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TMI Blog2022 (4) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... his debt or other liability towards the complainant. Accused cannot escape by saying that he issued a blank cheque in favour of the complainant and the complainant put the figures therein to implicate the accused in a false case. The Apex Court in BIR SINGH VERSUS MUKESH KUMAR [ 2019 (2) TMI 547 - SUPREME COURT ] succinctly held that once a person signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque has been issued for payment of a debt or in discharge of a liability. It has also been held by the apex court by the said judgment that even if a blank cheuqe 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. The cross examination of the complainant [PW-1] would demonstrate that accused did not deny execution of the impugned cheque. He did not also deny his transaction with the complainant. Rather during his examination under Section 313 Cr.P.C he stated that he had a business transaction with the complainant for which he issued a blank cheque which was misused by the complainant. Accused d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No.2 herein] allegedly borrowed a sum of ₹ 1 lakh on 10.08.2014 from the petitioner on condition that he would refund the money within next 6 months. 2 weeks thereafter, accused borrowed another loan of same amount from the petitioner on 24.08.2014 assuring the petitioner that he would return the money within 6 months. Despite repeated request, accused did not return the money to the petitioner even after expiry of the stipulated period. Finally the petitioner approached the accused [Respondent No.2] for refund of the entire loan of ₹ 2 lakhs which was taken by the petitioner from him in two spells. Pursuant to his request, accused issued 2 cheques bearing No.509068 and 509069 on State Bank of India, Udaipur branch. Among those cheques, petitioner presented cheque No.509069 on 12.03.2018 in United Bank of India, Killa branch where he had savings bank account No.1198010077109 for encashment. Thereafter, on 19.03.2015 the branch manager of Killa branch of the UBI returned the cheque to the petitioner due to insufficiency of fund in account No.20150115769 of the accused in SBI, Udaipur branch. In usual course, petitioner informed the accused that cheque No.509069 issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of the accused. On appreciation of evidence, the learned trial judge held that complainant was able to prove that those cheques were dishonoured due to insufficient fund in the account of the accused. Despite such finding, learned trial judge ultimately answered the issue in the negative against the complainant. His observation is as under: Thus, therefore, considering all these aspects, I find the complainant is able to prove the fact that the two cheques were dishonoured due to insufficient fund in the account of the accused. Accordingly, point No.(ii) is decided in the negative and against the complainant but in favour of the accused. [5] The third issue was whether complainant petitioner issued demand notice to the accused and whether despite receiving demand notice accused failed to refund the money to the complainant. Having appreciated the entire evidence on record, the learned trial judge held that complainant petitioner succeeded in proving that despite receiving demand notice accused did not refund the money to the petitioner. [6] Thus it would appear from the judgment of the learned trial judge that he was of the view that complainant petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re made in the order in which they appear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course-that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. S.139. Presumption in favor of holder : It shall be presumed, 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. 11. The gravamen of the complainant's case is that on 10.08.2014 the accused borrowed Rs. One lac from him for urgent necessity on condition to repay within six months. Thereafter, on 24.08.2014 the accused again borrowed Rs. One lac from him for urgent necessity on condition to repay it within six month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PP for state respondent No.1. [9] It is contended by Mr.Acharjee, counsel appearing for the complainant petitioner that once it is admitted by the accused that he signed the cheques which were subsequently dishonoured, presumption of a legally enforceable debt or liability arises and the accused can be held guilty under Section 138 NI Act unless it is rebutted by the accused by adducing evidence. To buttress his contention, counsel has relied on the decision of the Apex court in the case of RANGAPPA VS. SRI MOHAN reported in (2010) 11 SCC 441 wherein the Apex Court in para 30 has held as under: 30. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, insofar as it was not clear whether the accused had asked for a hand loan to meet the construction-related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be establish by the accused in order to rebut the presumption in different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him. Whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Criminal Procedure is required to be sparingly exercised, but, according to me, if the decisions of the Courts below appear to be perverse or untenable in law or in grossly erroneous or glaringly unreasonable or where the decision is based on no materials or where the materials facts are wholly ignored or judicial discretion vested with the Courts are exercised arbitrarily or capriciously then, this Court will definitely exercise its jurisdiction vested upon it under Section 397 to 401 of the CrPC. [14] Mr. Lodh, learned counsel has contended that even if it appears to the court that on the basis of the evidence on record two views are equally possible, the view which is favourable to the accused has to be taken by the court. In support of his contention counsel has relied on the judgment dated 29.05.2020 of this court in Suman Saha vs. Parswhanath Modak [Crl. A No. 24/2017] wherein this court in paragraph 14 of the judgment held has under: [14] The findings in respect of conforming to the requirement is not under challenge. Hence, the solitary question as framed above is the foundation of challenging the order of acquittal dated 14.06.2017. This court finds t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the complainant put the figures in the cheque and subsequently prosecuted him. The learned Sessions Judge after examining the entire record held that even though the cheques were admittedly signed by the accused, the blank spaces pertaining to amount was filled up in a different hand writing and the complainant in the course of trial could not offer any explanation about different hand writing appearing in the cheque so as to remove doubts from the mind of the court. Learned Sessions Judge also held that even though the signatures appearing on the cheques was admitted by the accused, he denied to have issued those cheques for any existing debt. Learned Sessions Judge also held that alleged monetary transaction between the parties to the lis was also doubtful because it was unlikely that complainant would make payment of such huge amount without keeping proof of payment. Learned Sessions Judge therefore, disbelieved the prosecution case and upheld the order of acquittal. [17] Question which falls for consideration of the court is whether an accused charged under Section 138 NI Act can be let off on such grounds after it is proved that cheques were issued by him and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 35. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. It is no case of the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elieve that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist... [22] In the land mark decision in Hiten P.Dalal Vs. Bratindranath Bannerjee reported in (2001) 6 SCC 16 the apex court held that the presumptions to be drawn by the court under Sections 138 and 139 NI Act are presumptions of law which cast evidential burden on the accused to disprove the presumption. Observations of the Apex Court are as under: 22. Because both Sections 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, as noted in State of Madras vs. A. Vaidyanatha Iyer, AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (ibid at p 65, para 14). Such a presumption is a presumption of law, as distinguished from a presumption of fact whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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