Crl.Rev.P./409/2018
2021 Latest Caselaw 259 Gua

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GAHC010234132018




                                THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          CRIMINAL REVISION PETITION NO. 409 of 2018




       Iman Ali, aged about 39 years,
       S/o Late Mohammad Ali,
       R/o Village - Banbahar, P.S.-Barpeta,
       P.O.- Kayakuchibazar, PIN-781352,
       District - Barpeta, Assam.
                                                                        ...... PETITIONER.
                              -Versus-


  1.    State of Assam
       Represented by the Public Prosecutor, Assam.


  2.    Satish Harizon,
       Son of Laxman Harizon,
       R/o village- Banbahar, P.S.-Barpeta,
       P.O.-Kayakuchibazar, PIN- 781352,
       District - Barpeta, Assam.,


                                                                       ...... RESPONDENTS.

   Advocate appeared for the petitioner          : Mr R Ali.


   Advocates appeared for the respondents       : Mr M K Nath.
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                                  AND


                       CRIMINAL REVISION PETITION NO. 451 of 2018


     Sri Satish Harizon,
     S/o Laxman Harizon,
     R/o Village - Banbahar, P.S.-Barpeta,
     P.O.- Kayakuchibazar, PIN-781352,
     District - Barpeta, Assam.
                                                                     ...... PETITIONER.
                           -Versus-




 1. Iman Ali, aged about 39 years,
     S/o Late Mohammad Ali,
     R/o Village - Banbahar, P.S.-Barpeta,
     P.O.- Kayakuchibazar, PIN-781352,
     District - Barpeta, Assam.


3.    State of Assam
     Represented by the Public Prosecutor, Assam.


                                                                    ...... RESPONDENTS.



 Advocate appeared for the petitioner          : Mr M K Nath.
 Advocates appeared for the respondents       : Mr R Ali.
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                                            BEFORE
                      HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN


Date of Hearing                        : 19.01.2021


Date of Judgment                       : 28.01.2021




                              JUDGEMENT AND ORDER (ORAL)

Heard Mr R Ali, learned counsel for the petitioner in Criminal Revision Petition No. 409/2018 (respondent in Criminal Revision Petition No. 451/2018). Also heard Mr M K Nath, learned counsel for the petitioner in Criminal Revision Petition No. 451/2018 (respondent in Criminal Revision Petition No. 409/2018).

2. Md Iman Ali (hereinafter, referred as complainant), who is a businessman by profession, lodged a complaint, which was registered as CR Case No. NI 24/2016, under Section 138 of the NI Act, to the effect that Satish Harizan (hereinafter, referred as accused), who is a teacher, belongs to the same locality, approached him for lending him a temporary loan of Rs. 9,00,000/- (Rupees Nine Lakhs only) for his urgent needs, on 13.09.2015, with a promise to return the same within 3 (three) months. Accordingly, on 20.09.2015, the amount was paid to him. Thereafter, on 15.12.2015, accused came to the house of the complainant and delivered a cheque, bearing No. 41224 dated 15.12.2015, amounting to Rs. 9,00,000/- (Rupees Nine Lakhs only), in favour of Md Iman Ali, towards such repayment of the loan. The cheque was to be drawn from the SBI, Barpeta Branch, bearing Account No. 11057310379. The above cheque was deposited in his SBI Account at Kayakuchi Branch for encashment on 08.02.2016. But the cheque was dishonoured due to insufficiency of fund in the account of the accused and cheque was returned to the complainant. A legal notice was issued by the complainant on 17.02.2016, asking the accused for repayment of the loan amount, which was duly served upon him on 08.03.2016. The accused although sought time for depositing the amount in the bank over telephone, but as he failed to do so, the aforesaid complaint was Page No.# 4/12

filed. Court took cognizance of offence under Section 138 of the NI Act.

3. Pursuant to the service of notice, the accused appeared and contested the case and denied the charge. Both the parties adduced oral and documentary evidence in support of their plea. At the conclusion of the trial, learned Magistrate on the basis of the evidence on record, held the accused guilty under Section 138 of the NI Act by impugned judgment dated 24.07.2018 and sentenced him to SI for one year, with a direction to pay compensation double the cheque amount of Rs. 9,00,000/-, under Section 357 (3) CrPC, in default, SI for one year.

