Varinder Kumar vs Nokh Ram

Sandeep Sharma, J

Instant criminal revision petition filed under S. 397 read with S.401 CrPC, lays challenge to judgment dated 2.11.2020, passed by learned Sessions Judge, Shimla in Cr. Appeal No. 5-S/10 of 2020 affirming judgment of conviction and order of sentence dated 16.12.2019 and 15.1.2020 passed by learned Judicial Magistrate First Class Court No.4 Shimla in Cr. Case No. 289-3 of 2019/2014, titled Nokh Ram vs. Varinder Kumar, whereby learned court below, while holding petitioner- accused (hereinafter, 'accused') guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, 'Act') convicted and sentenced him to undergo simple imprisonment for three months and to pay compensation of Rs.1,60,000 to the respondent-complainant (hereinafter, 'complainant').

Precisely, the facts of the case, as emerge from the record, are that the complainant instituted a complaint under S.138 of the Act before learned trial Court, alleging therein that he had family relations with the accused, who approached him to meet financial crises. Complainant alleged that he advanced 1,50,00 to the accused on his request, who with a view to discharge his liability, issued cheque bearing No. 422260 dated 10.1.2016 amounting to Rs. 1,50,000/- of his account maintained by him in UCO Bank ARTRAC Shimla. However, the fact remains that the cheque (Exhibit CW-1//A), on its presentation, was dishonoured on account of insufficient funds. After having received return memo Exhibit CW-1/C from the Bank concerned, complainant served accused with legal notice Exhibit CW-1/D, calling upon him to make good the payment within the time stipulated in the legal notice but since the accused failed to make the payment within the time stipulated in legal notice, complainant was compelled to institute complaint under S.138 of the Act.

Learned trial Court, on the basis of the pleadings and the evidence adduced on record by respective parties, held the accused guilty of having committed offence punishable under 138 of the Act and convicted and sentenced him as per description given herein above.

Being aggrieved and dissatisfied with judgment of conviction and order of sentence passed by learned trial Court, accused preferred an appeal before Sessions Judge, Shimla, which also came to be dismissed on 2.11.2020. In the aforesaid background, petitioner has approached this court in the instant proceedings, praying therein for his acquittal after setting aside judgments of conviction and order of sentence recorded by learned courts below.

Vide order dated 26.11.2020, this court suspended the substantive sentence imposed by learned trial Court, subject to deposit of the compensation amount and furnishing personal bonds in the sum of Rs.25,000, within six weeks, however, the fact remains that the said order never came to be complied with despite repeated adjournments. This court was informed that the accused is ready and willing to deposit the entire amount of compensation but, till date, neither he has come present in court despite specific orders passed in this regard by this Court, nor has deposited the amount of compensation.

Today, during proceedings of the case, learned counsel for the accused states that since accused is not coming forward, to deposit the amount, as such, this court may proceed to decide the case on its merit.

Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned by learned Courts below, while holding accused guilty of having committed offence punishable under 138 of the act, this court finds it difficult to agree with learned counsel for the petitioner that the learned courts below have failed to appreciate the evidence in right perspective rather, close scrutiny of evidence and pleadings clearly reveals that both learned courts below have dealt with each and every aspect of the matter meticulously and no scope is left for interference by this court.

Interestingly, in the case at hand, there is no denial on the part of accused with regard to issuance of cheque as well as his signatures thereupon. He has categorically stated in the statement recorded under S.313 CrPC, that he had not issued cheque in question to the complainant but to his son-in-law, who further gave it to the complainant as security.

Once there is no denial of issuance of cheque and signatures thereupon, presumption as available under Ss.118 and 139 comes into play. Section 118 and 139 of the Act clearly provide that 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 for the discharge, in whole or in part, of any debt or other liability. True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant.

Reliance in this regard is placed upon judgment rendered by Hon'ble Apex Court in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106, wherein, it has been held as under:

"18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence.

In order to discharge his burden, the accused put forward the defence that in fact, he had had the monetary transaction with the said Shri Jagdishbhai and not with the complainant. In view of such a plea of the accused-appellant, the question for consideration is as to whether the accused-appellant has shown a reasonable probability of existence of any transaction with Shri Jagdishbhai? In this regard, significant it is to notice that apart from making certain suggestions in the cross-examination, the accused- appellant has not adduced any documentary evidence to satisfy even primarily that there had been some monetary transaction of himself with Shri Jagdishbhai. Of course, one of the allegations of the appellant is that the said stamp paper was given to Shri Jagdishbhai and another factor relied upon is that Shri Jagdishbhai had signed on the stamp paper in question and not the complainant.

