9911796707
TMI Blog2023 (12) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... n 420 of IPC. It was asserted that the father of the complainant is suffering from paralysis. He sold his vehicle i.e. Tata Sumo bearing registration no. HP-20A-4196 to Surinder Singh for consideration of Rs. 2,10,000/- in April, 2005. Surinder Singh paid a sum of Rs. 70,000/- in cash and got his vehicle financed for Rs. 1,40,000/- with M/s Chadha Associates through its Proprietor Suddhir Nischal, the present accused. The accused paid a sum of Rs. 1,10,000/- through cheque. He also issued a cheque for Rs.46,000/- (Rupees 40,000/- Principal + Rupees 6000/- interest) bearing Cheque No. 352713, dated 20.8.2005 of Oriental Bank of Commerce, Una in favour of the complainant. The complainant deposited the cheque for collection with his banker. However, the cheque was dishonoured vide memo dated 05.09.2005 with an endorsement "Insufficient Funds". The complainant served a legal notice dated 15.09.2005, upon the accused, which was received by him on 16.09.2005. The notice was issued to the accused to make the payment within 15 days from the date of its receipt. However, the accused failed to pay the amount. Hence, the complaint was filed to take action against the accused. 3. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Court had erred in holding that the version of the complainant became doubtful due to the statement of his father. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr. N.K. Thakur, learned Senior Counsel assisted by Mr Karan Veer Singh, Advocate for the appellant/complainant and Mr T.S.Chauhan, learned counsel for the respondent/accused. 9. Mr. N. K. Thakur, learned Senior Counsel for the appellant/complainant submitted that the accused had admitted the issuance of the cheque;therefore, a presumption of consideration applied to the present case. The learned Trial Court erred in ignoring this presumption. The accused did not provideany evidence to rebut the presumption. The version of the complainant was duly corroborated by Surinder Singh, who proved that the accused had financed the vehicle;therefore, he prayed that the present appeal be allowed and judgment passed by the learned Trial Court be set aside. 10. Mr T.S.Chauhan, learned Counsel for the respondent/accused supported the judgment passed by the learned Trial Court. He submitted that the burden lies upon the complainant to est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dictionary in the following terms: "erroneous.- wrong; incorrect. wrong.-(1) not correct or true, mistaken. (2) unjust, dishonest, or immoral. possible.-(1) capable of existing, happening, or being achieved. (2) that may exist or happen, but that is not certain or probable." 34. It will be necessary for us to emphasize that a possible view denotes an opinion, which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act, the High Court should and will always give proper weight and consideration to such matters as: 1) The views/opinion of the trial judge as to the credibility of the witnesses; 2) The presumption of innocence in favour of the accused; 3) The right of the accused to the benefit of any doubt; and 4) The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. 19. This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal and laid down the general principles in the matter of Chandrappa v. State of Karnataka (2007) 4 SCC 415 to the following effect: "42. From the above decisions, in our considered view, the following general principles regarding the powers of the Appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An Appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted......" 9. S.139 of the Act provides that it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque of nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. 16. Similar is the judgment in Basalingappa vs. Mudibasappa 2019 (5) SCC 418, wherein it was held: 24. Applying the proposition of law as noted above, in the facts of the present case, it is clear that the signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability. 17. This position was reiterated in M/S Kalamani Tex and another Versus P. Balasubramanian 2021 (5) SCC 283, wherein it was held: "14. Adverting to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mere possibility. These principles were also affirmed in the case of Kumar Exports (supra), wherein it was further held that bare denial of passing of consideration would not aid the case of the accused." 18. This presumption was explained by the Hon'ble Supreme Court in Triyambak S. Hegde Versus Sripad 2022 (1) SCC 742 as under: 11. From the facts arising in this case and the nature of the rival contentions, the record would disclose that the signature on the documents at Exhibits P-6 and P-2 is not disputed. Exhibit P-2 is the dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be the position, as noted by the courts below a presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. Section 139 of the N.I. Act reads as hereunder:- "139. Presumption in favour 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, of any debt or other liability." 12 Insofar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... robabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come into the witness box to support his defence. 