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TMI Blog2022 (4) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... he could have lodged the complaint with the police. One carbon copy of the letter stated to be addressed to the SSK bank dated 5.6.2006 is produced along with written statement. But no evidence is adduced calling upon any officials of the bank to prove his contention and to show that he has intimated the bank about theft of cheques. To whom he was giving signed blank cheques at Bhagyanagar, why they asked him blank cheques, what happened to his other cheques, mentioned in reply? No explanation is forthcoming. No bank statement is produced to show that he had any move in his bank on the date he lost the cheque, no persons were examined to prove it. If at all he has lost the cheque in the year 2006 itself, then how one cheque came in possession of this said Narayansa is also not forthcoming; why he has misused only one cheque if there are six cheques is also not forthcoming. The Hon'ble Supreme Court in a decision in TRIYAMBAK S. HEGDE VERSUS SRIPAD [ 2021 (9) TMI 1159 - SUPREME COURT] has referred the decision of KAUSHALYA DEVI MASSAND VERSUS ROOPKISHORE KHORE [ 2011 (3) TMI 1491 - SUPREME COURT] and has held that it is not like IPC cases wherein the sentence of imprisonmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial Court, the complainant himself got examined as PW.1 and also got examined Manager of the Bank as PW.2. Eight documents were marked as Exs.P.1 to P.8. The accused has not adduced any defence evidence nor any documents were marked on his behalf. After hearing the arguments, the learned JMFC convicted the accused for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 and sentenced the accused to undergo simple imprisonment for six months and ordered ₹ 5,00,000/- to be paid as compensation under Section 357(3) of Cr.P.C. and in default to pay the compensation amount, to undergo simple imprisonment for a period of three months. Aggrieved by the same, the accused preferred appeal before the learned District and Sessions Judge, wherein the learned Sessions Judge after hearing the parties set aside the said judgment of conviction and order of sentence by the impugned order, which is now assailed in this revision. 5. Heard Shri N.J.Appannanavar, the learned counsel for the petitioner and Shri S.H.Mittalkod, the learned counsel for the respondent. 6. The learned counsel for the petitioner argued that the learned Sessions Judge has erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque. The complainant has produced the said cheque which is at Ex.P.1 which shows that the cheque was issued in favour of the complainant for ₹ 3,00,000/-. Signature on it is also not disputed by the accused. It is also evident that the said cheque was returned with a shara 'payment stopped' by the bank. Ex.P.4 is the bank challan. Ex.P.6, P.7 are the postal receipt and postal acknowledgment. Ex.P.5 is the legal notice and Ex.P.8 is reply notice. So on perusing the material, prima facie the complainant has made out the ingredients of offence punishable under section 138 of the Negotiable Instruments Act, 1881. 10. It is the defence of the accused that he has lost the cheque. PW.1 in his evidence has stated that he is getting about ₹ 2,00,000/- income per year. He has also stated that he is getting income from hand looms business. He has stated that he has not taken any promissory note and he has not fixed any interest as accused is his relative. The complainant has stated that he has no knowledge that Narayansa filed a suit against this accused. Some suggestion was made that the accused lost 10 cheques while going to Bhagya Nagar. The complainant has expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused has filed this criminal revision petition. 2. Sri Hiremathad, learned Advocate appearing for the petitioner contended that the petitioner has been convicted for an offence under Section 138 of the Act, when the ingredients necessarily to be established have not been established by the respondent- complainant. Learned Counsel submitted that the defence of the accused has not been correctly appreciated and hence, impugned judgments being perverse, interference in the matter is necessary. 3. Sri M.D. Raghunath, learned Advocate appearing for the respondent, on the other hand, contended that the issuance of Ex.P.1 being not in dispute and that the same having been returned by the bank, whereafter a demand was made and the payment having not been made, complaint was filed and the offence committed by the accused having been established by the evidence of P.W.1, and on the basis of Exs. P.1 to P.17, learned Magistrate is justified in finding the accused guilty and in imposing the sentence. Learned Counsel submitted that the Appellate Court has re-appreciated the evidence and the appeal having been found to be devoid of merit, was dismissed. Learned Counsel submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue in his bag. When they were taking tea in a hotel, there was theft of his bag. According to accused, the said Narayansa has filed a civil suit against him and he has given one of the cheque to this complainant and got filed the case. 14. This defence of accused rests with his defence only. There is no iota of evidence placed before the Court to show that Narayansa accompanying him in the year 2006 and he lost the cheque and the said Narayansa has misused the cheque after nearly four years of theft of cheque and got lodged the complaint. 15. Once the complainant is able to show by his oral and documentary evidence that the accused has issued the cheque, which is admitted by the accused and it was returned and dishonoured, the presumption arises in favour of the complainant. The accused can rebut such presumption by two ways. a) First is by cross examining the complainant and his witnesses if any and show before the Court that the case of complainant is not true. This he can do by showing preponderance of probabilities. b) The second is, the accused himself can lead defence evidence in support of defence taken by him. If the Court considers the defence evidence of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3 as under: 8. On the presumption under Section 139 of the N.I. Act, few decisions of this Court are required to be referred to and considered. 