Umavati Devi vs Shivji Thakur

Alok Singh, J

Present appeal is filed against the judgment and order dated 14.08.2004 passed by Special Judicial Magistrate, Rishikesh, in Complaint C G No. 2720 of 2013 whereby learned Magistrate was pleased to dismiss the complaint case under Section 138 of the Negotiable Instruments Act filed by the appellant against the respondent.

Brief facts of the present case are that appellant gave Rs. 1,90,000/- to the respondent. After one month, for repayment respondent gave her a cheque dated 18.03.2013. Appellant presented the cheque and the same was dishonoured due to mismatch of signature. Appellant issued notice to the respondent. When respondent failed to make payment, appellant filed a complaint under Section 138 of the N.I. Act. The complaint was dismissed. Feeling aggrieved, appellant has approached this Court.

Case of the respondent is that he took loan of Rs. 35,000/- from the petitioner. Out of Rs. 35,000/-, he repaid Rs. 22,000/- and only Rs. 13,000/- are left to be paid. A blank cheque was issued as a security of Rs. 35000/-. He admitted his signature on the cheque.

Accused - respondent took a specific plea that complainant has no source of income, therefore, she was not in a position to extend a loan of such huge amount.

Complainant in her statement took different stands regarding arrangement of money. She stated that she took this money from her known ones. Thereafter, she stated that she gave this money from her own sources. She stated that she had 4-5 jersey cows and out of these cows, she sold two cows and the amount so received was given to the accused respondent. Complainant admitted that she is a house wife and her husband is tomato sellers and he earned Rs. 100 to Rs. 1000/- per month.

In the of late judgment, Hon'ble Supreme Court in the case of Basalingappa Vs. Mudibasappa reported in the AIR 2019 SC 1983, has held as under:

"We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:

(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

(ii) The presumption Under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

(iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

(iv) That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.

(v) It is not necessary for the Accused to come in the witness box to support his defence."

In the present case, signature on the cheque was admitted by the respondent, therefore, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability but statement of complainant does not inspire confidence. Complainant failed to prove her financial capacity. She was a house wife and her husband's monthly income was Rs. 100 - 1000 per month. Therefore, in such circumstances, she was not in position to lend Rs. 1,90,000/- to the respondent, that too without knowing the reasons for lending the money. More so, the complainant has not explained as to what was the purpose of lending such a huge amount. Complainant sometimes stated that respondent took the amount for taking Viza or for taking Vehicle or for medical treatment. There are contradictions in the statement and contents of plaint. In the plaint, she stated that respondent took the loan for one month and after one month, respondent issued the cheque on 18.03.2013. In the cross examination she stated that she approached the respondent for payment after 3-4 month of lending of money.

I do not find any merit in the appeal. Accordingly, appeal fails and is hereby dismissed.

Let lower court record be sent back forthwith.