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2018 Supreme(J&K) 359
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
Gurnam Singh and Another – Petitioners
Versus
Sudershan Kumar Gupta – Respondent
CRMC No. 169 of 2014 and MP No. 192 of 2014
Decided On : 03-07-2018
For the Petitioner: Mr. Narinder Kumar Attri.
For the Respondent: Mr. Anil Khajuria.
The burden of proof on the accused to rebut the presumptions in favor of the holder of the cheque and the transformation of civil liability into criminal liability under restricted conditions.
Headnote:
Section 138 - Dishonor of Cheque - Act 1881 - Summary of Acts and Sections: Act 1881, Section 138, Section 139, Section 118, Section 20, Section 6, Section 5, Section 13, Section 87 - The court discussed the essential elements of the offence under Section 138 of the Act, the presumptions in favor of the holder of the cheque under Sections 118(a) and 139, the burden of proof on the accused to rebut these presumptions, and the validity and enforceability of inchoate instruments. The court also examined the definition of a cheque, the signing of the cheque as an essential feature, and the implications of a signed blank cheque with unfilled material particulars. The judgment emphasized the strict construction of Section 138 NI Act and the transformation of civil liability into criminal liability under restricted conditions.
Fact of the Case:
The petitioners sought quashment of an order passed by the Court of Sessions Judge, Kathua, related to a complaint under Section 138 of the Negotiable Instrument Act, 1881, for dishonor of a cheque. The petitioners argued that the order was against the law and facts of the case, causing miscarriage of justice.
Finding of the Court:
The court found no infirmity in the orders of the lower courts, dismissing the petition and emphasizing the accused's attempt to protract the trial without sufficient reasons. The court highlighted the burden of proof on the accused to rebut the presumptions in favor of the holder of the cheque and the validity of inchoate instruments.
Issues: The issues involved the quashment of the order related to a complaint under Section 138 of the Act, the burden of proof on the accused, and the validity of inchoate instruments.
Ratio Decidendi: The court emphasized the strict construction of Section 138 NI Act, the burden of proof on the accused to rebut the presumptions in favor of the holder of the cheque, and the transformation of civil liability into criminal liability under restricted conditions.
Final Decision: The petition was dismissed with no order as to costs.
1. In the instant petition filed under Section 561-A Cr. P.C. petitioners seek quashment of the order dated 10.5.2014 passed by the Court of learned Sessions Judge, Kathua, by virtue of which the revision petition filed by the petitioners against the order dated 12.2.2014 passed by learned Judicial Magistrate 1st Class, Kathua, in a petition for calling expert report with regard to the amount figured and name written as Sudershan Kumar Gupta in cheque no. 7677310 dated 17.1.2007, has been dismissed.
2. In this petition, it has been stated that order impugned is against the law and facts of the case, thereby causing miscarriage of justice. Courts have failed to exercise the jurisdiction, as such; the same deserves to be quashed. That cheque, if entrusted to somebody in blank as security and any inscription thereon by a person entrusted with cheque does amount to misappropriation of property, so order of courts below are illegal. That M/s Chowdhary Enterprises was sealed by Punjab National Bank on 10.11.2005 and cheque in question pertains to Cheque-Book issued in 2001, as such, it becomes more important as to who inscribed the cheque.
3. I have considered the submission. Petitioners have reiterated all grounds taken in this petition and has relied upon 2013 (2) Crimes 649 (Raj) case titled Hanuman Sahay Sharma vs. Manish Dhamani, wherein it is held that where a contention is raised that complainant has misused the cheque then prayer of accused for sending the cheque to handwriting expert for its examination deserves to be considered.
4. From the perusal of pleadings, it is evident that the respondent had filed a complaint under Section 138 for dishonor of cheque No. 7677310 dated 17.01.2007, of the Negotiable Instrument Act, 1881 (hereinafter referred to as the Act) against petitioners, which is pending disposal before the Court of Judicial Magistrate, Kathua titled, Sudershan Kumar Gupta vs. Gurnam Singh and Another.
5. That during currency of proceeding, petitioner herein filed a petition for calling hand writing expert with regard to the amount figured as well name written as Sudershan Gupta. Trail court dismissed the petition on 12.2.2014 on the ground that petitioner accused has not denied his signature, so it is not necessary to see as to who has filed body of cheque. A revision petition was filed by petitioner, which too was dismissed on same ground while relying on judgment in case titled P.S.A. Thomarthan vs. Dalmia Cements (B) Ltd. 2005 (1) DCR 85.
6. For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
“1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.”
7. The Act raises two presumptions in favour of the holder of the cheque. Firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
8. Section 118 of the N.I Act provides:
“Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made (a) of consideration- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed,
