Munawar Ahmed vs The State

Sudip Ahluwalia, J.—This revisional application is directed against the judgment passed by the learned Sessions Judge, Andaman and Nicobar Islands on 30th June, 2014 in Criminal Appeal No. 10 of 2013.

The learned Sessions Judge by the impugned judgment had affirmed an earlier judgment passed by the learned Judicial Magistrate First Class, Port Blair in CR No. 37 of 2011 on 10th June, 2013. The petitioner had been convicted for the offence u/s 138 of the Negotiable Instruments Act, 1881 and sentenced to pay a fine of Rs. 18,50,000/-, out of which Rs. 50,000/- was payable to the State and the balance was ordered to be delivered to the original complainant in whose favour the petitioner had issued a cheque for Rs. 10,00,000/- drawn on the Syndicate Bank, which was subsequently dishonoured allegedly on account of ''insufficiency of funds". Both, the learned Trial Court and the Appellate Court had come to the conclusion that issuance of the concerned cheque, the fact of its being dishonoured due to insufficiency of funds after its valid presentation within the stipulated period, and the subsequent failure of the petitioner/accused to make the requisite payment in compliance of the statutory legal notice sent to him on behalf of the complainant, were satisfactorily proved on account of which he was convicted and awarded punishment in accordance with law.

In this revisional application, however, he has challenged his conviction by inter alia emphasizing the following grounds:-

(i) That the learned Courts below erred in taking a view that the cheque purportedly issued was in discharge of some "legal debt or liability" despite his claim that it was actually issued only as a matter of "Security" for ensuring that the agreement between complainant and his own father for sale of some landed property would be honoured;

(ii) That the learned Courts below erred in holding that the cheque in question was dishonoured by the Bank on which it was drawn, although this fact was not satisfactorily proved by the complainant; and,

(iii) That the demand notice allegedly issued on behalf of the complainant was not specific, on account of which the complaint u/s 138 of N.I. Act ought to have been dismissed.

On going through the impugned judgment and the Annexure P-1 being the original complaint, it becomes clear that the petitioner''s father had originally entered into an agreement for sale of landed property in favour of the complainant within a period of six months. An amount of Rs. 10,00,000/- was paid as consideration by way of a cheque which was subsequently enchased. But, the property was not transferred. All along the petitioner himself had been instrumental in making the deal between his father and the complainant, but had consciously refrained from entering into the transaction himself on account of being a Government servant. When the agreement was not honoured by the petitioner''s father, after much persuasion the petitioner agreed to refund the amount of Rs. 10,00,000/- which he did, by the impugned cheque which was subsequently dishonoured.

In such circumstances it cannot be said that the cheque issued by the petitioner was not towards discharge of any legal liability. Although the agreement was technically between the complainant and the petitioner''s father, yet the petitioner''s own involvement by way of a cheque ostensibly for return of money received by his father within a reasonable time effectively placed him at par as a "Guarantor" to such repayment. He therefore, cannot wriggle out from his own involvement by claiming that the cheque issued by his was only as a "Security" and not under any liability.

In its judgment the learned Trial Court had correctly found that the decision of the Apex Court in the case of Anil Sachar and Another Vs. Shree Nath Spinners P. Ltd. and Others etc., was fully applicable in the present case. In that judgment the Apex Court had observed-

We may also refer to the judgment delivered by this Court in the case of I.C.D.S. Ltd. Vs. Beena Shabeer and Another, . In the said judgment this Court has referred to the nature of liability which is incurred by the one who is a drawer of the cheque. If the cheque is given towards any liability or debt which might have been incurred even by someone else, the person who is a drawer of the cheque can be made liable u/s 138 of the Act. The relevant observation made in the aforestated judgment is as under:

"The words "any cheque" and "other liability" occurring in Section 138 are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statue. These expressions leave no manner of doubt that for whatever reason it may be, the liability u/s 138 cannot be avoided in the event the cheque stands returned by the banker unpaid. Any contra-interpretation would defeat the intent of the legislature."

In this view of the matter, the contention that any debt or legal liability was actually not of the petitioner but of his father becomes totally unconvincing, since the cheque in question had been issued not by the father but the petitioner himself, and surely the intention of the parties could not have been that this would actually be same kind of a sham transaction.

In any case, u/s 139 of N.I. Act, the presumption that the cheque was delivered in discharge of any debt or liability has to go in favour of the complainant, and it can only be rebutted by positive evidence from the defence side. Both the courts below were therefore correct in holding that the impugned cheque was actually issued by the petitioner towards discharge of a legal debt or liability.

The decisions of the Apex Court in Rangappa Vs. Sri Mohan, K. Prakashan Vs. P.K. Surenderan, and Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, have been cited on behalf of the petitioner to emphasize that in a case of this nature, the Trial Court ought to have come to its final decision by arriving at a net result on the basis of "preponderance of probabilities", instead of insisting upon the defence side to rebut any presumptions, since it is the Constitutional right of an accused to remain silent, and the standard of proof required of him need not be as stringent as that required from the prosecution side. However, in the present case it transpires that the petitioner/accused instead of limiting himself to the alleged infirmities or contradictions in the prosecution case, chose to give evidence himself as the sole defence witness in the case, as would be clear from the specific noting of the learned trial Judge-

"Thereafter the accused person had been examined u/s 313 CrPC during which he admitted that he has issued the disputed cheque. The accused also adduced himself as DW-1 in his defence."

In such a situation, once having chosen to take upon himself the burden of proving that the cheque in question was not issued towards discharge of some legally enforceable debt or liability, by himself coming to the dock, the petitioner virtually gave up his prerogative of impeaching the prosecution evidence for the purpose of "preponderance of probabilities", as a mere rebuttal of his statements by way of their denial in his cross-examination virtually stood to demolish his own specific case, and to thereby further strengthen the statutory presumptions in favour to the prosecution under Sections 118 and 139 of N.I. Act.

The next contention that the cheque in question was not dishonoured by the bank on which it was drawn is again unconvincing. The complainant in the usual course deposited the said cheque in his own bank being the State Bank of India, and received the intimation that it was dishonoured due to "insufficiency of funds", within a day. In such circumstances the presumption in view of Section 114 (f) of the Evidence Act would naturally be that the cheque dishonour took place in the normal course of business after getting intimation from the drawee bank itself, and such presumption again can only be countered by positive evidence from the side of the petitioner, which was however not forthcoming. It is not at all the petitioner''s case that deposit or dishonour of the cheque had taken place beyond the statutory period of six months from the date of its issuance. At any rate, this Court is not inclined to go into the minute details pertaining to appreciation of evidence sitting in its revisional jurisdiction.

The last submission raised on behalf of petitioner is regarding the alleged insufficiency or vagueness of the demand notice issued to him by the complainant side which, according to him, does not conform to the standard set down by the Apex Court of Rahul Builders Vs. Arihant Fertilizers and Chemical and Another, is considered. It transpires that the learned Trial judge himself had considered the application of this particular citation of the Apex Court and has reproduced the relevant extract from paras 7, 9 and 12 of the notes in question to come to its finding that the contents were clear, sufficient and specific as to the demand for payment being put to the accused. This Court, therefore, finds not substance in the last contention raised in behalf of the petitioner as well.

For the above reasons, the revisional application is found to be bereft of any substantive merits, and is therefore dismissed.