4. On the appeal preferred by the accused petitioner, the learned appellate Court finding no any infirmity and illegality in the judgment of the learned trial Court, while maintaining the conviction modified the sentence. The learned appellate Court maintained the sentence of SI for 1 year and the compensation part was set aside, holding that the Magistrate seemed to have given double punishment to the accused, by awarding both imprisonment and double the cheque amount, which appears to be harsh. The learned appellate Court was of the view that the learned trial Court has erred in awarding sentence of 1 year in default of compensation, which is violative of Section 30 CrPC, which provides that where the imprisonment has been awarded under the substantive sentence, it shall not exceed one- fourth of the term of the imprisonment, which the Magistrate is competent to inflict as punishment for the offence, in default of fine. The learned appellate Court was also of the view that the Magistrate committed an illegality in awarding 1 year SI in default of compensation, which is not sustainable and also lost sight of the capacity of the accused to make huge compensation, vide judgment and order dated 13.09.2018, in CA No. 10/2018.

5. The complainant, challenging the legality and validity of the order, has preferred the Criminal Revision Petition No. 409/2018, contending that the learned appellate Court has committed grave error by setting aside the compensation by maintaining sentence under Section 138 of the NI Act. It is further contended that the learned Magistrate has the discretion to impose imprisonment or fine as compensation or both, but the learned appellate Court has set aside the entire compensation illegally causing serious prejudice to the Page No.# 5/12

complainant. The respondent accused, who is a Headmaster of a school and also running business of bamboo-mat, has the capacity to pay compensation, as awarded. A prayer has been made to modify the order of the appellate Court, by directing the accused petitioner to pay the compensation along with the cost of litigation.

6. On the other hand, the accused petitioner preferred the Criminal Revision Petition No. 451/2018, challenging the order of the appellate Court, which has confirmed the sentence awarded by the learned trial Court, on the ground that both the forums have failed to appreciate the matters on record and the evidence of defence side and arrived at a wrong finding. It contends that sentence of imprisonment is also illegal, arbitrary and bad in law, inasmuch, as when the liability part is set aside. It further contends that the learned trial Court has miserably failed to decide as to the business transaction between the parties, which has raised the occasion for granting loan by the accused person, on the part of complainant as well as source of income of the complainant was also not proved to pay such huge amount of loan to the accused person, who is a stranger to the complainant. Further, it contends the cheque in question was not issued to the complainant, rather it was issued to one Shahidur Rahman by executing a document, Exhibit-A. For non-appreciating matter in proper perspective of law, the findings of both the forums stated to be bad in law and prayed to set aside the same.

7. I have considered the rival submissions by both the parties and also gone through the impugned judgment and order(s) of both the Courts. So far as the revision preferred by the accused person, it is against concurrent findings of both the forums. The scope and ambit of the revisional jurisdiction is well settled that in exercise of revisional jurisdiction, the High Court will not interfere into the concurrent factual findings, unless there is perversity and apparent illegality in the orders. The revisional Court cannot re-analyse and re-interpret the evidence on record.

8. Now, having regard to the challenge made in the present revisions as to the findings of the learned appellate Court, let us appreciate the findings of the Courts below, whether it suffers from any illegality, infirmity as well as perversity, calling for interference. The bone of Page No.# 6/12

contention of the learned counsel for the accused petitioner that the learned trial Court has failed to appreciate the evidence that the cheque in question was not issued to the complainant, but to one Saidur Rahman and that the source of income of the complainant was not proved as he has not produced the income tax return etc., that the word in the cheque "lakh" was wrongly written, which indicates fraud on the part of the complainant and on wrong appreciation, compensation has also been awarded.

9. Learned counsel for the petitioner/complainant has, however, refuted all the contentions of the learned counsel for the respondent that the learned trial Court has appreciated the evidence adduced by both the parties in proper perspective of law and there is no necessity to prove the source of income and to produce income tax return in support of his case, under Section 138 NI Act, while the signature of the accused in the cheque is not at all disputed. The plea of the accused that the cheque was issued to one another person is not at all proved by his own witness/DW-4 and the accused petitioner failed to rebut the presumption under the law by cogent evidence. It is urged by the learned counsel for the petitioner/complainant that in a wrong notion of law, the learned appellate Court has set aside the compensation properly awarded by the learned trial Court, which needs to be corrected.

10. Learned counsel for the accused petitioner, placing reliance upon the decision of (2015) 1 SCC 99; K Subramanian -Vs- K Damodara Naidu; and (2019) 5 SCC 418; Basalingappa -Vs- Mudibasappa, it has been submitted that in a case under Section 138 NI Act, when the legally recoverable debt is not proved as the complainant could not prove the source of income from which alleged loan was made to the accused, the presumption in favour of holder of cheque stood rebutted. It is held in Basalingappa (supra), that while the prosecution must prove its case beyond reasonable doubt, the standard of proof so as to prove the defence on the part of the accused is preponderance of probabilities. The inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also referring to the circumstances, upon which, accused relied.

