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TMI Blog2024 (10) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 13,00,000/- to the respondentcomplainant (hereinafter "complainant"). 2. Precisely, the facts of the case, as emerge from the record are that complainant instituted a complaint under Section 138 of the Act before the competent Court of law, alleging therein that accused borrowed sum of Rs. 6,50,000/- from him on 17.10.2017. With a view to discharge her lawful liability, accused issued two post dated cheques i.e. cheque bearing No. 297411 (Ext.C1) dated 18.10.2017 amounting to Rs. 3,50,000/- and cheque bearing No. 297412 (Ext.C2) dated 21.10.2017 amounting to Rs. 3,00,000/-, respectively, drawn on SBI, New Shimla, but aforesaid cheques on their presentation were returned back vide memos dated 23.10.2017 (Ext.C3 & C4) with the remarks "Funds Insufficient". Since accused failed to make the payment good within the stipulated period despite her having received legal notice dated 28.10.2017 (Ext.C5), complainant had no option, but to initiate proceedings under Section 138 of the Act in the competent Court of law. 3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment dated 01.03.2023 and order dated 14.03.2023, held the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was never probablized by leading cogent and convincing evidence, both the Courts below rightly invoked Sections 118 and 139 of the Act, which speak about presumption in favour of holder of cheque that cheque in question was issued towards discharge of lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused is required to raise probable defence. Despite sufficient opportunity, accused failed to lead any evidence. In his statement under Section 313 Cr.P.C, though she denied her liability, if any, to pay the amount, but she nowhere disputed factum with regard to issuance of cheque as well as signature thereupon. However, in the instant case, neither accused could show in his pleadings as well as evidence of the complainant that sum of Rs. 6,50,000/- was never borrowed by her, rather she had taken only Rs. 2,00,000/-, which was also returned nor she lead any positive evidence to probabalize aforesaid defence set up by her. 8. The Hon'ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence, which creates doubt about the existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant. 25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination, he admitted that he had transferred Rs. 2,00,000/-, however, this Court is not impressed with the aforesaid submission of learned counsel for the petitioner for the reason that in cross-examination, no suggestion ever came to be put-forth to the accused that he had only lent Rs. 2,00,000/-, rather specific suggestion came to be put-forth to the accused that he had transferred Rs. 2,00,000/-, which factum was fairly admitted by him, but he nowhere denied that he had not lent Rs. 6,50,000/-. 11. By now it is well settled that dishonour of cheque issued as security can also attract offence under Section 138 of the Negotiable Instruments Act. Hon'ble Apex Court in case titled Sripati Singh v. State of Jharkhand, Criminal Appeal No. 1269-1270 of 2021, decided on 28.10.2021, has held as under : "16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice." 15. True it is that the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal Court in its judicial process or illegality of sentence or order, but learned counsel representing the accused has failed to point out any material irregularity committed by the Courts below while appreciating the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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