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2013 Supreme(UK) 606
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Alok Singh, J:
Pawan Kumar Saini - Appellant
Versus
Jogendra Kumar – Respondent
Criminal Appeal No. 43 to 45 of 2010
Decided on : 27.04.2013
Advocate Appeared:
Mr. Rajendra Singh, Advocate for the appellant.
Mr. S.K. Agarwal, Sr. Advocate assisted by Mr. S.S. Bhandari, Mr. Sandeep Tandon, Ms. Deepa Arya, Advocate for the respondent.
The statutory presumption in favor of the complainant under Section 139 of the NI Act and the burden of proof to rebut the presumption by the accused.
Headnote:
Cheque Dishonour - Loan Transaction - NI Act, Section 138, Section 139
Fact of the Case:
The accused, a contractor and maternal uncle of the appellants, received a loan from the appellants. Subsequently, the cheques issued by the accused were dishonoured, leading to legal action by the appellants.
Finding of the Court:
The court found that the statutory presumption in favor of the appellants, as provided under Section 139 of the NI Act, was not rebutted by the accused. The court also held that the complaint under Section 138 of the NI Act is maintainable even if the cheque is dishonoured due to the closure of the account.
Issues: The issues involved the maintainability of the complaint under Section 138 of the NI Act and the burden of proof for rebutting the presumption under Section 139.
Ratio Decidendi: The court relied on the statutory presumption in favor of the appellants under Section 139 of the NI Act, emphasizing that the burden of proof to rebut the presumption lies with the accused. The court also interpreted the provisions of Section 138 and Section 139 in light of relevant precedents.
Final Decision: The court allowed the appeals, setting aside the judgments and orders passed by the Appellate Court and restoring the judgments and orders passed by the Judicial Magistrate in favor of the appellants.
1. Since in all these three appeals identical questions of facts and law are involved, therefore, all the three appeals are being taken up together and disposed of by this common judgment.
2. Brief facts of the present case, inter alia, are that accused respondent is maternal uncle of appellant Pawan Kumar Saini; appellant Sudesh Saini is wife of Pawan Kumar Saini and appellant Tek Chand is father-in-law of Pawan Kumar Saini. Accused respondent was a contractor and he demanded Rs. 60,00,000/- for the business purpose on loan from appellants. Keeping in mind close relationship with the accused respondent, appellants Pawan Kumar Saini, Sudesh Saini and Tek Chand handed over Rs. 6,00,000/-, Rs. 4,00,000/- and Rs. 10,00,000/- to the respondent on 02.09.2004. Thereafter, on different dates, appellant Pawan Kumar Saini gave Rs. 25,00,000/- to the accused respondent while Tek Chand gave Rs. 30,00,000/- and Smt. Sudesh Saini gave Rs. 12,00,000/- to the accused respondent till 01.05.2006.
3. To win over the confidence of the appellants, accused respondent agreed to open joint account in the name of appellant Pawan Kumar Saini. Joint account was opened in the name of accused respondent and appellant Pawan Kumar Saini. Pawan Kumar Saini and accused respondent started working together in different contract projects. At the time of demanding loan, accused respondent agreed to return the entire amount to the appellants along with 15% profit of different contract projects taken by him. Thereafter, on demand being made by the appellants to return to the borrowed money, accused respondent handed over two cheques to appellant Pawan Kumar Saini on 28.06.2006. One cheque dated 22.07.2006 of Indian Overseas Bank, Jwalapur Branch was amounting to Rs. 10,00,000/- while another cheque was of Rs. 10,80,000/- bearing cheque no. 805459 of State Bank of India, Roorkee Branch dated 21.07.2006. Appellant Pawan Kumar Saini got the payment of Rs. 10,00,000/- of the aforesaid cheque of Indian Overseas Bank, Jwalapur Branch, however, cheque amounting to Rs. 10,80,000/- was returned on 25.07.2006 with an endorsement “ACCOUNT IS CLOSED”.
4. Thereafter, appellant Pawan Kumar sent a legal notice dated 08.08.2006 by registered AD on the correct address of accused respondent, which was returned on 21.08.2006. Thereafter, Pawan Kumar Saini lodged a complaint case no. 1807 of 2006 in the court of Judicial Magistrate, Roorkee.
5. Accused respondent handed over cheque no. 805460 of State Bank of India, Roorkee, Branch dated 22.07.2006 of Rs. 8,30,000/- to the appellant Smt. Sudesh Saini which was returned by the Bank on 25.07.2006 on the ground “ACCOUNT IS CLOSED”. Thereafter, appellant Sudesh Saini sent a legal notice by registered AD on 08.08.2006, which was returned unserved on 21.08.2006. Thereafter, appellant Sudesh filed a complaint case against the respondent / accused in the court of Judicial Magistrate, Roorkee bearing no. 2024 of 2006.
6. Accused respondent handed over cheque no. 741600 of State Bank of India, Roorkee dated 01.05.2006 to Tek Chand on 11.08.2006 of Rs. 30,00,000/-, which was returned by the Bank on 21.08.2006 on the ground “ACCOUNT IS CLOSED”. Thereafter, appellant Tek Chand issued a legal notice to respondent accused on 30.08.2006 by registered AD, which was also returned unserved on 07.09.2006. Consequently, appellant Tek Chand preferred a complaint case no. 2527 of 2006 in the court of Judicial Magistrate, Roorkee.
7. Complaint filed by appellant Pawan Kumar Saini bearing complaint case no. 1807 of 2006 was disposed of vide judgment and order dated 18.09.2008 passed by Judicial Magistrate, Roorkee holding that respondent accused guilty for the offence punishable under Section 138 of NI Act and sentencing him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 5000/- and in default of making payment of fine to undergo additional imprisonment of three months; accused respondent was also directed to pay a
