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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mrs. Justice Anita Chaudhry
CRM-A-3-MA of 2011 (O&M)
Anjali Kukar
v.
M.M. Lal Chhabra
{Decided on 21/12/2015}
Dishonour of Cheque--Notice--The true spirit behind has to be gathered--The notice was drafted by the lawyer and often unnecessary words change the sense--It is not desirable to give undue emphasis to it.
(A) Negotiable Instruments Act, 1881, S.138--Dishonour of Cheque--Counsel Fee--Lawyer was engaged for filing bail application in Session Court and in case of failure, in High Court--Cheque of Rs.44,000/- was issued for complete assignment--After dismissal of application in Session Court, client engaged another lawyer without any intimation to earlier lawyer--Client initially showed ignorance of issuing any cheque and took contradictory stand at various stages--Client had also filed complaint against complainant before Bar Council and Chief Justice--However, client admitted that date and name of payee were written by him and also admitted his signatures--Cheque was dishonoured due to insufficient funds and not for ‘stop payment’--All efforts of reconciliation failed--Client failed to discharge the presumption or raise on probable defence--However, keeping in view circumstances of client direction issued to pay double the cheque amount as compensation to the complainant/counsel--Acquittal set aside. (Paras 31 & 33)
(B) Negotiable Instruments Act, 1881, S.138--Dishonour of Cheque--Counsel Fee--Client failed to rebut the presumption or raise a probable defence--Client directed to pay double the amount of cheque as compensation to counsel.
(C) Negotiable Instruments Act, 1881, S.138--Dishonour of Cheque--Notice--The true spirit behind has to be gathered--The notice was drafted by the lawyer and often unnecessary words change the sense--It is not desirable to give undue emphasis to it. (Para 26)
(D) Negotiable Instruments Act, 1881, S.139--Dishonour of Cheque--Presumption of Debt--Once there is an admission regarding the signatures then Section 139 of the Act mandates that the cheque pertained to a legally enforceable debt and the presumption is of a rebuttable nature and the onus had shifted on the accused is not probable defence. (Para 23)
(E) Negotiable Instruments Act, 1881, S.138--Dishonour of Cheque--Handwriting Expert Report--Handwriting Expert gave a report saying that the signatures and date were in the hand of the accused but he did not care to examine or compare the handwriting of the complainant with the disputed portion of the cheque--There is no explanation either--Therefore, it can be said that the report was incomplete. (Para 27)
(F) Negotiable Instruments Act, 1881, S.138--Dishonour of Cheque--Security Cheque--It is an acknowledgment of liability on the part of the drawer that the cheque holder may use the security as an alternate mode of discharging his liability--Even if, it is taken that it was a security cheque then the accused had made himself liable as he had not sent any payment to the complainant subsequently. (Para 29)
Under Section 138 of the Negotiable Instruments Act, the primary focus is on whether the cheque was issued in discharge of a legally enforceable debt or liability and whether it was dishonoured due to insufficient funds or other reasons. Once the signatures are admitted or proved, a presumption of liability arises, shifting the onus onto the accused to rebut this presumption by raising a probable defence (!) (!) .
Regarding the accused's stand or defence, the law recognizes that the accused can present a defence, such as claiming that the cheque was issued as a security or that it was misused or forged. However, the defence must be probable and credible. Contradictory or inconsistent versions at different stages of the case can weaken the defence's credibility. It is not explicitly prohibited for the accused to take different stands, but the defence's plausibility and consistency are critical. If the defence is found to be inconsistent, unsubstantiated, or a mere afterthought, it may not be deemed a probable defence to rebut the statutory presumption (!) (!) (!) (!) .
In essence, while the law does not outright prohibit the accused from presenting contradictory or changing defence positions, such contradictions can undermine the defence's credibility and may result in the presumption of liability remaining unrebutted. The court evaluates whether the defence raised is probable and whether it effectively challenges the presumption of debt or liability. If it is not credible or is contradicted by other evidence, it may not be sufficient to rebut the presumption under Section 138 (!) (!) (!) .
