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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Ravindra Maithani, J.
Dinesh Bhatt - Revisionist
Versus
Ganendrapal Singh Parmar and others - Respondents
Criminal Revision No. 427 of 2018
Decided On : 12-06-2024
Negotiable Instruments - Criminal Case - Section 138, 118, 139 - The court affirmed the conviction under Section 138 of the Negotiable Instruments Act, emphasizing the presumption of liability and the burden of proof on the accused to establish a defense.
Fact of the Case:
The revisionist was convicted under Section 138 of the Negotiable Instruments Act for issuing dishonored cheques after receiving a loan of Rs. 12,50,000. The respondent's complaint was based on the dishonor of three cheques given as repayment.
Finding of the Court:
The court found that the respondent proved the issuance of cheques and the loan agreement, while the revisionist failed to provide sufficient evidence to rebut the presumption of liability under the Act.
Issues: Whether the revisionist could successfully rebut the presumption of liability under Section 139 of the Negotiable Instruments Act and whether the conviction was justified.
Ratio Decidendi: The court held that once the execution of the cheque is admitted, a presumption arises that it was issued for a debt, and the burden lies on the accused to prove otherwise.
Result: The conviction under Section 138 is confirmed, but the sentence is reduced to three months of imprisonment.
JUDGMENT :
Ravindra Maithani, J.
The challenge in this revision is made to the followings:-
(ii) Judgment and order dated 26.11.2018 passed in Criminal Appeal No. 19 of 2018, Dinesh Bhatt v. Ganendrapal Singh Parmar and another, by the court of Sessions Judge, Uttarkashi. By it, the appeal has been dismissed and the conviction and sentence as recorded in the case affirmed.
2. Heard learned counsel for the parties and perused the record.
3. The case is based on a complaint made under Section 138 of the Act filed by Ganendrapal Singh Parmar (“the respondent”) against the revisionist. The respondent died during pendency of the revision. His son has been arrayed as the respondent no. 1/1. It is the case of the respondent that on 28.10.2016, he had advanced a loan of Rs. 12,50,000/- to the revisionist. The revisionist gave three cheques to the respondent of Rs. 5,00,000/-, Rs. 5,00,000/- and Rs. 2,50,000/- respectively. When the cheques were presented before the bank, they were dishonoured. A notice was issued to the revisionist by the respondent, but despite service of the notice, the revisionist did not pay the amount. Therefore, the complaint was filed.
4. After inquiry under Section 200 of the Code of Criminal Procedure, 1973 (“the Code”), by an order dated 27.01.2017, the revisionist was summoned to answer the accusations under Section 138 of the Act. He was read over the accusations. The revisionist admitted that he had given blank cheques in the year 2012. The revisionist, at that stage, had stated that he had returned the loan amount but despite that the cheques were not returned to him and the respondent told it to the revisionist that the cheques are missing and he would locate them and then return them to the revisionist. Thereafter, false case has been lodged against the revisionist pertaining to the cheque amount.
5. The respondent adduced evidence in the case. He is the only witness in the case. Documents have also been filed by the respondent.
6. After evidence, the revisionist was examined under Section 313 of the Code. In answer to query No. 4, at that stage, the revisionist had stated that he had returned the amount pertaining to the cheques but the cheques were not returned to him.
7. After hearing the parties, by the impugned judgment and order dated 08.08.2018 passed in the case, the revisionist has been convicted under Section 138 of the Act and sentenced as stated hereinbefore, a judgment, which is confirmed in the appeal.
8. Learned counsel for the revisionist would submit that the respondent has failed to prove his case beyond reasonable doubt. He would also raise the following points in his submissions:-
(ii) The respondent was not having financial capacity to advance such a huge loan to the revisionist.
(iii) The respondent was not an income tax payee.
(iv) There is no promissory note executed between the parties.
(v) In para 11 of the judgment and order dated 08.08.2018 passed in the case, the court has doubted the prosecution case. But, still convicted the revisionist.
9. Learned counsel for the revisionist would submit that the revisionist may take all probable defences; the defences need not be proved beyond reasonable doubt; it may be proved by preponderance of probab
The presumption of liability under Section 139 of the Negotiable Instruments Act is rebuttable, placing the burden on the accused to prove a defense by preponderance of probabilities.
The presumption under Sections 118 and 139 of the Negotiable Instruments Act remains in favor of the holder unless the accused provides credible evidence to rebut it.
Upon issuance and signature of a cheque, the statutory presumption under Section 139 of the Negotiable Instruments Act shifts the onus to the accused to prove absence of debt; a security cheque is en....
Dishonoured cheque attracts presumption of lawful debt under NI Act unless rebutted by accused on preponderance of probabilities; failure justifies conviction even for security cheque with subsisting....
A cheque issued as security can be subjected to Section 138 liabilities; presumption under Section 139 requires the accused to establish a probable defence for avoidance of conviction.
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