submitting that he was submitting income tax return, he feigned ignorance regarding the income shown in the income tax return in the year 2016-2017. He deposed that he had shown the money given to the accused in his income tax return. While admitting that he has not produced any document of income tax and account statement along with complaint, he stated that accused basically is of Kotkhai or Kotgarh. While admitting that he has not issued legal notice at her permanent address, he voluntarily stated that she was residing in Sanjauli. While denying that he has issued legal notice on her wrong address, he categorically stated factum with regard to his having issued legal notice to the accused. He denied that he used to lend money to people and falsely implicated the accused and misused her blank Cheque.

Pattern of cross-examination conducted upon complainant clearly establishes factum with regard to her having issued Cheque as well as signatures thereupon. Though by way of cross-examining complainant, accused attempted to project a case that complainant misused her blank Cheque, but she was unable to probabilise the afore defence by stating that for what purpose blank Cheque was handed over to the accused. In case there was no financial transaction inter se her and complainant, there was otherwise no occasion, if any, for her to hand over the blank and signed Cheque to the complainant, who allegedly misused the same.

If the evidence led on record by the respective parties is read in conjunction, this Court sees no reason to differ with the findings returned by the Courts below that complainant successfully proved on record that accused had issued Cheque towards discharge of her lawful liability. Defence otherwise attempted to set up could not be proved by the accused by leading cogent and convincing evidence. Otherwise also, by now it is well-settled that a person is liable for the commission of offence punishable under Section 138 of the Act even if the Cheque is filled by some other person. Reliance in this regard is placed upon judgment passed by the Hon'ble Apex Court in Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197, wherein it was observed as under:

"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.

answered in the negative.

Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.

The fact that the appellant-complainant might have been an Income Tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-accused should have given or signed blank cheque to the appellant-complainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them.

In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act."

Since factum of issuance of Cheque by the accused as well as her signatures thereupon was never disputed, presumption as available under Section 118 and 139 of the Act rightly came to be invoked in the case of the petitioner that Cheque in question was issued in discharge of lawful liability. Since no evidence worth credence ever came to be led on record to rebut the presumption, no illegality can be said to have been committed by the Courts below while holding petitioner/accused guilty for the commission of offence punishable under Section 138 of the Act.

Having scanned the entire evidence adduced on record by the respective parties, this Court finds that all the basic ingredients of Section 138 of the Act are met in the case at hand. Since Cheque issued by accused towards discharge of her lawful liability was returned on account of insufficient funds in the bank account of accused and she despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties.

Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.P.C to re-appreciate the evidence, especially in view of the concurrent findings of fact and law relied upon by the Courts below. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452, wherein it has been held as under:-

"In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."

Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the Courts below, while passing impugned judgments, there is no occasion, whatsoever, to exercise the revisional power.

True it is that the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order, but learned counsel representing the accused has failed to point out any material irregularity committed by the Courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the Courts below.

Consequently, in view of the discussion made hereinabove as well as law laid down by the Hon'ble Apex Court, this Court sees no valid reason to interfere with the well reasoned judgments recorded by the Courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld.

Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender herself before the learned trial Court within a period of 30 days to serve the sentence as awarded by the learned trial Court, if not already served. Bail bonds of the petitioner, if any, are cancelled. Interim order dated 24.01.2023 stands vacated. Amount, if any, deposited by the petitioner-accused with the learned trial Court as well as Registry of this Court is ordered to be released in favour of complainant by remitting the same in his bank account, detail whereof, shall be furnished by his counsel within a period of one week.

Pending applications, if any, also stand disposed of.