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TMI Blog2021 (7) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ttled that mere denial would not absolve the accused from the liability unless the statutory presumptions under the N.I Act is rebutted by the accused and the contrary is proved by adducing cogent evidence, direct or circumstantial - In Laxmi Dyechem Vrs. State of Gujarat and others [2012 (12) TMI 106 - SUPREME COURT] the Apex Court held that under Section 139 of N.I Act it has to be presumed that the cheque was issued in discharge of a debt or other liability but such presumption should be rebutted by adducing evidence. It is no case of the accused petitioner that she signed the impugned cheques or parted with those cheques under any threat or coercion - the statutory presumptions that the cheques were issued by her in discharge of her liability arises against her which she could not rebut by adducing evidence. Therefore, in so far as her conviction is concerned, there are no error in the concurrent findings of the Courts below. Award of sentence - HELD THAT:- The trial Court sentenced her to a fine of ₹ 15,00,000/- and in default to S.I for six months and in case No. N.I. 113/2008 the trial Court sentenced the accused respondent to fine of ₹ 20,00,000/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actor. The accused (present petitioner) was engaged in manufacturing bricks and the name of her company was Ayush Bricks Industries. The said accused (petitioner herein) agreed to supply bricks and bats to the complainant for carrying out its business and an agreement was executed between them for this purpose. Pursuant to such agreement, complainant paid money in advance to the accused for supply of bricks and bats within the stipulated period of time. The accused having failed to supply the materials within the stipulated period, time was extended by a separate agreement and post dated check was issued by the accused(petitioner herein) to secure the transaction. Since the accused could not supply the materials within the extended time as per the agreement, the complainant presented the said cheque of a sum of ₹ 15,00,000/- at UCO Bank, Agartala for its encashment on 30.04.2008. The cheque was bounced and as a result, the said bank returned the cheque to the complainant with a return memo on account of insufficiency of fund in the account of the accused. The complainant tried to contact the accused but there was no response from her side. Complainant then issued statutory de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to adduce evidence on her defence. Similarly, in case No. N.I 113 of 2008, during her examination under Section 313 Cr. P.C she stated that she made payment of a part of the cheque amount to the complainant during the pendency of the case. About the agreement she stated that she was not aware of the contents of those agreements. She also desired to adduce evidence on her defence. Eventually, she did not adduce any evidence on her defence. The trial Court after hearing the submissions of the counsel representing the parties delivered separate judgments in both the cases. In case No. N.I 107 of 2008 the accused was convicted and sentenced to a fine of ₹ 15,00,000/-(Fifteen lakhs) and in default to S.I for six months. It was ordered that fine money on realization be paid to the complainant as compensation. In case No. N.I 113 of 2008 she was sentenced to a fine of ₹ 20,00,000/-(Twenty lakhs) and in default of payment of fine to S.I for six months and it was directed that fine money on realization be paid to the complainant as compensation. [7] The complainant challenged the said judgment of the trial Court in appeal in the Court of the Sessions Judge in West Tripura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination, he stated that he could not say as to how ₹ 12 lakh was allowed to be drawn from said account as statement covering period 31.3.2008 to 27.11.2009 was showing that there was negative balance of ₹ 12,40,508/- in that account. Another bank employee namely Mr. Dilip Barman (PW.3) clarified that whenever there is insufficient fund or whenever there is any dispute relating to any cheque, same is returned with endorsement referred to drawer . From, the evidences of these two witnesses, it is established that there was no scope to honour those two cheques for sufficiency of fund as maximum limit of said account (perhaps CD account) was ₹ 10 lakh. Notice of dishounour of said cheque was duly sent to the accused vide Ext.7 8 within stipulated time which was delivered on 7.6.2008 and case was filed on 8.7.2008. 7) Similarly in NI 107/2008, the cheque dated 30.4.2008 for ₹ 15 lakh (Ext.4) was dishonoured on the ground of insufficiency of fund as evident from the intimation slip dated 2.5.2008 (Ext.5). Statutory notice (Ext.6) was duly sent on 15.5.2008 as per postal receipt marked as Ext.7. As per intimation of the postal authority (Ext.8), it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner presented the cheque at the bank for encashment on 30.04.2008 before the said extended period of the agreement for which accused respondent cannot be held liable under Section 138 N.I. Act. [9] In the course of arguments Mr. T. D. Majumder, learned Sr. advocate appearing for the petitioner along with Mr. B. Debnath, learned advocate argued that similar issue came up before the Apex Court in Indus Airways Pvt. Ltd. and Others Vrs. M/s. Magnum Aviation Pvt. Ltd. and another reported in (2014) 12 SCC 539 where post dated cheques of different amounts were issued by the accused purchaser as advance payment in respect of some purchase orders which eventually got dishonoured on presentation at the bank. The Apex Court allowed the appeal of the accused purchaser accepting the view that the explanation to Section 138 of the N.I Act makes it clear that the cheques shall be relatable to an enforceable liability or debt and as on the date of issuing of the cheque there was no existing liability in the sense that the title in the property had not passed on to the accused since the goods were not delivered. In the present