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TMI Blog2022 (2) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... fficient inasmuch as, on a specific query put by the Court to the counsel for the petitioner, as to whether the petitioner is ready to pay the entire amount, learned counsel for the petitioner has answered the same in the negative. The present Criminal Revision has no merits and is accordingly, dismissed. - CRR-61-2022 (O&M) - - - Dated:- 11-1-2022 - Hon'ble Mr. Justice Vikas Bahl For the Petitioner : Mr. Inderjit Sharma, Advocate, Mr. Sukhbeer Singh, AAG, Punjab ORDER VIKAS BAHL, J. (ORAL) Challenge in the present Criminal Revision is to the judgment dated 07.09.2017 passed by the Chief Judicial Magistrate, Gurdaspur, vide which the petitioner had been convicted under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as the Act of 1881 ) and had been sentenced as under:- Name of the convict Under Section R.I. Fine In default of payment of fine Kuldeep Singh 138 of Negotiable Instruments Act Two (2) years ₹ 10,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque Ex.C2 and under Section 139 of the Act of 1881, there is a presumption in favour of the holder of the cheque and the same was received for the discharge of the whole or in part of any debt or liability unless the contrary had to be proved by the petitioner. The argument to the effect that the present cheque was a security cheque was rejected by relying upon the judgment of the Delhi High Court in case titled as M/s Constellation Enterprises Pvt. Ltd. Anr. Vs. P.E.C. Limited , reported as 2006(127) DLT 733 . It was further observed that the petitioner had failed to repay the loan installments and, thus, it was open to the complainant to encash the cheque and on the dishonour of the said cheque, to institute proceedings under Section 138 of the Act of 1881. It was also observed that the legal notice had been duly issued and the complaint had been filed within a period prescribed. Learned counsel for the petitioner has submitted that in the present case, no agreement had been produced on record by the complainant-bank. It is further submitted that installment in the present case was ₹ 37,836/- and in case, the petitioner had failed to make the said payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alal vs. Bratindranath Banerjee, this Court held that both Section 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in State of Madras vs. Vaidyanatha Iyer, AIR 1958 Supreme Court 61, this Court held that it was obligatory on the Court to raise this presumption. 23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact as held in Hiten P. Dalal (supra). xxx xxx xxx 36. The proposition of law which emerges from the judgments referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entered into between the Petitioner and Respondent/ Complainant. The security cheque is not only a deterrent for the drawer against dishonoring his financial commitment but can also be legally and validly utilized towards the discharging of the liability of the Drawer. It cannot by any stretch be argued that a security cheque is not handed over or issued in pursuance of any undischarged liability. To hold so would defeat the whole purpose of a security cheque. In the considered opinion of the Court, a security cheque is an acknowledgment of liability on the part of the drawer that the cheque holder may use the security cheque as an alternate mode of discharging his/its liability. Thus the argument of the learned counsel for the petitioner that on dishonouring of a security cheque no offence punishable under section 138 of the Negotiable Instruments Act is made out. A perusal of the above judgment would show that it has been observed that even if a cheque is a security cheque, the same is an integral part of the commercial process and the same acts as a deterrent for the drawer against dishonouring his financial commitment and can also be used towards discharging the liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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