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2004(1) Bankmann 29
PUNJAB AND HARYANA HIGH COURT
K.S. Garewal, J.
M/s Ganesh Flour Mills — Appellant
versus
Jeewan Kumar and
another — Respondents
Criminal Appeal No. 475-DBA of 1993.
Decided on: 23.2.2004.
Held: The learned Additional Sessions Judge, Patiala came to the conclusion that mere issuing of a cheque or signing of a cheque would not make the accused liable for the offence unless it was shown that the cheque was in discharge of a debt or a legally enforceable liability. Since the complainant had not led any evidence on this aspect of the case, the complainant’s case that an offence under Section 138 of the Act had been committed was not proved. Jeewan Kumar and Satish Kumar were acquitted.
The learned counsel for the appellant has vehemently argued that the learned appellate Judge had over-looked the provisions of Sections 118 and 139 of the Act. According to Section 139 there was a presumption that the holder of a cheque received the cheque for the discharge, in whole or in part, or any debt or liability. Under Section 118 of the Act there was a presumption that every negotiable instrument had been drawn for consideration. Therefore, from the perusal of evidence it was evident that the amounts were due from the accused to the complainant and the cheques of the accused had been dishonoured which meant that the accused did not have sufficient amount in their accounts of meet the cheques.
It is all very well for the appellant complainant to argue that there was a presumption in his favour but what is not understandable is the failure of the complainant to give even a slight hint of the debt or liability which the party had incurred when the cheque had been issued. Did the appellant supply some goods on credit, did the appellant loan the amount or did he sell him some house hold articles. The appellant had disclosed nothing in his evidence as to why he had been handed over the two cheques in question. Is one to presume that the cheques were a present or a donation to charity. The appellant complainant is flour mill, therefore, it could be said that the mill had supplied flour or some by-product. Even this is not the complainant’s case. (Paras 4, 5 & 6)
Held Finally: There is a presumption that every negotiable instrument had been drawn for consideration and that the cheque had been issued in discharge of any debt due from him, it becomes the duty of the complainant to establish the consideration and the debt due. Therefore, it was incumbent upon the complaint to produce documentary/oral evidence to establish that the cheques were in fact issued to him in discharge of a debt or liability because the presumption had already been rebutted by the accused in their replies to the notice of dishonour. The Complainant was, therefore, aware that this would be the plea of the accused in defence and he should have produced the evidence in support of his case that the cheque was issued to him for consideration. The complainant had failed to so, therefore, the appellate Court was perfectly justified in acquitting the accused. The acquittal of the accused could be set aside in this appeal against acquittal but only after finding that the conclusion of the trial Court was perverse. In the circumstances of the case it cannot at all be held that the decision of the appellate Court was either unreasonable or perverse while acquitting the accused-respondents. In view of the above, the appeals are without merit and are dismissed.
(Para 9)
Result: Appeal dismissed.
K.S. Garewal, J.—Criminal Appeals 475-DBA and 476-DBA of 1993 filed by Ganesh Flour Mills, Nabha to challenge the acquittal of two brothers, Jeewan Kumar, and Satish Kumar, respectively, shall be decided by this Judgment. Jeewan Kumar and Satish Kumar were acquitted by the learned Additional Sessions Judge, Patiala
vide Judgment dated April 30, 1993 after they had both been convicted
by the learned Judicial Magistrate, Nabha vide Judgment dated October 19, 1992.
2. Briefly stated the facts are that Ganesh Flour Mills, Nabha through its sole proprietor Budh Sagar had filed two complaints under Section 138 of the Negotiable Instruments Act (for short ‘the Act’) read with Section 420 I.P.C. against Jeewan Kumar and Satish Kumar. According to the complainant Jeewan Kumar had issued a cheque for Rs. 30,900/- on June 18, 1991 drawn on Oriental Bank of Commerce, Nabha. The cheque on presentation was dishonoured with the remarks “referred to drawer”. Notice of dishonour was issued upon the party on June 29, 1981 but payment was not received and hence the complaint was filed. The learned Magistrate came to the conclusion that the sum mentioned in the cheque was issued by Jeewan Kumar to the complainant. The plea of the accused that he had not taken any loan from the complainant and that his signatures on the cheque had been obtained by an employee of the bank was not accepted by the learned Magistrate. It was held that the complainant had proved that the cheque had been returned by the banker on account of the party having insufficient funds in the bank. Consequently, Jeewan Kumar was convicted.
3. The pleas and the evidence against Satish Kumar were also similar and so also was the finding of the learned Magistrate except that the amount in question was Rs. 4000/- for which cheque had been issued on June 12, 1991.
4. The learned Additional Sessions Judge, Patiala came to the conclusion that mere issuing of a cheque or signing of a cheque would not make the accused liable for the offence unless it was shown that the cheque was in discharge of a debt or a legally enforceable liability. Since the complainant had not led any evidence on this aspect of the case, the complainant’s case that an offence under Section 138 of the Act had been committed was not proved. Jeewan Kumar and Satish Kumar were acquitted.
5. The learned counsel for the appellant has vehemently argued that the learned appellate Judge had over-looked the provisions of Sections 118 and 139 of the Act. According to Section 139 there was a presumption that the holder of a cheque received the cheque for the discharge, in whole or in part, or any debt or liability. Under Section 118 of the Act there was a presumption that every negotiable instrument had been drawn for consideration. Therefore, from the perusal of evidence it was evident that the amounts were due from the accused to the complainant and the cheques of the accused had been dishonoured which meant that the accused did not have sufficient amount in their accounts of meet the cheques.
6. It is all very well for the appellant complainant to argue that there was a presumption in his favour but what is not understandable is the failure of the complainant to give even a slight hint of the debt or liability which the party had incurred when the cheque had been issued. Did the
appellant supply some goods on credit, did the appellant loan the amount or did he sell him some house hold articles. The appellant had disclosed nothing in his evidence as to why he had been handed over the two cheques in question. Is one to presume that the cheques were a present or a donation to charity. The appellant complainant is flour mill, therefore, it could be said that the mill had supplied flour or some by-product. Even this is not the complainant’s case.
7. The Supreme Court of India in C. Antony v. K. G. Raghavan Nair1, while dealing with a case under Section 138 of the Act, accepted the contention of the accused that he had
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