Jeeban Deb vs The State Of Assam
2021 Latest Caselaw 1251 Gua

                                                                           Page No.# 1/6

GAHC010001562018




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

                                 Case No. : Crl.Rev.P./6/2018

            JEEBAN DEB
            S/O. LATE BHABOTOSH DEB, C/O. DEB ELECTRONICS, NEW MARKET, P.O.
            AND P.S. TINSUKIA, DIST. TINSUKIA.



            VERSUS

            THE STATE OF ASSAM
            GAUHATI HIGH COURT, GUWAHATI-1, ASSAM.

            2:M/S JAIN COMPUTERS
             CITY SHOPPING CENTRE
             GNB ROAD
             P.O. AND P.S. TINSUKIA
             REPRESENTED BY SRI PADAM CHAND JAIN
             KARTA OF (HUF) PROPRIETORSHIP FIRM RESIDENT OF BABULAL BAZAR
             CHIRWAPATTY ROAD
             P.O. AND P.S. TINSUKIA
             PIN 78612

Advocate for the Petitioner   : MR. S BORTHAKUR

Advocate for the Respondent : PP, ASSAM

JUDGEMENT AND ORDER (ORAL)

Heard Mr S Borthakur, learned counsel for the petitioner. Also heard Mr R C Paul, learned counsel appearing for and on behalf of the respondent No. 2.

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2. The revision is preferred against the impugned judgment and order dated 14.11.2017, passed by the learned Sessions Judge, Tinsukia, in Criminal Appeal No. 24 (3)/2015, upholding the judgment and order dated 21.08.2015, passed by the learned Additional Chief Judicial Magistrate (Tinsukia), in NI Case No. 81/2013, whereby the petitioner was convicted under Section 138 of the NI Act, 1881 and sentenced to undergo SI for a period of 3 (three) months and a fine of Rs. 30,000/-, as compensation, in default, SI for 3 (three) months.

3. The brief case of the complainant/respondent is that complainant is the karta of HUF (Hindu Undivided family) and one of the business of the said HUF is M/s Jain computers, which deals in selling of computers and different types of mobile phones and other electronic goods and accessories. There was a good business relationship between the complainant/respondent and the accused petitioner had requested the complainant/respondent to help him financially in the development of his business by providing goods on credit. The complainant being induced delivered various items to the accused and as per the ledger account maintained by the complainant an amount of Rs. 33,849/- is still to be paid by the accused. The accused then issued a Cheque bearing No. 056104 dated 04.10.2013 of Rs. 15,000/- drawn on Subansiri Gaonlia bank/Assam Gramin Vikash Bank, Tinsukia, in favour of the complainant. On 04.10.2013, the complainant presented the cheque for collection through his bank HDFC Ltd. Tinsukia, but the cheque got dishonoured due to insufficient fund. On 25.10.2013, the complainant sent a legal notice to the accused demanding payment of the cheque amount, which was received by the accused on 26.10.2013. On 09.11.2013, the accused gave a reply notice, whereby he has denied issuance of the cheque and took the plea that the cheque was given as a security.

4. After examining the complainant/respondent No. 2 under Section 200 CrPC, cognizance was taken against the accused petitioner under Section 138 of the NI Act and the learned trial Court issued summons against the accused petitioner and accordingly, he entered his appearance and particulars of the offence under Section 138 of the NI Act was explained to him, to which he pleaded not guilty and claimed to be tried. The complainant examined one witness and statement of accused was recorded under Section 313 CrPC. However, the defence did not adduce any evidence. Finally, on 21.08.2015, the learned trial Page No.# 3/6

Court convicted the accused petitioner as aforesaid. Being aggrieved with this order, the accused petitioner preferred an appeal before the learned Sessions Judge, Tinsukia and the learned appellate Court, vide its order dated 14.11.2017, upheld the order dated 21.08.2015 and dismissed the appeal. On being highly dissatisfied with both the orders of the learned trial Court as well as the appellate Court, the petitioner has filed the present revision petition, challenging both the orders aforesaid.

5. According to the learned counsel for the petitioner, the learned Court below has not appreciated the evidence on record and the plea taken by the accused petitioner that the cheque was issued only as a security, not against any liability and has arrived at a wrong finding, which is liable to be interfered into.

