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TMI Blog2024 (9) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... hila Co., had purchased 100 Tins of Oil from the petitioner, therefore, the accused evidently failed to discharge the burden to prove that the cheque was not issued against existing debt. The learned appellate court has mis-construed the law that burden of proof was on the complainant. Further, the appellate court has travelled beyond the scope of proof of charge under Section 138 of the Negotiable Instruments Act by finding fault that the residential address of accused is different than her business premises. The accused not has denied that she has business at the referred premises. Whether the appellate court failed to consider in the Criminal Revision filed by the petitioner that the sentence awarded is illegal inasmuch as it is not consistent with the requirement of minimum punishment under Section 138 of the Negotiable Instruments Act? - HELD THAT:- A bare perusal of provisions of Section 138 of the Negotiable Instruments Act makes it crystal clear that for the offence under the said provision, the punishment would be imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque, or with both. In the case on hand, the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned cheques for the use of the firm. 3. The petitioner examined himself during trial as PW-1 and deposed about what the petitioner had stated in the complaint petition and proved the bounced cheque, which was marked as Exhibit-1. Exhibit-2 was the return of cheque by the bank for insufficient fund. Exhibit-3 was notice dated 06.4.1994 and Exhibit-6 was the reply of respondent no.1 dated 9.4.1994. The petitioner further examined Raju Manvani as witness no.2, who specifically asserted that he had not issued the dishonoured cheque to the petitioner nor he had misused the cheque in collusion with the petitioner. The respondent no.1 did not appear in the witness-box, however, in her statement under Section 313 Cr. P.C., she admitted her signature on the cheque and asserted that it was filled by Raju Manvani. PW-2 Raju Manvani has admitted that he had filled the cheque at the instructions of respondent no.1. Raju Manvani denied that he was employee of Sushila Co., and he asserted that he was Proprietor of his own firm. 4. On behalf of respondent no.1 Mr. Shyam Lal, the husband of respondent no.1 was examined as DW-1. He has deposed that he was looking after the business of Sushila Co., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Jodhpur. 8. The question arise herein is :- (1) Whether the appellate court has acted with material irregularity and illegality in assuming burden of proof of outstanding due on the complainant in the facts and circumstances of this case ? and (2) Whether the appellate court failed to consider in the Criminal Revision filed by the petitioner that the sentence awarded is illegal inasmuch as it is not consistent with the requirement of minimum punishment under Section 138 of the Negotiable Instruments Act ? 9. Learned counsel for the petitioner has relied on the judgment of Hon ble Supreme Court in Rajesh Jain Vs. Ajay Singh, reported in AIR 2023 SC 5018 in support of his submission that once complainant proved the requirements of Section 138 of the Negotiable Instruments Act, the burden would shift under Section 139 of the Negotiable Instruments Act, 1881 on the accused to prove that the cheque was not issued for payment against outstanding dues. 10. The provisions of Section 138 Section 139 of the Negotiable Instruments Act, 1881 are being reproduced below for better appreciation of the facts :- 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith that. 12. In Para-26 of Rajesh Jain s case (supra) the Hon ble Supreme Court referred earlier judgment and the requirements to prove offence under Section 138 of the Negotiable Instruments Act as follows :- 26. In Gimpex Private Limited vs. Manoj Goel, this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure: (1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account; (i) The cheque being drawn for the discharge in whole or in part of any debt or other liability; (iii) Presentation of the cheque to the bank arranged to be paid from that account, (iv) The return of the cheque by the drawee bank as 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 mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. Now, after introduction of a presumptive device under Section 139 of the Negotiable Instruments Act, 1881 as referred above, the onus reverses on the accused to prove non-existence of the fact that the cheque was issued for discharge of a debt/ liability. The respondent-accused admitted her signature on the cheque but did not appear in the witness-box to discharge the reverse burden. Her husband DW-1 claims to have been looking after the business of Sushila Co., but failed to discharge this burden by producing books of accounts etc. or folio of cheque-book as to against which head the cheque was issued or in fact there is entry of purchase of 100 Tins of Oil in the books of accounts or not, rather simply conveyed evasive reply that he is not aware of the fact that whether Sushila Co., had purchased 100 Tins of Oil from the petitioner, therefore, the accused evidently failed to discharge the burden to prove that the cheque was not issued against existing debt. 14. The learned appellate court has mis-construed the law that burden of proof was on the complainant. Further, the appellate court has travelled beyond the scope of proof of charge under Section 138 of the Negoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. Evidently the judgment of appellate court in Criminal Appeal No.73/1999 suffers from misconstruction and misinterpretation of law. Hence it is hereby set aside and the matter is remitted back for reconsideration according to law. 17. A bare perusal of provisions of Section 138 of the Negotiable Instruments Act referred above makes it crystal clear that for the offence under the said provision, the punishment would be imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque, or with both. In the case on hand, the trial Judge has awarded sentence only but the sentence cannot be less than the cheque amount. It may extend to twice the cheque amount. Since the trial Judge has not passed minimum sentence consistent with the law, the same is revisable one, hence, dismissal of Crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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