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TMI Blog2021 (6) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... tention that there is no receipt for ₹ 50,000/- also does not take away the initial burden on the petitioner. Two cheques for ₹ 6,50,000/- and ₹ 8,00,000/- dated 15.12.2010 and 20.12.2010 respectively have been presented and money has been withdrawn. A receipt for ₹ 15,00,000/- has been given. In the absence of any explanation at all as to why the receipt for ₹ 15,00,000/- was given it cannot be said that the petitioner has rebutted the initial presumption which is raised against him under Section 139 of the N.I. Act. The case of the petitioner that bearer cheques were given to him and that he withdrew the money and gave it back to the complainant also cannot be accepted. The petitioner has not been able to rebut the presumption under Section 139 of the N.I. Act. He has not denied his signatures in the cheque. He does not deny the fact that the receipt dated 18.12.2010 was given by him which acknowledges a sum of ₹ 15,00,000/- taken as loan. As stated above, the fact that the receipt does not show as to from whom the loan of ₹ 15,00,000/- was taken is immaterial and inconsequential for the reason that it is the complainant who has filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin few days and he needs a loan of ₹ 15,00,000/-. It is stated in the complaint that the accused/petitioner herein had shown the complainant some letters in this regard. b) It is stated in the complaint that the accused/petitioner herein told the complainant that once he gets the dealership he would be able to repay the loan. It is stated that believing the representation the complainant advanced a loan of ₹ 15 Lakhs to the petitioner herein in the following manner: i. ₹ 50,000/- was paid by way of cash. ii. ₹ 6,50,000/- was paid by cheque bearing No.963019 dated 15.12.2010 drawn on UCO Bank. iii. ₹ 8,00,000/- was paid by cheque bearing No.967981 dated 20.12.2010 drawn on UCO Bank. The said cheques were duly encashed on presentation. c) It is stated that in view of his liability to repay the loan amount, the accused/petitioner herein gave one cheque bearing number 768427 dated 31.12.2010 for an amount of Rs.l5,00,000/- drawn on UCO bank in favour of the complainant. It is stated that the accused/petitioner herein also issued one receipt dated 18.12.2020 acknowledging the receipt of ₹ 15,00,000/- as loan. It is stated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed me to arrange a loan for me against this cheque through someone else. I had only filled the amount in words and figures on the cheque as well as signed the cheque and other particulars were left blank. However, complainant had not paid me ₹ 6.50 Lacs for which I had supplied him computer and accessories. On the other hand, he has misused the said cheque which he procured from me as a security for getting the loan. However, till date, I have not received any loan against this cheque. The complainant had procured the pronote also from me for getting me the loan and the said pronote is not addressed to any particular person. According to the petitioner, he was to procure material for assembling the computers for supply to the complainant and the cheque was given as a security for the loan which was to be arranged by the complainant from other parties. The petitioner has contended that cheque No. 963019 dated 15.12.2010 for an amount of ₹ 6,50,000/- and cheque No. 967981 dated 20.12.2020 for an amount of ₹ 8,00,000/- were bearer cheques which were given to him by the complainant in order to withdraw money from his own bank account as the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wife of the complainant in the presence of the said Vijay Bhadana whereas the other sum of ₹ 8,00,000/- was handed over by him to the complainant himself. The learned Metropolitan Magistrate was of the opinion that the said Vijay Bhadana would have been the best witness to prove the innocence of the accused/petitioner herein and the said witness has not been produced by the accused/petitioner herein. The learned Metropolitan Magistrate therefore drew adverse inference against the accused/petitioner herein. The learned Metropolitan Magistrate also rejected the contention of the petitioner that there is no reference of loan in the Income Tax returns of the complainant and that the amount of loan is not legally recoverable as the same was advanced in violation of Section 269 SS of Income Tax Act, 1961 (hereinafter referred to as the IT Act'). The learned Metropolitan Magistrate held that violation of Section 269 SS of the IT Act, if any, at best could be an offence under Section 271 D of IT Act and it does not tantamount to making the loan amount as legally not recoverable. The learned Metropolitan Magistrate, therefore, vide order dated 28.03.2016 convicted the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... politan Magistrate that failure on the part of the accused/petitioner herein to examine Vijay Bhadana does not substantiate the case of the accused. The learned Additional Sessions Judge held that the case of the accused that the cheques were encashed and the amount was returned back to the complainant cannot be believed. The learned Additional Sessions Judge therefore confirmed the order of the Metropolitan Magistrate and enhanced the compensation to ₹ 20 Lakhs. i) It is this order which is under challenge in the instant revision petition. 3. Heard Mr. Dheeraj Malhotra, learned counsel for the petitioner, Mr. Shakeel Sharwar Wani, learned counsel for the complainant/respondent No.2 and Mr. Hirein Sharma, learned APP for the State and perused the material on record. 4. Mr. Dheeraj Malhotra, learned counsel for the petitioner states that two bearer cheques amounted only to ₹ 14,50,000/- and there is nothing to show that the complainant gave ₹ 50,000/- to the petitioner herein. He states that the receipt does not mention as to who has given the loan and for what purpose and it also does not mention the date by which the so-called loan was to be repaid. