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2015 Supreme(Del) 206
High Court of Delhi
SUNITA GUPTA, J.
G.L. Sharma – Appellant
Versus
Hemant Kishor & Another – Respondent
CrL.A. Nos. 1400 & 1401 of 2011 & Crl.M.A. Nos. 4776 & 4777 of 2014
Decided On : 13-01-2015
For the Appellant:K.K. Manan, Nipun Bhardwaj, Ravinder, Advocates along with In person.
For the Respondents:Vikash Chandra, S.L. Gupta, Advocates.
The main legal point established in the judgment is the mandatory presumption under Section 139 of the Negotiable Instruments Act, placing the burden of proof on the accused to rebut the presumption in cases of dishonour of cheques.
Headnote:
NI Act - Dishonour of Cheque - Section 138, 139 - Summary of Acts and Sections: The court discussed the provisions of Section 138, 139 of the Negotiable Instruments Act, 1881, which deal with the dishonour of cheques for insufficiency of funds and the presumption in favor of the holder of the cheque. The court emphasized the mandatory presumption under Section 139 and the burden of proof on the accused to rebut the presumption. The court also referred to legal principles established in previous cases such as M/s. Pine Product Industries & Anr. vs. M/s. R.P. Gupta & Sons & Anr., 2007 (99) DRJ 352, to support its decision.
Fact of the Case:
The complainant filed a case under Section 138 of the Negotiable Instruments Act against the accused for dishonour of cheques issued towards repayment of debt. The accused claimed that the cheques were given as security to a Chit Fund Committee and denied receiving any legal notice or taking a loan from the complainant.
Finding of the Court:
The court found that the accused failed to raise a probable defense and did not contest the existence of a legally enforceable debt or liability. The court held that the judgment of acquittal by the Trial Court was erroneous and set it aside, finding the accused guilty of the offense under Section 138 of the Act.
Issues: The issues revolved around the dishonour of cheques, the burden of proof on the accused to rebut the presumption under Section 139, and the sufficiency of the legal notice served by the complainant.
Ratio Decidendi: The court emphasized the mandatory presumption under Section 139 of the Act and the burden of proof on the accused to rebut the presumption. The court also highlighted the importance of the legal notice and the accused's failure to raise a probable defense.
Final Decision: The court allowed the criminal appeals, setting aside the acquittal and finding the accused guilty of the offense under Section 138 of the Act. The accused were directed to pay a sum of Rs.4,50,000/- each within a specified period, failing which they would undergo simple imprisonment for six months.
Sunita Gupta, J.
1. Vide this common judgment, I shall dispose of two appeals bearing Crl.A.No.1400/2011 and 1401/2011 as both the appeals have been filed by an unsuccessful complainant in case relating to offence punishable under Section 138 of Negotiable Instruments Act, 1881 (in short “NI Act”) against the respondents who are mother and son, inter alia, on the allegation that CC No.1953/1/2009 was filed before Additional Chief Metropolitan Magistrate against the accused Hemant Kishore on the ground that the accused, for repayment of his debt liability, issued one cheque bearing No.717470 dated 22nd August, 2008 for Rs.3 lacs drawn on Indian Bank, New Delhi but on presentation, the cheque was returned unpaid with remarks “fund insufficient”. Thereafter, a legal notice dated 16th March, 2009 was issued by the complainant demanding the money but on failure of the accused to pay the amount, the complaint was filed. CC No. 1954/1/2009 was filed against the accused Shobha Saxena on the allegations that cheque bearing No.538942 dated 7.1.2009 amounting to Rs.3,00,000/- drawn on Indian Overseas Bank, New Delhi was issued towards discharge of debt liability which on presentation was dishonoured on 24.4.2009 with remarks ‘funds insufficient’. Legal demand notice dated 6.5.2009 was issued by the complainant demanding the amount. On failure to pay the amount, the complaint was filed. After being satisfied that prima facie case against the accused u/s 138 NI Act was made out, cognizance was taken and accused were summoned. Notice under Section 251 Cr.P.C. was framed against them to which they pleaded not guilty and claimed trial.
2. The complainant examined himself as CW1 by adopting his affidavit Ex.CW1/A and exhibited the following documents:-
(i) Cheque bearing No.717470 dated 22.08.2008 amounting to Rs.3,00,000/- (Rupees Three Lacs only) drawn on Indian Bank, New Delhi as Ex.CW1/1 in CC No.1953/1/2009 and cheque bearing No. 538942 dated 7.1.2009 amounting to Rs. 3,00,000/- drawn on Indian Overseas Bank as Ex.CW1/1 in CC No.1954/1/09.
(ii) Returning memo dated 21.02.2009 with remarks “refer to drawer” as Ex.CW1/2 in CC No. 1953/1/2009 and returning memo dated 24.4.09 with remarks ‘funds insufficient’ as Ex. CW1/2 in CC No.1954/1/2009.
(iii) Legal demand notice dated 16.03.2009 as Ex.CW1/3. Postal dispatch receipt as Ex.CW1/4 and AD card as Ex.CW1/5 in CC No.1953/1/2009 and legal demand notice dated 6.5.2009 as Ex.CW1/3, postal dispatch receipt as Ex.CW1/4, UPC dispatch receipt as Ex.CW1/5 and AD Card as Ex.CW1/6 in CC No.1954/1/2009.
3. All the incriminating evidence was put to the accused while recording their statements under Section 313 Cr.P.C. wherein substantially similar plea was taken. Signatures on the cheque were not denied, however, it was alleged that the cheque was not issued towards any debt or liability. It was a blank signed cheque and was given to Chit Fund Committee as a security. They further denied having taken any loan from the complainant or that any legal notice was received by them. One witness, namely, Rajesh Kumar-DW1 was examined in defence evidence. After referring to the provisions of Section 138, 118 Clause (a), 146 and 139 of NI Act, learned Trial Court observed that a combined reading of these Sections raises a presumption in favour of the holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability. However, the presumption available under Section 139 NI Act can be rebutted by the accused by raising the probable defence and the burden is on the accused. Having said so, the learned Trial Court dismissed the complaint by relying upon M/s. Pine Product Industries & Anr. vs. M/s. R.P. Gupta & Sons & Anr., 2007 (99) DRJ 352, primarily on the ground that the averments made in the complaint are vague in nature and bereft of necessary details and, therefore, acquitted the accused.
4. Assailing the findings of the learned Trial Court, it was submitted
