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TMI Blog2023 (10) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase unless the contrary is proved - As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words until the contrary is proved occurring in Section 139 do not mean that ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner : Petitioner-in-person For the Respondent : Mr. Yudhvir Dalal, Adv. Mr. Surender Singh, Adv. Mr. Himanshu Singroha, Adv. Ms. Sunaina, Adv. Mr. Sunil Kumar Sethi, Adv. Mr. Kailas Bajirao Autade, AOR ORDER 1. Leave Granted. 2. The respondent-accused was tried for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short NI Act ). The Trial Court acquitted Judgment and Order dated 17.12.2019 in Crl. Complaint No. 221 of 2017 him. The High Court dismissed the appellant s complainant's appeal and upheld the order of acquittal Criminal Appeal No.148 of 2020 was dismissed by Hon ble High Court of Gujarat by Judgment and Order dated 01.02.2021 . Challenging the concurrent findings passed by the Courts below, the complainant has preferred this appeal. Case of the Complainant 3. Mr. Ajay Singh (respondent-accused), along with his wife, is said to have approached the appellant-complainant (Mr. Rajesh Jain) on 01.03.2014 with a request for lending him money. The meeting is said to have been facilitated by Ms. Gita Sunar the sister-in-law of Mr. Singh who had been working as an employee under Mr. Rajesh Jain for nearly 15 years then. Mr. Rajesh Jain, appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as CW3. The complainant had also produced the relevant documentary evidence Ex.CW1/A-Cheque No.163044 dt.19.10.2017 , Ex.CW1/B-Cheque return Memo dt. 01.11.2017 , Ex.CWA/C- Copy of Bank passbook of complainant , Ex.CW1/D-Legal Notice dt. 26.10.2017 , Ex.CW1/E-Postal Receipt dt. 28.10.2017 , Ex.CW2/1-Statement of account of complainant Dr. Rajesh Jain w.e.f 01.10.2017 to 31.12.2017 , Ex. CW2/2-Copy of Cheque Bonus Register including the cheque in question, cheque return memo, copy of the bank passbook, demand notice, postal register, statement of accounts of the complainant and cheque returned register. 9. In his statement under Section 313 of the Code of Criminal Procedure Code 1973, the accused admits of having borrowed money to the extent of Rs.20 lakhs from the complainant. He admits of having paid some interest amount and has pleaded that he could not pay the remaining amount since complainant had started demanding higher amount. He further admits of having received the legal notice but denies having issued any cheque. 10. No defense evidence has been led on behalf of the accused. 11. On a consideration of evidence on record, the Trial Court returned a finding that the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceable claim. (iv) The procedure set out in Section 138 has not been properly followed in that the legal notice has been issued prematurely, even before the complainant had received notice of the cheque return memo. The date reflected on the cheque return memo is 1.11.2017 and the date on which the legal notice was issued is 26.10.17. The legal notice could not have been issued until the cheque had been dishonoured. (v) The version of the complainant is doubtful since the cheque was, admittedly, issued in part-payment of outstanding dues. Nowhere in the complaint or demand notice has the complainant disclosed the total amount loaned to the accused. The Court found it rather surprising that the complainant, an orthopaedic surgeon, would advance huge amounts of loan to the accused, a Class IV employee, without any formal agreement/acknowledgement of loan advanced. 16. The complainant was granted special leave to appeal under Section 378 (4) CrPC before the High Court of Punjab and Haryana. Proceedings before the High Court 17. On reappreciating the evidence on record, the High Court has found no merit in the appeal and has upheld the order of acquittal passed by the Trial Court. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued in respect of a legally enforceable debt. 19. We have heard Mr. Rajesh Jain, appellant appearing in-person, and Mr. Yudhvir Dalal, learned Counsel for the respondent. 20. Mr. Rajesh Jain, appearing in-person has contended that there is a serious flaw in the approach of the Courts below while appreciating the evidence on record. According to him, the signature on the cheque not being under dispute, and the presumption under Section 139 having been drawn against the accused, there was nothing available on record to suggest that the accused had discharged his onus of rebutting the presumption. He drew our attention to the reasoning given in the orders of acquittal to contend that courts below had erroneously proceeded to appreciate the evidence as though the onus was on the complainant to prove that the cheque was issued in discharge of a debt . Once the presumption operates, the onus rests on the accused to prove the nonexistence of debt/liability and the courts could not have doubted the complainant's case from any point of view. He finally argued that the respondent cannot be said to have raised a 'probable defence' since the case set up in defence was full of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples Scope of Article 136 vis a vis Concurrent Finding of Fact 24. At the threshold, we must note that the challenge in this appeal calls for an interference against concurrent findings by two Courts. The scope of an appeal by special leave under Article 136 of the Constitution of India against the concurrent findings is well settled. In Mst. Dalbir Kaur and Ors. vs. State of Punjab (1976) 4 SCC 158, this Court, on a consideration of multiple authorities, has distilled the principles governing interference by this Court in a criminal appeal by special leave, as follows: (1) that this Court would not interfere with the concurrent finding of fact based on pure appreciation of evidence even if it were to take a different view on the evidence. (2) that the Court will not normally enter into a reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on. (3) that the Court would not enter into credibility of the evidence with a view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount (v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and (vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice. 27. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 this Court had summarised the constituent elements of the offence in fairly similar terms by holding: 14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice. 28. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ] 31. Presumption, on the other hand, literally means taking as true without examination or proof . In Kumar Exports v. Sharma Exports (2009) 2 SCC 513 , this Court referred to presumption as devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. 32. Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edition paras 111, 112]. Among the class of rebuttable presumptions, a further distinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35] 37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [ Bir Singh v. Mukesh Kumar (2019) 4 SCC 197 ]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption. 38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential bur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was no debt/liability . [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513] 43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact. 44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blank cheque - the said cheque having been obtained from his employee, Gita Sunar, who also happens to be the sister-in law of the accused. It was suggested that Gita Sunar had some financial transactions with the complainant and towards that end, he had received a blank cheque (signed by the accused) from Gita Sunar and misused it. It is pertinent to note that the suggestions mentioned above were denied by the complainant. 49. In her cross examination, Gita Sunar (examined on behalf of complainant as CW.3) has denied the suggestion that she has misused a blank cheque in collusion with the complainant. She has also denied the suggestion that a blank cheque was given to her by the brother-in law of the accused. 50. In the statement recorded under Section 313 of Cr.P.C., the first incriminating circumstance put to the accused was as follows : It has come in evidence against you that you along with your wife, Jyoti visited the plaintiff an Orthopaedic Surgeon on 1-3-14, and availed friendly loan from plaintiff from time to time through sister of Jyoti namely Gita Sunar working there, on the plea of need for family requirements, and promised to pay up the interest moneys as also the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in his cross examination that no legal notice had been issued. The theory of 'blank cheque' being misused has been suggested, only to be denied by both, the complainant and Gita Sunar-CW-3. No action has been taken by way of registering a police complaint in order to prosecute the alleged illegal conduct of his blank cheque having been misused by CW-3. 54. Nothing significant has been elicited in the cross-examination of complainant to raise any suspicion in the case set up by the complainant. Other than some minor inconsistencies, the case of the complainant has been consistent throughout as can be noticed from a perusal of the complainant, demand notice and affidavit evidence. In fact, the signature on the cheque having not been disputed, and the presumption under Section 118 and 139 having taken effect, the complainant's case stood satisfied every ingredient necessary for sustaining a conviction under Section 138. The case of the defense was limited only to the issue as to whether the cheque had been issued in discharge of a debt/liability. The accused having miserably failed to discharge his evidential burden, that fact will have to be taken to be proved by force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resulted in an erroneous Order being passed. 58. Einstein had famously said: If I had an hour to solve a problem, I'd spend 55 minutes thinking about the problem and 5 minutes thinking about solutions . Exaggerated as it may sound, he is believed to have suggested that quality of the solution one generates is directly proportionate to one's ability to identify the problem. A well-defined problem often contains its own solution within it. 59. Drawing from Einstein's quote, if the issue had been properly framed after careful thought and application of judicial mind, and the onus correctly fixed, perhaps, the outcome at trial would have been very different and this litigation might not have travelled all the way up to this Court. 60. Coming to the finding of High Court, we find again, there has been fundamental error in the approach with which the High Court has proceeded to consider the evidence on record. In paragraph 6 of the impugned order, the High Court finds that the complainant has proved the issuance of cheque, which means that the presumption would come into immediate effect. In paragraph 13, it rightly observes that the burden is on the accused to rebut such pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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