19.1 We have examined the statement of Shri Jagdishbhai as also the said writing on stamp papers and are unable to find any substance in the suggestions made on behalf of the accused-appellant.

19.2 The said witness Shri Jagdishbhai, while pointing out his acquaintance and friendship with the appellant as also with the respondent, asserted in his examination-in-chief, inter alia, as under:

"Accused when he comes to our shop where the complainant in the matter Shashimohan also be present that in both the complainant and accused being our friends, were made acquaintance with each other. The accused had necessity of money in his business, in my presence, had demanded Rs.22,50,000/- (Rupees twenty two lacs fifty thousandly) on temporary basis. And thereafter, the complainant from his family members by taking in piecemeal had given to the accused in my presence. Thereafter, on demanding the money by the complainant, the accused had given seven (7) cheques to the complainant in our presence but such cheques being washed out in rainy water and on informing me by the complainant I had informed to the accused. Thereafter, Rohitbhai had given other seven (7) cheques to the complainant in my presence and the deed was executed on Rs. 100/- stamp paper in there is my signature."

19.3 This witness was cross-examined on various aspects as regards the particulars in the writing on the stamp paper and the date and time of the transactions. In regard to the defence as put in the cross-examination, the witness stated as under:

"I have got shop in National Plaza but in rain no water logging has taken place. It is not true that there had been no financial dealings between me and the accused today. It is not true that I had given rupees ten lacs to the accused Rohitbhai on temporary basis. It is not true that for the amount given to the accused, I had taken seven blank duly cheques also blank stamp paper without signature. It is not true that there was quarrel between me and the accused in the matter of payment of interest. It is not true that even after the payment of Rs. ten lacs and the huge amount of the interest in the matter of interest quarrel was made. It is not true that due to the reason of quarrel with the accused, in the cheques of the accused lying with me by making obstinate writing has filed the false complaint through Shashimohan Goyanka. It is not true that no financial dealings have taken place between the complainant and the accused. therefore I also the complainant both at the time of evidence the accused at what place, on what date at what time, the amount taken has not been able to make clearly. (sic) It is not true that the blank stamp paper duly signed were lying in which obstinate writing has been made therefore the same has not been registered through sub registrar. It is not true that the dealings have been made between me and accused therefore there is my signature and the signature of the accused and the complainant has not signed. It is not true that any types of dealings between the accused and the complainant having not been done in my presence therefore in my statement no clarification has been given. It is not true that the accused in my presence as mentioned in the complaint any cheque has not been given. It is not true that I in collusion with the complainant to usurp the false amount the false complaint has been filed through Shashimohan Goyanka. It is not true that in support of the complaint of Shashimohan Goyanka is giving false statement."

19.4 The statement of Shri Jagdishbhai does not make out any case in favour of the accused-appellant. It is difficult to say that by merely putting the suggestion about the alleged dealing to Shri Jagdishbhai, the accused- appellant has been able to discharge his burden of bringing on record such material which could tilt the preponderance of probabilities in his favour.

19.5 The acknowledgement on the stamp paper as executed by the appellant on 21.03.2007 had been marked with different exhibit numbers in these 7 cases. In Complaint Case No. 46499 of 2008, the same is marked as Ex. 54 and reads as under :

"Today the executor I Rohit Patel Ranchhodray Masala is a partner. Due to the financial difficulties having been arised, I have taken Rs.22,500,000/- (Rupees twenty two thousand fifty thousand only- sic) from my group which are to be paid to Shashimohan Goyanka. With reference to that today I have given seven (7) cheques of Corporation Bank, Alkapuri Branch bearing No. 763346 to 762252 amounting to Rs. 22,50,000/- (Rupees twenty two lacs fifty thousand only) Dates : (1) 01/4/08, (2) 01/05/08 (3) 01/07/08, (4) 01/08/08 (5) 01/10/08 (6) 01/11/08 (7) 01/12/08 the account of which is 40007.

Earliest these cheques were given but due to rainy water logging the said cheques having been washed out (7) cheques have again been given which is acceptable to me."

19.6 The fact of the matter remains that the appellant could not deny his signatures on the said writing but attempted to suggest that his signatures were available on the blank stamp paper with Shri Jagdishbhai. This suggestion is too remote and too uncertain to be accepted. No cogent reason is available for the appellant signing a blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of Bank and account number are of the same cheques which form the subject matter of these complaint cases. The said document bears the date 21.03.2007 and the cheques were post- dated, starting from 01.04.2008 and ending at 01.12.2008. There appears absolutely no reason to discard this writing from consideration.