26. Applying the proposition of law as noted above, in the facts of the present case, it is clear that the signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of PW1, when the specific question was put that the cheque was issued in relation to a loan of Rs.25,000 taken by the accused, PW1 said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 139 of N.I. Act on a signature being admitted has been reiterated. Hence, whether there is a rebuttal or not would depend on the facts and circumstances of each case. 19. This position was reiterated in Tedhi Singh vs. Narayan Dass Mahant 2022 (6) SCC 735, wherein it was held : 7. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the N.I. Act provides that the Court shall presume 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, of any debt or other liability. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of 'probable defence' has grown. In an earlier judgment, in fact, which has also been adverted to in Basalingappa (supra), this Court notes that Section 139 of the N.I. Act is an example of reverse onus [see (2010) 11 SCC 441). It is also true that this Court has found that the accused is not expected to discharge an unduly high standard of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated therein, 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. 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". 35. The Court will necessarily presume that the cheque had been issued towards the 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 the 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 & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35] ] 36. 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. Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa v. Mudibasappa [Basalingappa v. Mudibasappa , (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571 : AIR 2019 SC 1983] ; see also Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] ] 41. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the 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, com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on but the learned Trial Court held that the version of the complainant was not reliable due to the discrepancy in the amount mentioned by the complainant's father and the complainant. It is necessary to refer to the testimonies of the witnesses to determine whether the accused had succeeded in rebutting the presumption attached to the cheque and the learned Trial Court had rightly recorded that the discrepancy in the amount was sufficient to rebut the presumption. 25. Desh Raj (CW-4) stated that he had sold the Tata Sumo to Surinder Singh, who paid himRs.70,000/- in cash. He (Surinder Singh) got the vehicle financed from Chadha Finance Company. It paid Rs.1,00,000/- and issued a cheque for the remaining amount. The cheque was issued in his name but he stated that he is a patient of paralysis and the cheque should be issued in the name of his son. The cheque was dishonoured. He stated in his crossexamination that he came to the Court himself. He denied that he had encashed the cheque issued in his name by the accused. He denied that he got a cheque issued in the name of his son by practising fraud. He admitted that Surinder Singh had financed the vehicle sold to him. He did not kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unfolded, he could see his younger brother-KumudKakati (P.W.-2) and his wife Smt. PremaKakati (P.W.-3). The place was Duliapather, which is about 6-7 km. away from his village Sakrahi. The witness identified the appellant- Tarun Bora and stated that it is he who took him in an ambassador car from the residence of Nandeswar Bora on the date of the incident. 16. In cross-examination the witness stated as under: "Accused-Tarun Bora did not blind my eyes nor he assaulted me." 17. This part of the cross-examination is suggestive of the presence of accusedTarun Bora in the whole episode. This will clearly suggest the presence of the accused-Tarun Bora as admitted. The only denial is the accused did not participate in blind-folding the eyes of the witness nor assaulted him." 37. In Rakesh Kumar alias Babli v. State of Haryana reported in (1987) 2 SCC 34, this Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34 of the IPC. While re-appreciating the evidence on record, this Court noticed that in the cross-examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suggestion that he had got the amount and the accused had demanded the cheque from the complainant, clearly, showing that the accused had liability and he had issued the cheque to discharge the liability. 30. Surinder Singh (CW-5) stated that he had purchased a vehicle bearing registration no.HP20A-4196 from Desh Raj. He made a payment of Rs. 70,000/- to Desh Raj in cash and got the vehicle financed from Chadha Finance Company, which was being managed by the accused. The remaining amount was to be paid by the accused to the complainant. The accused issued a cheque. The amount was never received by the complainant. He stated in his cross-examination that he had purchased the vehicle for Rs.2,10,000/-. He had paidRs.50,000/- and got the vehicle financed for Rs.1,20,000/-. No agreement was executed between the parties. He did not have any receipt regarding the payment to the Finance Company. He denied that he had not paid the money to the Finance Company; therefore, the remaining payment was stopped. He admitted that he was liable to pay the remaining amount. He had paid the remaining amount to the accused after one week. He admitted that the complainant was his relative. He denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole amount. He denied that the accused demanded the cheque from him. He admitted that payment was to be made by Suridner Singh after getting the vehicle financed. 