11. On the other hand, the learned counsel for the petitioner/complainant has relied on a Page No.# 7/12

recent decision of Bir Singh -Vs- Mukesh Kumar; (2019) 4 SCC 197, which has laid down the law on the proposition, how the presumption can be rebutted. It is held in the decision that presumption under Section 139 NI Act is rebuttable and onus lies on the drawer to rebut it by adducing cogent evidence to the contrary. This presumption is not in conflict with human rights of presumption of innocence of accused, which prosecution is required to dislodge by proving its case beyond reasonable doubt. Further, it is held that the presumption under Section 139 is a presumption of law as distinguished from presumption of facts. However, the obligation of the prosecution may be discharged with the help of presumption of law and presumption of fact, unless the accused adduces evidence, showing the reasonable possibility of non-existence of presumed fact.

12. After going through the impugned judgment and LCR of both the forums and the evidence adduced by both the parties, it is noted that it was the case of the complainant that the cheque in question was issued to him by the accused person under his signature against the loan taken by him and as he has good acquaintance being the person of the locality, he paid the loan on his assurance to repay early. The fact that the cheque was issued by the accused from his account was dishonoured, was also proved by the bank officials.

So far as the case of the accused, the following aspects have emerged from the evidence on record:-

Ø The accused has not disputed his signature in the cheque in question, but has taken inconsistent plea about its issuance. At the time of cross- examination, plea was taken that it was a lost cheque in the year 2013, but at the time of giving statement under Section 313 CrPC, a new plea has been taken that the said cheque (blank cheque) was issued to one Saidur Rahman, who was his business partner, as security, at the time of some financial transaction. But both the pleas remained unsubstantiated as nothing is brought on record that the cheque was lost and most peculiarly, the aforesaid Saidur Rahman as DW-4 has flatly denied that the said cheque was issued to him by the accused person as shown in Exhibit-A and the Page No.# 8/12

cheque that was issued to him in business transaction, is still in his possession.

Ø He has admitted about the receipt of the legal notice, but he has not responded to the said notice, refuting the claim of the claimant at earliest opportunity, for which, an adverse presumption can be drawn against him that the accused borrowed the amount from the complainant and the cheque was issued towards such payment of legally enforceable debt.

Ø The accused petitioner and his wife, in their evidence, has denied any acquaintance and transaction with the complainant or about delivery of any cheque to him, but his own witness, DW-4 has specifically stated (in cross- examination) that the accused has good acquaintance with the complainant, being a person from the same locality and accused even told DW-4, about issuance of cheque to complainant against some transaction. This has negated all the pleas taken by the accused person.

Ø Defence evidence lacks credit in view of such inconsistency, which indicates the falsity of the plea of the accused person to evade the liability. The accused has totally failed to rebut the presumption of law and facts as well.

Ø Challenge as regards the source of income of the complainant in the present case is of no consequence, where the defence itself has failed to rebut the lawful presumption as discussed above.

13. The proposition of law on the matter of proving a case under 138 NI Act has been set at rest by the recent decision of the Hon'ble Supreme Court in Bir Singh (supra). It has been held that Section 139 of the Act mandates that unless contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. However, the presumption is rebuttable by proving to the contrary. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused to prove by cogent evidence Page No.# 9/12

that there was no debt or liability. Mere denial or rebuttal by the accused was not enough. The presumption under Section 139 is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. Presumption of innocence is undoubtedly a human right. However, the obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.

14. In the instant case, while the complainant has discharged his obligation with the help of presumption of law and the facts that the cheque was issued to him by the accused and presumption of innocence of the accused cannot be drawn. The accused petitioner although made a feeble attempt to challenge the case by inconsistent plea but his own witnesses stood in favour of the case of the complainant, which is enough to discard his plea of innocence. He failed to rebut the case of the complainant, both by way of presumption of law as well as facts. It is also held in Bir Singh (supra) that it is immaterial that cheque may have been filled by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 will be attracted. In the instant case, the accused petitioner failed to prove how his cheque reached into the hands of the complainant, if it was not issued to him.