8.1 In K.N. Beena V. Muniyappan, (2001) 8 SCC 458, it is observed and held by this Court that under Section 118 of the N.I. Act, unless the contrary is proved, it is to be presumed that the negotiable instruments (including a cheque) had been made or drawn for consideration. It is further observed and held that under Section 139, the Court has to presume, unless the contrary is proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. It is further observed that thus, in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that the cheque has not been issued for a debt or liability is on the accused. 8.2 In Rangappa Vs Sri Mohan, (2010) 11 SCC 441 again, this Court had an occasion to consider the presumption of existence of a legally enforceable debt or liability under Section 139 of the N.I. Act. In the aforesaid decision, after considering other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n part, of any debt or other liability. 15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act, all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) may presume (rebuttable), (2) shall presume (rebuttable), and (3) conclusive presumptions (irrebuttable). The term presumption is used to designate an inference, affirmative or disaffirmative 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 . * * * 18. Applying the definition of the word proved in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not forthcoming; why he has misused only one cheque if there are six cheques is also not forthcoming. Why this Narayansa waited for four years to institute a case through this complainant is also not forthcoming. Therefore, simply taking such defence without any basis, without producing any iota of evidence and giving such a reply will not help the accused in any way. Therefore, such a contention or defence of the accused has no basis at all and will not help him in any way. 19. The accused has not entered the witness box and asserted on oath whatever defence he has taken in the light of defence taken by him. Generally no person will keep with him for 4-5 years some signed cheques and give it to another person to file a complaint. Such a defence is neither probable nor tenable. Neither he has examined the manager of the said bank to show what happened to those cheques nor he has produced any material to show that what is the reason for stop payment, who given it. Therefore, though the learned JMFC has appreciated the evidence in a proper perspective and considered all the materials, the learned Sessions Judge has erred in appreciating the evidence. The learned Sessions Judge h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l action will be taken against them by the person who has lost the cheque. But the accused has not at all filed any criminal case against the said Narayansa or against this complainant. Accused has not entered the witness box and substantiated his defence. On the other hand, both oral and documentary evidence placed by the complainant coupled with the presumption under the provisions of N.I.Act, the complainant has successfully discharged his burden. On the other hand the accused has failed to discharge the onus shifted upon him to show by preponderance of probabilities complainant's case is not acceptable. Hence the judgment passed by the learned Sessions Judge is illegal, perverse and not based on sound principles regarding appreciation of evidence in N.I.Act case. On the other hand the learned trial Judge has properly appreciated the evidence and has rightly come to the conclusion that the accused has committed the offence under section 138 of N.I.Act. 23. The learned counsel for the petitioner has relied upon the decision of the Hon'ble Supreme Court in (2019) 4 SCC 197 in the case of Bir Singh vs. Mukesh Kumar, wherein the Supreme Court in paragraph nos.32, 33, 34, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said submission for the various reasons stated supra. We have no doubt that the respondent has committed an offence punishable under the provisions of Section 138 of the Act and is liable to be punished. The transaction in question took place between the parties in the year 1993, therefore, Section 138, as it stood at the relevant time, would be applicable to the present case. Section 138 provides imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. Section 138 has now been amended and the penalty of imprisonment for a term which may extend to one year has been substituted to two years as provided by the Amending Act of 2002 and the fine which may extend to twice of the amount of the cheque. This has been prescribed as the punishment for the offence under Section 138 of the Act. 25. In view of the principles stated in the above referred decision and the discussions made above, in my considered view if the impugned judgment of the learned Sessions Judge is considered, then it is evident that the said judgment is illegal, perverse and not based on settled principles regarding appreciation of evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enhanced fine is imposed it would meet the ends of justice. Only in the event the respondent-accused not taking the benefit of the same to pay the fine but committing default instead, he would invite the penalty of imprisonment. Hence, appropriate modification is made to the sentence in the manner as indicated hereinbelow: 22. For all the aforestated reasons, the following order; (i) The order dated 01.12.2009 passed by the High Court in Criminal Revision Petition No. 1282/2006 and 1481/2006 are set aside. (ii) The conviction ordered in C.C No. 790/2000 by the learned JMFC is restored. (iii) The sentence to undergo simple imprisonment for six months and fine of ₹ 2,00,00/- (Rupees two lakhs only) is however modified. The Respondent/Accused is instead sentenced to pay the fine of ₹ 2,50,000/- (Rupees two lakhs fifty thousand only) within three months. In default of payment of fine the Respondent/Accused shall undergo simple imprisonment for six months. (iv) From the fine amount, a sum of ₹ 2,40,000/- (Rupees two lakhs forty thousand only) shall be paid to the Appellant/Complainant as compensation. (v) The Appeals No. 849-850/2011 are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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