34. The learned Trial Court had relied upon the statement of the complainant to hold that Surinder Singh was to make the payment and the accused is not liable to make the payment. This is not acceptable. It is apparent from the evidence that the accused had financed the vehicle, which means that he had agreed to pay the amount to Surinder Singh or at his instance to the seller. 35. It was laid down by Kerala High Court in A.K. Bhaskaran vs. K.G. Sheeba and Ors. MANU/KE/5580/2019, that Section 138 of Negotiable Instruments Acts, 1881,nowhere provides that the cheque drawn should be in discharge of drawer's liability alone. It could be in discharge of "any debt or other liability". It was observed : - "12. A cheque issued by a guarantor is also a cheque regarded by Section 138 of the N.I. Act as one being issued in discharge of legally enforceable debt. Section 138 of the N.I. Act nowhere provides that the cheque drawn should be in discharge of drawer's liability alone. It could be in discharge of "any debt or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 139 of the Negotiable Instruments Act. It was laid down by the Hon'ble Supreme Court in Uttam Ram Versus Devinder Singh Hudan and another (2019) 10 SCC 287 that the complainant is not to prove the debt as in a Civil Court in view of the presumption but only to prove that the cheque was issued by the accused. It was observed : "20. The Trial Court and the High Court proceeded as if, the appellant is to prove a debt before a civil court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. Dishonour of a cheque carries a statutory presumption of consideration. The holder of the cheque in due course is required to prove that the cheque was issued by the accused and that when the same was presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability. 38. Therefore, the absence of any agreement will not make the case of the complainant doubtful. 39. Thus, the cross-examination of the complainant or his witness was insufficient to rebut the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue, but it seems to me that crossexamination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards, to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling." [58] Lord Halsbury, in a separate but concurring opinion, held as under: "My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind, nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Bhoju Mandal v. Debnath Bhagat [Bhoju Mandal v. Debnath Bhagat, 1963 AIR(SC) 1906]. This Court repelled a submission on the ground that the same was not put either to the witnesses or suggested before the courts below. A party is required to put his version to the witness. If no such questions are put the Court would presume that the witness account has been accepted as held in Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. 1958 AIR(P&H) 440. 16. In Maroti Bansi Teli v. Radhabai [Maroti Bansi Teli v. Radhabai, 1945 AIR(Nag) 60, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. The High Court of Calcutta in A.E.G. Carapiet v. A.Y. Derderian 1961 AIR(Cal) 359 has laid down that the party is obliged to put his case in cross-examination of witnesses of the opposite party. The rule of putting one's version in cross-examination is one of essential justice and not merely a technical one. A Division Bench of the Nagpur High Court in Kuwarlal Amritlal v. Rekhlal Koduram 1950 AIR(Nag) 83 has laid down that when attestation is not spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y him. It was observed: "It is also to be borne in mind that the requirement of giving notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of the complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the giving of notice in the context of Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded that the signature had been admitted, the court ought to have inquired into either of the two questions (depending on the method in which the accused has chosen to rebut the presumption): Has the accused led any defence evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the non-existence of debt/liability by a preponderance of probabilities by referring to the "particular circumstances of the case"? 56. The perversity in the approach of the trial court is noticeable from the way it proceeded to frame a question at trial. According to the trial court, the question to be decided was "whether a legally valid and enforceable debt existed qua the complainant and the cheque in question (Ext. CW I/A) was issued in discharge of said liability/debt". When the initial framing of the question itself being erroneous, one cannot expect the outcome to be right. The onus instead of being fixed on the accused has been fixed on the complainant. A lack of proper understanding of the nature of the presumption in Section 139 and its e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
