The sufficiency of evidence in proving the dishonor of a cheque and the applicability of the presumption under Section 139 of the Negotiable Instruments Act, 1881.

JUDGMENT :

Ravindra Maithani, J.

The challenge in this revision is made to the following judgment and orders:-

(i) judgment and order dated 09.08.2017, passed in Criminal Case No. 97 of 2011, Bisht Book Depot Vs. Shiv Kumar Singh, (“the case”), passed by the Court of Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar. By it, the revisionist has been convicted under Section 138 of the Negotiable Instruments Act, 1881 (“the Act”) and sentenced to one year rigorous imprisonment with a fine of Rs. 2,45,000/-. It has further been directed that out of the fine Rs. 2,40,000/- shall be paid to the respondent no. 2, Bisht Book Depot (“the complainant”).

(ii) Judgment and order dated 27.09.2018, passed in Criminal Appeal No. 170 of 2017, Shiv Kumar Singh Vs. Bisht Book Depot & another, by the court of Additional Sessions Judge, Khatima, District Udham Singh Nagar. By it, the judgment and order passed in the case has been confirmed.

2. In this revision, the revisionist has not been appearing. The revision has already been admitted. The law on the revision is well settled that once the revision is admitted, it has to be decided on merits, it cannot be dismissed in non-prosecution. The Court proceeds to decide the revision.

3. The case is based on a complaint, filed under Section 138 of the Act, by the complainant. According to it, the revisionist had agreed to sale his four bigha land to the complainant on 06.08.2010. It was a written agreement. The revisionist received Rs. 5,45,000/-. Subsequently, it was revealed that the revisionist belonged to Tharu Janjati and he could not transfer his land, therefore, the complainant demanded his money. On 15.12.2010, the revisionist gave a cheque of Rs. 1,60,000/- to the complainant, which was presented on 01.02.2011, and, was dishonored with the remark “insufficient funds”. Notice was given and thereafter, after statutory compliance, the complaint was filed. It is the basis of the case. On 01.03.2011, itself, the revisionist was summoned to answer accusation under Section 138 of the Act.

4. The accusation was read over to revisionist under Section 251 of the Code of Criminal Procedure, 1973 (“the Code”). The revisionist had admitted to have given the cheque, but, according to him, it was a security cheque. In this statement, the revisionist told that he had taken a loan of Rs. 1,00,000/- from the complainant. But, despite return of the money, the cheque has not been given back by the complainant.

5. In evidence, on behalf of the complainant, complainant himself appeared as PW1 Subhash Kumar and PW2 Baldev Singh Rawat has also been examined on behalf of the complainant. On behalf of the revisionist, he himself as DW1 and DW2 Mohan Singh have been examined. The revisionist was examined under Section 313 of the Code. He reiterated the version, which he gave at the stage under Section 251 of the Code. After hearing the parties, the revisionist has been convicted and sentenced, by the impugned judgment and order, passed in the case, which has been upheld in the appeal. Hence, the revision.

6. The grounds for revision are as follows:-

(i) Agreement was allegedly made between Subhash Singh Bisht and the revisionist, whereas the cheque was given in the name of Bisht Book Depot, Khatima. This aspect was not examined by the court.

(ii) The complainant did not examine any bank employee to prove that the cheque was dishonored.

(iii) The alleged agreement dated 06.08.2010 was not registered, it was a fabricated document.

(iv) The cheque in-question was a security cheque.

(v) The manner in which Rs. 5,45,000/- was paid to the revisionist has not been disclosed.

(vi) The presumption under Section 139 of the Act has been rebutted, but it was not considered.

7. Learned counsel appearing for the complainant would submit that the revisionist had admitted to have given the cheque. It was in the name of Bisht Book Depot, with whom the revisionist had executed an agreement to sale his property. The complainant