Therefore, the law does not categorically bar contradictory stand by the accused, but the defence's plausibility and consistency are essential. A contradictory stand may not be allowed to the extent that it fails to constitute a probable or credible defence, especially if it appears to be an afterthought or is contradicted by other evidence.
Mrs. Anita Chaudhry, J.: - Delay condoned. Leave to appeal is granted. CRA-AS-195-2015 has been assigned by the Registry.
CRA-AS-195-2015
1. This appeal is by a lawyer who is pitted against her client. The cheque given by the client had bounced which led to the filing of a complaint under the Negotiable Instruments Act.
2. It would be apposite to give the necessary facts to appreciate the contentions raised on merits. MML Chhabra and his son were named in FIR no.147 registered on 29.03.2003, at Police Station Sector 39, Chandigarh under Sections 406, 498-A IPC, lodged by the daughter-in-law. The respondent at that point was the General Manager in RBI, posted at Mumbai. The daughter-in-law had named her husband Manish, her mother-in-law and father-in-law. The respondent through an acquaintance approached the complainant for filing anticipatory bail applications. Two separate applications were filed through the appellant. The application filed on behalf of the respondent was dismissed on 30.09.2003. Seven days notice was ordered to be given by the Investigating Officer in case the Investigating Officer wanted to arrest the respondent. A separate application had been filed on behalf of Manish which came up for hearing on 01.10.2003 and was dismissed.
3. Reverting to the present appeal, the appellant filed a complaint under the Negotiable Instruments Act as the cheque given by the respondent was dishonoured. A statutory notice was given. The respondent failed to pay. The complaint was filed on 04.03.2004. The complainant had pleaded that the accused had given her a cheque of Rs.44,000/- towards the discharge of his liability and there were insufficient funds in the account and he had prior knowledge that the cheque would not be honoured. The notice was sent by registered post. The accused sent his reply through courier and also through email.
4. Before proceeding further, it is necessary to refer to the notice and the contents thereof. The relevant paragraphs are reproduced below:-
1. That you had engaged my client as a counsel to apply for anticipatory bail for you, your younger son, your wife and your elder son Mr. Manish Chhabra and she filed and appeared on your behalf in the court of Sh. B.S. Baswana, Addl. Sessions Judge, Chandigarh.
2. That in the bail application filed on your, your wife and younger son’s behalf orders were passed for giving a week’s notice before arresting any one of you and the application filed on behalf of your son Manish Chhabra was dismissed.
3. That ‘thereafter’, you had given power of attorney to my client to file bail applications in the Punjab and Haryana High Court for the purpose of anticipatory bail as well as quashing of the FIR.
4. That for that purpose, you had issued a cheque for Rs.44,000/- bearing No.350164, dated 17.09.2003 drawn on account No. 0601000044784 SB A/c drawn on HDFC Bank Ltd. Ground Floor, Maneck Ji Wadia Building (Kala Patru Haritage), Nanik Motwani Marg, Fort, Mumbai-400023, Maharashtra.
5. In response to the notice, the accused sent his response stating that the notice was an abuse of the process of law and the lawyer was trying to blackmail him and cheat him in the transaction. It was pleaded that each page of the notice had not been signed and he was not able to make out as to what it wanted to convey and he did not remember issuing any cheque to her and if they had any photocopy of the same, it should be sent to him and he owned no amount to Anjali Kukar nor any cheque was issued by him in her name. It would be necessary to refer to some of the paragraphs of the reply:-
6. There is a reference to some anticipatory bail applications filed by my family members and me whereas no such authenticated copy of anticipatory bail applications has been made available to us. Please send me a copy thereof urgently, duly authenticate.
7. There is reference to some orders passed by Sh. B.S. Baswana, Addl. Sessions Judge, Chandigarh regarding anticipatory bail applications all
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