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TMI Blog2019 (10) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... SANDEEP SHARMA, J. (ORAL) Instant Criminal Revision petition filed under Section 397 read with Section 482 of the Code of Criminal Procedure, is directed against the judgment, dated 6.7.2018, passed by learned Additional Sessions Judge(III), Kangra at Dharamshala, H.P., in Criminal Appeal No. 477/2013, affirming the judgment of conviction and order of sentence dated 15.3.2012 passed by learned Judicial Magistrate, 1st Class, Baijnath, District Kangra, H.P., in criminal complaint No. 41III/ 10, whereby learned trial Court while holding petitioneraccused guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay compensation of ₹ 75,000/to the complainant. 2. Precisely, the facts of the case as emerge from the record are that the respondent (hereinafter referred to as the complainant ) instituted a complaint under Section 138 of the Negotiable Instrument Act ( for short Act ) in the Court of learned Judicial Magistrate, 1st Class, Baijnath, District Kangra, H.P., allegin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Adarsh K. Vashishta, learned counsel representing the petitioner states that since accused is not coming forward to impart instructions, this Court may decide the present petition on its own merit. 7. Having heard learned counsel representing the parties and perused the material available on record, this Court finds no force in the arguments of learned counsel representing the petitioner that Courts below while holding accused guilty of having committed the offence punishable under Section 138 of the Act have not appreciated the evidence in its right perspective, rather this Court finds that complainant has successfully proved on record that cheque Ex.CW1/A, dated 10.03.2010 was issued by the accused towards discharge of his lawful liability. It stands duly proved on record that cheque in question was dishonoured on account of insufficient funds in the account of the accused, who despite having received statutory demand notice failed to make the payment, compelling the complainant to institute the complaint under Section 138 of the Act. 8. CW3, Veena Langa (complainant) while deposing before the Court below has successfully proved the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. CW1, Dalip Kumar, Branch Manager, State Bank of Patiala, Paprola, also proved on record cheque No.309879 and stated that same was issued by PNB, Baijnath. He stated that cheque issued by PNB was deposited with their bank by the complainant on 20.4.2010. The said cheque was sent for collection to PNB, Baijnath, but it was returned with memo having remarks insufficient funds in the account of the holder. 11. DW1, Sunny deposed that he is care taker of DTIL Hospital since 2005 and rent of the hospital is being paid by the accused regularly, but receipt of the said amount was not issued by the complainant till date. This witness in his cross-examination, expressed his ignorance with regard to the amount of rent, if any, paid by the accused, however he volunteered that the receipt obtained from the complainant was handed over to the accused. 12. Close security of the evidence led on record by the respective parties visavis stand taken by the accused while getting his statement recorded under Section 313 Cr.P.C., clearly reveals that there is no dispute, if any, inter se parties with regard to leasing out of the property in question and amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the competent Court of law, which she admittedly withdrew after receipt of aforesaid amount. 14. Precisely, the arguments of learned counsel representing the accused is that since cheque Ex.CW1/A was not returned to the accused by the complainant despite her having received sum of ₹ 35,800/, it can be safely presumed that cheque in question, which is subject matter of the present case was also issued as a security cheque, but same was subsequently misused. 15. For the sake of arguments, if it is presumed that cheque in question was issued as a security cheque, but there is no evidence led on record by the accused that rent in cash was paid to the complainant qua the period in question when cheque Ex.CW1/A was issued in favour of the complainant, aforesaid defence taken by the accused cannot be accepted being probable. 16. Under Section 139 of the Act there is presumption in favour of the holder of the cheque that 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 or any debt or other liability meaning thereby there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused/drawer of cheque in question neither raises a probable defence nor is able to contest existence of a legally enforceable debt or liability, statutory presumption under S.139 of the Act regarding commission of the offence comes into play. It would be apt to reproduce following paras of judgment (supra) herein below: 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 138 can 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be extremely heavy. 20. Recently, the Hon'ble Apex Court in Basalingappa vs. Mudibasappa, Cr. Appeal No. 636 of 2019 decided on 4.9.2019, having taken note of its earlier judgments has summarized the principles in the following manner: 23. 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. 27 (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 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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