The onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused, and the fact that the cheque might be post-dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act.

JUDGMENT :

Manoj Kumar Ohri, J.

By way of present revision petition, the petitioner has assailed the judgment dated 29.01.2016 passed by Special Judge-07 in Crl. Appeal No. 02/15 whereby petitioner's conviction under Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act) has been upheld.

2. Vide judgment dated 20.04.2015, the petitioner was convicted by the trial court and vide order on sentence dated 23.04.2015, he was directed to pay fine of Rs.25 lacs, out of which Rs.24 lacs was to be paid to the complainant towards compensation under Section 357(1) Cr.PC and the remaining amount of Rs.1 lakh was to be deposited with the State, and in default of payment of fine, the petitioner was directed to undergo SI for three months.

3. Learned counsel for the petitioner contended that the petitioner was employed with the complainant. The petitioner used to collect the payments on behalf of the complainant from his clients, who was also dealing in the business of real estate as well as shares. As the petitioner used to collect payments at the instance of the complainant, the petitioner was asked to give blank cheque to the complainant as security, which was subsequently filled up by the complainant to initiate the present proceedings. Learned counsel for the petitioner primarily submitted that the petitioner had been able to rebut the presumption under Section 139 of the Act and in this regard relied upon the testimony of the complainant to submit that the complainant has failed to prove the loan transaction.

4. In support of his submission, learned counsel for the petitioner referred to the following three questions which were put to the complainant during his cross-examination:

"(1) Whether the loan was given in cash or by cheque?

(2) Whether the loan was given as a lump sum or in installments?

(3) Whether the loan was given by way of formal or informal agreement?"

Learned counsel for the petitioner submitted that the answers to all of the above questions were vague as it was replied by the complainant that he did not remember, which created doubt about the existence of any debt. He also denied the existence of any legally enforceable debt on the alleged date. He further submitted that the impugned cheque dated 05.08.2011 was not given by the petitioner towards any legally enforceable debt but was rather given as a security. Learned counsel has also submitted that the loan receipt was forged as he denied the handwriting on the said loan receipt.

5. Per contra, learned counsel for respondent no.2 submitted that initially a loan of Rs.15 lacs was given by the complainant to the petitioner in the year 2008. The petitioner also executed a "loan receipt" dated 13.10.2008 in this regard. He further submitted that another loan of Rs.5 lacs was advanced to the petitioner in the year 2010. The petitioner issued the impugned cheque of Rs.20 lacs in favour of the complainant which, on presentation, got dishonoured on account of "insufficient funds". It was further submitted that concurrent findings of facts have been recorded by both the trial court as well as the appellate court. Learned counsel in support of his submissions, has relied upon judgments titled Rangappa vs. Sri Mohan, (2010) 11 SCC 441 and Hiten P Dalal vs. Bratindranath Banerjee, (2001) 6 SCC 16.

6. I have heard the learned counsel for the parties and have gone through the entire material placed on record.

7. During the trial, at the time of framing of notice under Section 251 Cr.P.C. on 19.05.2012, petitioner's statement was recorded wherein he admitted that the impugned cheque belonged to his bank account. He also admitted his signatures on the cheque though he claimed that the particulars in the cheque have been filled up by another person. He also admitted the signatures on the "loan receipt" which was exhibited as Ex. CW1/1. He denied only a portion of the said "loan receipt", where interest to be paid @ 2% was mentioned. The said "loan receipt" is reproduced herein:-