2019 Supreme(SC) 1157

SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, JJ.
Uttam Ram – Appellant
Versus
Devinder Singh Hudan and Another – Respondents
Criminal Appeal No. 1545 of 2019, SLP (CRL) No. 3452 of 2019
Decided On : 17-10-2019

IMPORTANT POINTS
(1) Dishonour of cheque – Onus shifts to accused on proof of issuance of cheque to rebut presumption that cheque was issued not for discharge of any debt or liability in terms of Section 138 of N.I Act.
(2) Statement of accused under Section 313 of Cr.P.C. is not a substantive evidence of defence of accused.

Headnote:

(A) Negotiable Instruments Act, 1881 – Section 138 read with Sections 118(a) and 139 – Criminal Procedure Code, 1973 – Section 203 – Dishonour of cheque – Dismissal of complaint – Appeal by complainant – Court dismissed complaint for reason that cheque amount was more than amount alleged on due date when cheque was presented – Dishonour of cheque carries statutory presumption of consideration – Holder of cheque in due course is required to prove that cheque was issued by accused and that when same presented, it was not honoured – Since there is statutory presumption of consideration, burden is on accused to rebut presumption that cheque was issued not for any debt or other liability – Trial Court and High Court proceeded as if, appellant is to prove a debt before civil court wherein, plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for recovery of amount due – There is mandate of presumption of consideration in terms of provisions of Act – Onus shifts to accused on proof of issuance of cheque to rebut presumption that cheque was issued not for discharge of any debt or liability in terms of Section 138 of Act. (Paras 8, 18, 20 and 21)

(B) Negotiable Instruments Act, 1881 – Section 138 read with Sections 118(a) and 139 – Criminal Procedure Code, 1973 – Section 203 – Dishonour of cheque – Dismissal of complaint – Appeal by complainant – Respondent has not rebutted the presumption of consideration – Respondent has not denied even in his statement that cheque was not issued by him – Cross examination of witnesses produced by appellant also does not show that signatures on cheque by him have not been disputed – Respondent has not appeared as a witness to prove fact that cheque book was lost or that cheque was not issued in discharge of any debt or liability – Respondent has not lodged any FIR in respect of loss of cheque, even after notice of dishonour of cheque was received by him – Once agent of respondent has admitted settlement of due amount and in absence of any other evidence Trial Court or High Court could not dismiss complaint only on account of discrepancies in determination of amount due or oral evidence in amount due when written document crystallizes amount due for which cheque was issued – Presumption of consideration has not been rebutted by respondent even on the basis of evidence laid by appellant – Difference in number of cartons supplied or rate charged is not relevant when accounts were settled in writing to rebut presumption of consideration of issuance of a cheque – Conclusion drawn by Trial Court and High Court to acquit respondent is not only illegal but being perverse is totally unsustainable in law – Order passed by High Court set aside – Respondent is held guilty of dishonour of cheque for offence under Section 138 of Act – Respondent shall pay fine twice of amount of cheque and cost of litigation of Rs.1,00,000/- within three months. (Paras 26, 27, 28, 29, 30, 33 and 34)

(C) Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Statement of accused under Section 313 is not a substantive evidence of defence of accused but only an opportunity to accused to explain incriminating circumstances appearing in prosecution case of accused. (Para 26(7))

Facts of the case:

Appellant is aggrieved against an order passed by High Court of Himachal Pradesh, Shimla on 17.12.2018, whereby, order of dismissal of complaint under Section 138 of Negotiable Instruments Act, 18811 by Trial Court was not interfered with.

Findings of Court:

Findings recorded by the courts below are total misreading of statutory provisions more so when respondent has not led any evidence to rebut presumption of consideration. Cross-examination on prosecution witness is not sufficient to rebut presumption of consideration. Mere discrepancies in statement in respect of cartons, trays or packing material or rate charged will not rebut statutory presumption. Approach of Trial Court and that of High Court is perverse; irrational as well as suffers from material illegality and irregularity, which cannot be sustained in complaint filed under Section 138 of Act.

Result : Appeal allowed.