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner also contends that the complainant and Vijay Bhadana are co-accused in many other cases and therefore the petitioner did not examine Vijay Bhadana. He further states that the bank statements of the complainant shows that the complainant never had a closing balance of more than ₹ 2,10,000/- during last three years until the issuance of bearer cheques. He states that on 15.12.2010, the complainant deposited ₹ 5,98,000/- in his bank account just prior to encashment of bearer cheque, bearing number 963019, for an amount of ₹ 6,50,000/-, by the petitioner herein. He states that no common man with reasonable prudence would first deposit cash of ₹ 5,98,000/- and thereafter issue a bearer cheque for withdrawal of cash, on the same day to be given as loan. It is further argued by the learned counsel for the petitioner that the so-called transaction is contrary to Section 269 SS of the IT Act and therefore is not legally enforceable debt. He further stated that the complainant has not filed any civil suit for recovery of the alleged loan amount. The learned counsel for the petitioner contends that the presumption under Section 139 of the N.I. Act is rebutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le unless the view taken by the courts below is perverse and contrary to law. In State v. Manimaran, reported as (2019) 13 SCC 670, the Supreme Court observed as under: 16. As held in State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452 : 1999 SCC (Cri) 275], ordinarily it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as by the Sessions Court in appeal. When the courts below recorded the concurrent findings of fact, in our view, the High Court was not right in interfering with the concurrent findings of fact arrived at by the courts below and the impugned order cannot be sustained. (emphasis supplied) In State of Haryana v. Rajmal, reported as (2011) 14 SCC 326 , the Supreme Court observed as under: 14. In State of A.P. v. Pituhuk Sreeinvanasa Rao [(2000) 9 SCC 537 : 2001 SCC (Cri) 642] this Court held that the exercise of the revisional jurisdiction of the High Court in upsetting the concurrent finding of the facts cannot be accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Sessions Judge, while confirming the conviction of the respondent. In this view of the matter, the impugned judgment of the High Court is wholly unsustainable in law and we, accordingly, set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence. (emphasis supplied) 7. The acknowledgement receipt (EX.CW-1/A) dated 18.12.2010 states that the petitioner herein has taken a loan of ₹ 15,00,000/- and in lieu of the loan he is issuing cheque No.768427. The acknowledgment receipt is signed by the petitioner. The fact that there are no witnesses and the fact that it does not state as to from whom the loan is being taken does not persuade this Court to disbelieve the document. This document has been produced by the complainant. The cheque No. 768427 is in the name of the complainant and is signed by the petitioner herein. The complainant deposited the said cheque and it was returned with endorsement Insufficient Funds . The receipt along with the cheque m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner alone will not rebut the presumption. The stand of the Courts below, in disbelieving the statement of the accused/petitioner herein, does not require any interference because it cannot be said that they are perverse. The second contention raised by the petitioner that only two cheques were given for an amount of ₹ 14,50,00/- does not correspond to the receipt of ₹ 15,00,000/- and the contention that there is no receipt for ₹ 50,000/- also does not take away the initial burden on the petitioner. Two cheques for ₹ 6,50,000/- and ₹ 8,00,000/- dated 15.12.2010 and 20.12.2010 respectively have been presented and money has been withdrawn. A receipt for ₹ 15,00,000/- has been given. In the absence of any explanation at all as to why the receipt for ₹ 15,00,000/- was given it cannot be said that the petitioner has rebutted the initial presumption which is raised against him under Section 139 of the N.I. Act. The case of the petitioner that bearer cheques were given to him and that he withdrew the money and gave it back to the complainant also cannot be accepted. The petitioner has stated that he was accompanied by one Vijay Bhadana who has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requisite presumption. Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the appellant-accused to establish a probable defence so as to rebut such a presumption. ***** 17. On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasised that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under Sections 118 and 139 of the NI Act. This Court stated the principles in Kumar Exports [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] as follows : (SCC p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, therefore, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue. (emphasis supplied) 10. The petitioner has not been able to rebut the presumption under Section 139 of the N.I. Act. He has not denied his signatures in the cheque. He does not deny the fact that the receipt dated 18.12.2010 was given by him which acknowledges a sum of ₹ 15,00,000/- taken as loan. As stated above, the fact that the receipt does not show as to from whom the loan of ₹ 15,00,000/- was taken is immaterial and inconsequential for the reason that it is the complainant who has filed the receipt (CW-1/A) and cheque (CW-1/A1) which is in the name of the complainant and duly signed by the petitioner. The mere ipse dixit of the petitioner and the statement in defence under Section 313 Cr.P.C without any material does not rebut the presumption cast on the petitioner under Section 139 of the N.I. Act. Just by con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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