15. Having regard to the matters on record, this Court is of the opinion that both the trial Court as well as the appellate Court rightly concluded as to the guilt of the accused person. So far as the quantum of sentence, the accused petitioner has been awarded substantive sentence as well as the compensation twice the amount. The accused petitioner, who is a teacher by profession, submits that such a sentence with compensation is higher in both the sides, which has caused prejudice to the petitioner. The findings of the learned appellate Court, who has set aside the compensation, has also caused prejudice to the case of the complainant, as it failed to redress his grievances, which is otherwise pecuniary in nature. The learned appellate Court is of the opinion that the learned Court of Magistrate can only award only one-fourth of the imprisonment, in default of fine. But so far as the present case Page No.# 10/12

is concerned, the Magistrate has not awarded any fine, but the compensation under Section 357 (3) CrPC, so the aforesaid finding regarding one-fourth of sentence in lieu of fine will not come into play. Sentence of fine is always a part of substantive sentence under Indian Penal Code, 1860, whereas, compensation is a different aspect, provided under Section 357 (3) CrPC.

16. Enumerating the object of the Chapter XVII of the NI Act, Hon'ble Supreme Court in Damodar S. Prabhu -Vs- Sayed Babalal H., reported in (2010) 5 SCC 663, has held that the object sought to be attained under Section 138 of NI Act, wherein unlike other punishment, Section 138 NI Act is meant more to ensure payment of money rather than to seek retribution. Similar view is reiterated in R Vijayan -Vs- Baby; (2012) 1 SCC 260, wherein, it has been held that provision under the Act is both punitive and also compensatory and restitutive. It provides a single forum and single proceeding for enforcement of criminal liability by reason of dishonour of cheque and for enforcement of the civil liability for realization of the cheque amount, thereby obviating the need for the creditor to move two different fora for relief. This Court expressed its anguish that some Magistrates went by the traditional view, that the criminal proceedings were for imposing punishment and did not exercise discretion to direct payment of compensation, causing considerable difficulty to the complainant, as invariably the limitation for filing civil cases would expire by the time the criminal case was decided. It has been further observed that unless there were special circumstances, in all cases of conviction, the Court should uniformly exercise the power to levy fine up to twice the cheque amount and keeping in view the cheque amount and the simple interest thereon at 9 % p.a., as the reasonable quantum of loss, direct payment of such amount as compensation. This Court further observed that uniformity and consistency in deciding similar cases by different Courts not only increases the credibility of the cheque as a negotiable instrument but also the credibility of the Courts of Justice.

17. Observation of the Hon'ble Supreme Court in R.Vijayan (supra), is reproduced below:-

"The apparent intention is to ensure that not only the offender is punished, but also ensure that the complainant invariably receives the amount of the cheque by way of Page No.# 11/12

compensation under Section 357 (1) (b) of the Code. Though a complaint under Section 138 of the Act is in regard to criminal liability for the offence of dishonouring the cheque and not for the recovery of the cheque amount, (which strictly speaking, has to be enforced by a civil suit), in practice once the criminal complaint is lodged under Section 138 of the Act, a civil suit is seldom filed to recover the amount of the cheque. This is because of the provision enabling the Court to levy a fine linked to the cheque amount and the usual direction in such cases is for payment as compensation, the cheque amount, as loss incurred by the complainant on account of dishonor of cheque, under Section 357 (1) (b) of the Code and the provision for compounding the offences under Section 138 of the Act. Most of the cases (except those where liability is denied) get compounded at one stage or the other by payment of the cheque amount with or without interest. Even where the offence is not compounded, the Courts tend to direct payment of compensation equal to the cheque amount (or even something more towards interest) by levying a fine commensurate with the cheque amount. A stage has reached when most of the complainants, in particular the financing institutions (particularly private financiers) view the proceedings under Section 138 of the Act, as a proceeding for the recovery of the cheque amount, the punishment of the drawer of the cheque for the offence of dishonor, becoming secondary"

18. In view of above legal proposition enunciated by the Hon'ble Apex Court, awarding compensation by the learned trial Court is justified one, whereas, order of the appellate Court, setting aside the order of compensation is not proper and accordingly, the impugned orders are interfered with. Resultantly, while maintaining the conviction, the accused is hereby sentenced to pay a fine of Rs. 11,00,000/- (Rupees Eleven Lakhs Only) in default, SI for one year and the amount of fine, if realized, be given to the complainant, as compensation. Accused petitioner is accordingly directed to deposit the amount before the trial Court within a period of 2 (two) months.

19. With the findings and directions made above, both the petitions stand disposed of.

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20. Return the LCRs.

JUDGE

Comparing Assistant