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TMI Blog2019 (2) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... wards repayment of a "friendly loan" of Rs. 15 lakhs advanced by the appellant-complainant to the respondentaccused. 4. On 11-4-2012, the appellant-complainant deposited the said cheque in his bank, but the cheque was returned unpaid with the endorsement "Insufficient Fund". 5. The appellant-complainant has alleged that, on the assurance of the respondent-accused, that there would be sufficient funds in his bank account to cover the amount of the cheque, the appellant-complainant again presented the cheque to his bank on 23-5-2012, but it was again returned unpaid with the remark "Insufficient Fund". 6. On 15-6-2012, the appellant-complainant issued a legal notice to the respondent-accused through his lawyer, calling upon the respondent-accused to pay the cheque amount. The said notice, sent by registered post, was according to the appellantcomplainant, duly served on the respondent-accused. The respondent-accused, however, did not reply to the notice. Nor did he pay the cheque amount to the appellant-complainant. 7. The appellant-complainant filed a Criminal Complaint against the respondent-accused, being Case No.106 of 2012 before the Judicial Magistrate 1st Class, Palwal, un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. The penal provision of Section 138 of the Negotiable Instruments Act is intended to be a deterrent to callous issuance of negotiable instruments such as cheques without serious intention to honour the promise implicit in the issuance of the same. 10. Having regard to the object of Section 138 of the Negotiable Instruments Act, a prosecution based on a second or successive default in payment of the cheque amount is not impermissible simply because no statutory notice had been issued after the first default and no proceeding for prosecution had been initiated. As held by this Court in MSR Leathers vs. S. Palaniappan & Anr (2013) 1 SCC 177, there is no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second time or successive times. 11. By a judgment and order dated 9-2-2015, the Judicial Magistrate I Class, Palwal convicted the respondent-accused under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of one year and further directed him to pay compensation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the blank cheques given to him for payment of income tax for depositing the same in the Treasury. In order to support his case, the accusedpetitioner took a risk by stepping himself into the witness box and offered himself for crossexamination. He asserted in his cross-examination that the tax return was deposited in cash and the complainant used to take cash from him. His version was also supported by one Praveen Kumar, DW2. From the abovenoted discussions, it is clear that the parties were in fiduciary relationship and heavy burden was on the complainant to prove that he had advanced a loan of Rs. 15,00,000/- to his client without obtaining any writing and that he has not misused any blank cheque of his client. Such loan was not shown in the income tax return of the complainant. For the reasons mentioned above, the case of the complainant becomes highly doubtful and is not beyond all reasonable doubts. Therefore, no presumption under Section 138 of the Negotiable Instruments Act, 1881 can be raised. Both the courts below erred in holding the accused-petitioner guilty for the commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not for the Revisional Court to re-analyse and re-interpret the evidence on record. 20. As held by this Court in Southern Sales and Services and Others vs. Sauermilch Design and Handels GMBH (2008) 14 SCC 457, it is a well established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is therefore, in the negative. 21. In passing the impugned judgment and order dated 21-11- 2017, the High Court mis-construed Section 139 of Negotiable Instruments Act, which mandates that unless the contrary is proved, it is to be presumed 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. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque. 22. In Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16, this Court hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found that the cheque in question was towards advance for purchase of carpets, which were in fact not sold by the payee of the cheque to the drawer, as proved from the deposition of an official of the Sales Tax Department, who stated that the payee had admitted that he had not sold the carpets. 27. In K.N. Beena vs. Muniyappan and Another (2001) 8 SCC 458, this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishna Janardhan Bhat vs. Dattatraya G. Hegde (2008) 4 SCC 54, cited on behalf of the respondent-accused, this Court reaffirmed that Section 139 of the Act raises a presumption that a cheque duly drawn was towards a debt or liability. However, keeping in view the peculiar facts and circumstances of the case, this Court was of the opinion that the courts below had approached the case from a wholly different angle by wrong application of legal principles. 34. It is well settled that a judgment is a precedent for the issue of law which is raised and decided. It is the ratio decidendi of the case which operates as a binding precedent. As observed by this Court in State of Punjab & Ors. vs. Surinder Kumar & Ors. (1992) 1 SCC 489, what is binding on all courts is what the Supreme Court says under Article 141 of the Constitution, which is declaration of the law and not what it does under Article 142 to do complete justice. 35. Furthermore, to quote V. Sudhish Pai from his book "Constitutional Supremacy - A Revisit":- "Judgments and observations in judgments are not to be read as Euclid's theorems or as provisions of statute. Judicial utterances/pronouncements are in the setting of the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cogent evidence to show that the cheque was not issued in discharge of a debt. 41. 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 appellantcomplainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them. 42. 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 acq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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