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TMI Blog2018 (6) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... is not a substantial things, in the case where post dated cheques are issued. Issuing of disputed cheque and the amount mentioned in it, is admitted by the revisionist. He cannot be given any benefit of the fact that the date mentioned in this cheque was filled up by any other person. Revision dismissed. - Criminal Revision No. 1414 of 2018 - - - Dated:- 31-5-2018 - Hon'ble Ram Surat Ram ( Maurya ), J. For the Applicant : Mohit Singh, Ravi Kumar Singh For the Opposite Party : G.A. ORDER 1. Heard Sri Pratik Kumar, holding brief of Sri Ravi Kumar Singh, for the revisionist. 2. This criminal revision has been filed from the judgment and order passed by Additional Session's Judge, Court No. 2, Ghaziabad dated 21.04.2018, dismissing Criminal Appeal No. 128 of 2017, filed by the revisionist, from his conviction and sentence passed by Fast Track Court/Additional Court No. 1, Ghaziabad dated 01.09.2017, in Complaint Case No. 618 of 2016 Pradeep Yadav Vs. Ravindra Yadav, under Section 138, Negotiable Instrument Act, 1881, PS Kavi Nagar, district Ghaziabad, convicting the revisionist under Section 138 of the Act and awarding sentence of one year simple imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to be dismissed. 5. In order to prove charges, Pradeep Yadav examined himself as PW-1 and examined the witnesses Vikram Singh Chauhan (PW-2) and Smt. Kanti Yadav (PW-3). Statement of the revisionist was recorded under Section 313 Cr.P.C. on 29.03.2017, in which he had admitted his signature on the disputed cheque but again pleaded that disputed cheque was given to Pradeep Yadav, by way of security, as on his guarantee, Pradeep Yadav gave a cheque of ₹ 2,00,000/- to Akhtar and another cheque of ₹ 2,20,000/- to Azad Saifi. But these cheques were canceled by Pradeep Yadav and could not be encashed by Akhtar and Azad Saifi as such the revisionist had no liability to pay the amount of disputed cheque to Pradeep Yadav. He also pleaded that date in disputed cheque was fabricated. He filed some documentary evidence to prove that he had given reply to the notice of the complainant and also notice to return his disputed cheque. The parties filed their written arguments also. 6. Trial Court, after hearing the parties by its judgment dated 01.09.2017 held that from the evidence of Pradeep Yadav it is proved that he had advanced ₹ 4,20,000/- to Ravidnra Yadav, from ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Dattatraya G. Hegde, AIR 2008 SC 1325, in which the accused gave four blank cheques duly signed to his partner for speedy payment in connection with business transactions. However, business transaction was canceled. On dishonour of cheque, Supreme Court held that the accused had no liability as such he could not be prosecuted under Section 138 of the Act. Sudhir Kumar Bhalla Vs. Jagdish Chandra, AIR 2008 SC 2407, in which cheque was fabricated and material alteration was made in figures. Supreme Court held that prosecution cannot be made on its basis. Rev. Mother Marykutty Vs. Rani C. Kottaram, (2013) 1 SCC 327 and Vijay Vs. Laxman, (2013) 3 SCC 86, in which it has been held that presumption and Section 118 and 139 of the Act, is rebuttable presumption. 8. I have considered the arguments of the counsel for the parties and examined the record. Relevant provisions of the Act, are quoted below:- Section 118. Presumptions as to negotiable instruments.--Until the contrary is proved, the following presumptions shall be made: (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the stop-payment instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. 10. In Goaplast (P) Ltd. v. Chico Ursula D'Souza, (2003) 3 SCC 232, has held that the penal provisions contained in Sections 138 to 142 of the Act are intended to ensure that obligations undertaken by issuing cheques as a mode of payment are honoured. A post-dated cheque will lose its credibility and acceptability if its payment can be stopped routinely. A cheque is a well-recognized mode of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchase order had been cancelled and cheque issued towards advance payment for the purchase order was dishonoured. In that case, it was found that the cheque had not been issued for discharge of liability but as advance for the purchase order which was cancelled. Keeping in mind this fine but real distinction, the said judgment cannot be applied to a case of present nature where the cheque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment of installments was also described as security in the loan agreement. 13. In larger Bench judgment of Supreme Court Rangappa' s case (supra), it has been held that once cheque was issued, then by virtue of Section 139 the court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. This is a rebuttable presumption. The accused can thus show that there was no existing debt or liability at the time of presentation of cheque for encashment. In present case, the revisionist took plea that disputed cheque was undated and given by way of security at the time of the advancing loan of ₹ 2,00,000/- to Akhtar an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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