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2019 Supreme(Bom) 898
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
S.M. Modak, J.
Sumedha - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 849 of 2008
Decided On : 02-01-2019
B.N. Mohta, Adv., A.R. Kulkarni, Adv., A. Shelat, Adv.
Headnote:
Code of Criminal Procedure, 1973 – Section 313 – Negotiable Instruments Act – Section 138 – Dishonour Of Cheque – Recovery – Respondent/Accused was acquitted by the Court of 5th J.M.F.C., Nagpur – It was for the offence punishable under Section 138 of Negotiable Instruments Act on the complaint lodged by the appellant – Now the appellant is challenging the correctness of the decision before this Court – Parties will be referred by their original status. – Held, Pan Card only shows the person is paying income tax. It has got no further importance. This Court feels the accused has failed to rebut the presumption for various reasons. – One is, there is theory of repayment of Rs. 35,000/- put forth during crossexamination and it was put in a halfhearted manner. – It was also not pleaded in a Section 313 Cr.P.C. statement. – The theory of quarrel between his brother and the complainant is unacceptable (answer in statement). – There are no details about when the amount was repaid in what manner. Secondly, there was no reply to notice. – Thirdly, defence of repayment taken in written statement was not fortified by filing acceptable documents. – Fourthly, the accused has never demanded return of cheque after Rs. 35,000/- was repaid by him. – Accused has not made out a probable defence. It is nothing but evasive defence. – The trial Court has failed to draw inferences on the basis of failure on the part of accused to do above facts. – The theory of repayment of Rs. 35,000/- is nothing but after thought theory. Leave apart its proof, it falls short of sufficient details. – So, there will only be conclusion that there is no evidence to rebut presumption. – Court conclude that cheque was issued by the accused for discharge of debt of Rs. 35,000/- towards the complainant. – Memo issued by UCO Bank is at Exh.48. – It was dishonoured for the reason exceeds arrangement. – There is no challenge to this fact either during cross-examination or during Section 313 Cr.P.C. statement. – Memo does not bear seal of the bank. – It is redundant in view of non-challenge by the accused. – This reason is covered as per the reasons mentioned in Section 138 of the N.I. Act. – The amount of cheque must be more than arrangement by the accused with the bank. – There is sufficient evidence about receipt of notice by the accused.– It was issued in time and there was clear demand to pay Rs. 35,000/- within 15 days. Postal receipt at Exh.51 shows about delivery to post and Exh.52 (acknowledgment) shows receipt by the accused on 15/02/2006. – Complaint was filed in time on 20/03/2006. – There is sufficient compliance of these provisions of law. – Point was not raised before the trial Court. Photocopy at Exh.38 shows authority given to husband to depose on behalf of the complainant. – Original was brought at the time of evidence. – Law on this point is settled. – Power of attorney can give evidence (a) for the acts done in pursuance to the power, (b) for the acts done by the principal and of which the attorney is having personal knowledge. – Husband knows the transaction and even he gave instructions along with wife to the advocate while giving notice. – It is not challenged. – Court do not find any fault in the present evidence. – Court conclude that the accused failed to rebut the presumption under Section 139 of the N.I. Act. – Court conclude that complainant succeeds in proving issuance of cheque by the complainant for discharge of debt of Rs. 35,000/- towards complainant. – Court conclude that there is a failure on the part of the complainant to pay Rs. 35,000/- within 15 days of receipt of notice on the background of dishonour of cheque. – Hence, complainant succeeded in proving commission of offence under Section 138 of the N.I. Act by the accused. – Appeal Allowed
JUDGMENT :
S.M. Modak, J.
Respondent/Accused was acquitted by the Court of 5th J.M.F.C., Nagpur on 23/09/2008. It was for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as the "N.I. Act" for the sake of brevity) on the complaint lodged by the appellant. Now the appellant is challenging the correctness of the decision before this Court. Parties will be referred by their original status.
2. The liability of Rs. 35,000/- by way of hand loan was created on 03/07/1999 by the complainant, whereas cheque towards its repayment was issued on 10/01/1906/2006 by the accused. Accused admits signature but denies handwriting of the contents of the cheque. So also there was summary suit filed by the complainant against the accused for recovery of Rs. 66,000/-. During his evidence before Court of Magistrate, he gave incomplete answers during cross-examination.
3. Trial Court held the cheque must have been given in the year 1999 (and not in the year 2006) and the complainant must have misused it by filling in details. So also trial Court laid emphasis on evasive answers about the suit during cross-examination.
4. The issue before this Court is whether presumption is said to be rebutted by the accused and whether the trial Court was right in giving benefit to the accused.
5. Questions have arisen in narrow compass. It involves single testimony of the complainant and few documents. Accused neither entered into witness box nor gave any evidence. I have heard Shri B.N. Mohta, learned Counsel for the complainant and Shri A. Shelat, learned Counsel for the accused. They took me through the record. Both have also relied upon few of the judgments. They are on the point of drawing of presumption under Section 139 of the N.I Act and its rebuttal by the accused.
RATIOS LAID DOWN IN THE JUDGMENTS:
6. Since incorporation in the statute Book, the issue of drawing of presumption has remained focus of attention in prosecution of cases based on dishonour of cheques. After incorporation of these provisions about criminal prosecution, there are lakhs of cases in Courts throughout India. Even though the object behind amendment is laudable, while interpreting these provisions, Hon'ble Apex Court has considered various factors including enormous rise in tendency to resort to this remedy, over flooding of Court docket due to those cases. So also, Hon'ble Apex Court has also considered the purpose (behind making it a criminal offence) of giving more respect to honour the commitment given through cheque.
7. When, I have read judgments cited before me, I find shift in approach while interpreting the provisions of law relating to presumption. That is why Hon'ble Supreme Court in case of Krishna Janardhan Bhat vs. Dattatraya G. Hegde reported in, (2008) 4 SCC 54 was pleased to observe "there is only presumption of debt or liability under Section 138 of the N.I. Act". In other words, it does not extend to legally recoverable debt/liability.
8. However, the observations about presumption were overruled by Hon'ble Supreme Court in a later decision in case of Rangappa vs. Sri Mohan reported in, (2010) 11 SCC 441. It was held "presumption do extend to legally recoverable debt". The judgment is delivered by three Judge Bench. It is also referred by Hon'ble Supreme Court in paragraph 22 of the judgment in case of Kishan Rao vs. Shankargouda reported in, (2018) 8 SCC 165. This is relied upon by the complainant. Probably, the accused through his advocate may not have come across the change in the interpretation as expressed in case of Krishna Bhat.
9. I have read all the three judgments. Ultimately, ratio of the judgment is nothing but enunciation of the principles of law. But, we should not forget that the enunciation is made by considering the facts. From these judgments, certain principles of law emerge. They are as follows :
(a) On proof of introductory facts, presumption can be drawn in favour of the complainant.
(b) Presumption is a rebut