19.7 One of the factors highlighted on behalf of the appellant is that the said writing does not bear the signature of the complainant but and instead, it bears the signatures of said Shri Jagdishbhai. We find nothing unusual or objectionable if the said writing does not bear the signatures of the complainant. The said writing is not in the nature of any bi partite agreement to be signed by the parties thereto. It had been a writing in the nature of acknowledgement by the accused-appellant about existence of a debt; about his liability to repay the same to the complainant; about his having issued seven post-dated cheques; about the particulars of such cheques; and about the fact that the cheques given earlier had washed away in the rain water logging. Obviously, this writing, to be worth its evidentially value, had to bear the signatures of the accused, which it does. It is not unusual to have a witness to such a document so as to add to its authenticity; and, in the given status and relationship of the parties, Shri Jagdishbhai would have been the best witness for the purpose. His signatures on this document, therefore, occur as being the witness thereto. This document cannot be ruled out of consideration and existing this writing, the preponderance of probabilities lean heavily against the accused-appellant.

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 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."

In the case at hand, complainant with a view to prove his case examined himself as CW-1 and successfully proved on record contents of the complaint. Cross-examination conducted upon this witness nowhere suggests that the opposite party was able to extract anything contrary to what he stated in his examination-in-chief. This witness testified that on 6.2.2015, he had withdrawn Rs.60,000 from his bank account and remaining amount of Rs.90,000 was lying as cash in his house. He deposed that Rs.1,50,000 was delivered by him in cash to the accused at his house. This witness further deposed that the accused assured him that entire sum taken by him would be repaid within 2-4 days. This witness tendered in evidence cheque, Exts. CW-1/A, intimation CW-1/B, return memo CW-1/C, legal notice Ext. CW -1/D, postal receipt Ext. CW-1/E and RAD envelop undelivered, Ext. CW -1/F.

During cross-examination, this witness stated that he had retired in the year 2017 from Police Station Sadar, Shimla. He further deposed that during his service, he received monthly salary of Rs. 20,000/- after all the deductions. He deposed that the accused approached him for money, when he was facing some penalty for his having retained the Government accommodation. This witness admitted that the house of accused is situate near Kali Bari Temple, Shimla. While admitting the suggestion that he has not cited his wife as witness, he feigned ignorance that the cheque has been filled in two different inks. This witness self-stated that the cheque was filled in by the accused himself. This witness denied the suggestion that he has misused the cheque.

If the entire statement made by complainant is read in its entirety, it clearly proves that the complainant has successfully proved that he advanced Rs.1,50,000 to the accused on his request, who with a view to discharge his liability, issued cheque Ext. CW-1/A, which on its presentation to the bank concerned, was dishonoured.

Accused, while appearing as DW-1, stated that he was not acquainted with the complainant and he never approached complainant for borrowing money. Though he admitted his signatures on cheque Ext. CW-1/A but claimed that he did not fill in contents. He further deposed that the cheque was given by him to Rajan, who had to present the same as security, as he had taken Rs.25,000/ - from someone. He denied receipt of legal notice from the complainant. In his cross-examination, he admitted the suggestion that in the year 2009, he was serving in ARTRAC, Shimla, but feigned ignorance about the fact that the complainant was serving in Police. This witness also denied that he is acquainted with the complainant since 2009 and having cordial relations with him. He also denied that on 6.2.2015, complainant has withdrawn Rs. 60,000 and remaining amount of Rs.90,000/- was lying at the house of complainant.

Careful perusal of the statement of the accused clearly reveals that he has not denied issuance of cheque and his signatures thereupon, rather, his simple defence is that the cheque in question was issued to one Rajan, his son-in-law, who was to further hand over the cheque to someone from whom he had taken Rs. 25,000/-. There is no explanation that in case cheque was issued to Rajan, how it reached complainant. It is not the case of the accused that Rajan, had borrowed Rs. 25,000/- from the complainant and he had handed over cheque to the complainant as security.

Accordingly, the present revision petition is dismissed being devoid of any merit. Impugned judgments/order of conviction and sentence passed by learned Courts below are upheld. The petitioner is directed to surrender before the learned trial Court forthwith to serve the sentence as awarded by the learned trial Court, if not already served. Pending applications, if any, also stand disposed of. Bail bonds, if any, furnished by the accused are cancelled.