case it is contended by the counsel of the petitioner tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel submits that even if it is assumed that accused petitioner issued the cheques as security, the provision of Section 138 N.I Act would be attracted because she neither disputed her liability nor informed the complainant that the complainant should not present such cheques at bank. Purpose of giving the securities is to ensure that such securities can be enforced when need arises and those are not mere pieces of paper. Learned counsel referred to paragraphs 21 and 22 of the judgment wherein the Bombay High Court having referred to various judgments of the Apex Court on the issue held as follows: 21. The expression secure , as per Black's Law Dictionary means to give security, to assure payment. As per Oxford dictionary security, inter alia, means thing deposited or hypothecated as pledge for fulfillment of undertaking or payment of loan to be forfeited in case of failure. Security is given, not as a piece of paper to be retained by the creditor but to be enforced when the debtor fails to pay the amount. In this case the subject cheque was given to assure the payment of the goods taken on credit by the accused and once payment was not forthcoming, nor the bank guarante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties had taken this Court to the evidence recorded during trial. [14] In Crl. Rev. P. No.06 of 2021 Sekhar Ch. Podder, constituted attorney of the complainant respondent testified at the trial Court as PW-1. He submitted the cheque bearing No.663933 dated 30.04.2008 of a sum of ₹ 15,00,000/- drawn on SBI, Kunjaban branch which was issued by the accused petitioner in favour of the complainant respondent. Said cheque was marked as Exbt-4 at the trial. The bank s slip/memo dated 02.05.2008 returning the said cheque for insufficiency of the fund in the account of the accused was also produced at the trial on behalf of the complainant and it was taken into evidence and marked as Exbt.5. In his cross examination the PW categorically asserted that the accused petitioner issued two post dated cheques aggregating to ₹ 35,00,000/-. As noted, the petitioner has produced the original cheque and also the bank slip dated 02.05.2008 returning the said cheque for insufficiency of the fund in the account of the accused respondent in original. From a perusal of said cheque (Exbt.4) it appears that the cheque was dated 30.4.2008 which was deposited by the petitioner at his bank and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumption that the cheque had been issued for payment of a debt or in discharge of a liability. It had also been held by the Apex Court by the said judgment that even if a blank cheque is voluntarily presented to the payee, towards some payment, the payee may fill up the amount and other particulars which itself would not invalidate the cheque. Observation of the Apex Court in this regard is as under: 32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Supreme Court is as under: 25. 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 is 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. 26. 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 payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ume (rebuttable), (2) shall presume (rebuttable) and (3) conclusive presumptions (irrebuttable). The term presumption is used to designate an inference, affirmative or dis-affirmative of the existence of a fact, conveniently called the presumed fact drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means taking as true without examination or proof . 16. Section 4 of the Evidence Act inter-alia defines the words may presume and shall presume as follows: - 4. may presume' - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it. shall presume' - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved: **** ***** ****** ***** In the former case the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Renewable Energy Development Agency Limited; reported in (2016) 10 SCC 458 and clarified that presumption under Section 138 N.I. Act being statutory in nature, has to be rebutted by the accused by adducing some evidence. In the said judgment the Apex Court further clarified that some statement of the accused itself could not be sufficient to rebut such presumption. Observation of the Apex Court is as under: 17. In Rangappa v. Sri Mohan , this Court held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption. A post dated cheque is a well recognized mode of payment [25] It is no case of the accused petitioner that she signed the impugned cheques or parted with those cheques under any threat or coercion. In view of the ratio decided by the Apex Court in the case of Bir Singh (supra) her plea that she issued blank cheques a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,00,000/- to the complainant. Admittedly, the complainant had taken post dated cheques of ₹ 35,00,000/- from her in anticipation that she might fail to perform the terms of 3rd agreement executed between them. [28] Considering the amount of liability of the accused towards the complainant respondent and considering the peculiar facts and circumstances of the case, I find it appropriate to reduce the fine imposed on the accused by way of sentence to ₹ 24,00,000/-. Consequently, the sentence imposed on the petitioner by the trial Court and affirmed by the appellate Court is modified as under: Accused petitioner Smti Sangita Sharma (Dhyani) is sentenced to fine of ₹ 24,00,000/-(twenty four lakhs) and in default of payment of fine she will suffer S.I for six months. Fine money, on realisation, be paid to the complainant respondent in full. Accused petitioner is directed to deposit the said amount of fine in Court within a period of two months from today failing which the trial Court shall takes steps in accordance with law to make her suffer the default sentence. [29] In terms of the above, both the criminal revision petitions being Crl. Rev. P. No.06/2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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