The main legal point established in the judgment is the presumption of liability on the drawer of the cheque under Section 139 of the Negotiable Instruments Act, 1881, and the burden of proof on the accused to rebut this presumption.

JUDGMENT :

Vikas Bahl, J.

1. Challenge in the present Criminal Revision is to the judgment dated 07.09.2017 passed by the Chief Judicial Magistrate, Gurdaspur, vide which the petitioner had been convicted under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as “the Act of 1881”) and had been sentenced as under :-

2. The period of detention already undergone by the convict, during trial of this case shall be set off against the substantive sentence. File be consigned to the record room, Gurdaspur, after due indexation.”

3. Challenge has also been made to the judgment dated 06.12.2021 vide which the appeal preferred by the petitioner had been dismissed by the Sessions Judge, Gurdaspur and the conviction had been upheld.

4. The brief facts of the prosecution case are that the petitioner had taken a loan from the respondent-HDFC Bank Limited which was to be repaid alongwith the interest as per the terms and conditions of the agreement. The said amount was duly received in the account of the petitioner and as on 10.08.2016, an amount of Rs.16,48,026.44 was due from the petitioner and the cheque duly signed by the complainant dated 22.08.2016 for an amount of Rs.14,78,000/- was issued by the petitioner in favour of the complainant bank. The said cheque was presented before the Bank and was dishonoured with the remarks "Funds Insufficient" vide memo dated 05.09.2016. Legal notice dated 12.09.2016 was issued by the complainant through their counsel but in spite of the same, the petitioner had failed to make the payment and thus, complaint under Section 138 of the Act of 1881 was filed by the complainant.

5. The complainant-Bank had examined one Harminderpal Singh as CW1 who had fully supported the case of the complainant-Bank and had also produced on record cheque as Ex.C2, Memo dated 05.09.2016 as Ex.C3, Legal notice dated 12.09.2016 as Ex.C4 and postal receipt dated 12.09.2016 as Ex.C5 and also Statements of Account as Ex.C6 and Ex.C7.

6. The trial Court had convicted the petitioner under Section 138 of the Act of 1881 and sentenced him, as has been detailed hereinabove.

7. The Sessions Judge, Gurdaspur had also dismissed the appeal preferred by the petitioner and while dismissing the appeal, the Sessions Judge, Gurdaspur had observed that it had not been disputed by the petitioner that the petitioner had availed a loan and that Statement of Account Ex.C6 showed that an amount of Rs.16,48,026.44 was due as on 10.08.2016 from the petitioner and, thus, the cheque was issued for the repayment of a legally enforceable debt. It was further observed that the petitioner had not disputed his signatures on the cheque Ex.C2 and under Section 139 of the Act of 1881, there is a presumption in favour of the holder of the cheque and the same was received for the discharge of the whole or in part of any debt or liability unless the contrary had to be proved by the petitioner. The argument to the effect that the present cheque was a security cheque was rejected by relying upon the judgment of the Delhi High Court in case titled as M/s Constellation Enterprises Pvt. Ltd. & Anr. Vs. P.E.C. Limited, reported as 2006(127) DLT 733. It was further observed that the petitioner had failed to repay the loan installments and, thus, it was open to the complainant to encash the cheque and on the dishonour of the said cheque, to institute proceedings under Section 138 of the Act of 1881. It was also observed that the legal notice had been duly issued and the complaint had been filed within a period prescribed.

8. Learned counsel for the petitioner has submitted that in the present case, no agreement had been produced on record by the complainant-