6. The respondent, however, vehemently refuted the said submission, contending that no any rebuttable evidence was adduced by the petitioner, save and except taking plea and the prosecution has successfully proved the offence under Section 138 of the NI Act and there is no error in the findings of the Court below, calling for interference.

7. Due consideration has been given to the submission of the learned counsel for the petitioner and perused the impugned judgment and the evidence on record.

8. In the present case, issuance of cheque and signature of the accused petitioner is not disputed nor the petitioner has disputed about the business relationship/transaction between the parties since earlier and it was the contention of the petitioner that the cheque was issued to the complainant to disburse it to some other person. It is to be noted that the complainant/ respondent served the legal notice (Exhibit-5) upon the petitioner, claiming the cheque amount and in reply to the said legal notice vide Exhibit-7, the accused petitioner took the specific plea that he issued the cheque in the year 2006 as a security and although he has cleared all the dues, the cheque was not returned, whereas the cheque in question is of 04.10.2013.

9. It reveals that the petitioner has taken different pleas at different stages, but except giving suggestion, the petitioner failed to produce any evidence, either oral or documentary, to prove his plea and/or to rebut the evidence of the complainant/respondent. Such a denial Page No.# 4/6

simpliciter will not help the accused petitioner to rescue him from the liability. The learned trial Court can raise the statutory presumption under the law in the given circumstances.

10. Although the accused petitioner challenges Exhibit-1, ledger amount of Rs. 33,849/- to be paid by him, against the various articles provided to him and also challenges that, the handwriting in the cheque in question, is of different person, but the same is of no consequence, as there is no denial of business transaction between them and his signature in cheque is admitted. Further, if the petitioner had returned all the dues, then why no step was taken for return of his signed cheque from the complainant, is another lapse on the part of the petitioner. Evidently, all such inconsistent pleas are taken only to resist the claim of the respondent/complainant.

11. The Hon'ble Apex Court in Hiten P Dalal -Vs- Batindra Nath Banerjee; (2001) 6 SCC 16, it has been held that mere plausible explanation given by an accused is not enough to rebut the presumption and accused has to disprove the prosecution case by giving cogent evidence that he has no debt or liability to issue the cheque.

12. Further, in the case of M/s Narayana Menon @ Mani -Vs- State of Kerala & Anr.; (2006) 6 SCC 39, the Hon'ble Apex Court has held that the Court has to presume a negotiable instrument to be for consideration unless the existence of consideration is disproved. Presumption under Section 118 A and Section 139 are rebuttable in nature and for rebutting the presumption, what is needed is to raise a probable defence and the same has to be proved by preponderance of probabilities.

13. In the case of Krishna Janardan Bhatt -Vs- Dattatraya. G. Hegde; AIR 2008 Supreme Court 1325, it has been held by the Hon'ble Apex Court that presumption under Section 139 merely raises a presumption on the holder of cheque that the same has been issued for discharge of any debt or liability. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act.

14. Further, in the case of Basalingappa -Vs- Mudibasappa; (2019) 5 SCC 418, the Hon'ble Page No.# 5/6

Apex Court has held that a bare denial of passing of consideration and existing debt apparently would not serve the purpose of the accused, something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record, such facts and circumstances upon consideration of which, the Court may either believe that the consideration and the debt did not exist or their non-existence was so probable that a prudent man would under circumstance of the case, act upon the plea that they did not exist.

15. In a recent decision of the Hon'ble Supreme Court in Bir Singh -Vs- Mukesh Kumar; (2019) 4 SCC 197; the Hon'ble Apex Court has held that:-

"...........Section 139 mandates that unless the 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 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...."

So far as regards the blank cheque signed by payee, it is observed as follows:

"33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in Page No.# 6/6

discharge of a liability. It is immaterial that the cheque may have been filled in 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 would be attracted.

34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."

16. In the instant case, the accused petitioner admittedly has issued the cheque with his signature voluntarily but has failed to rebut the presumption that the cheque was not issued in discharge of debt or liability by producing requisite evidence.

17. As a corollary of above findings, it can be held that the accused petitioner failed to rebut the presumption under Section 139 of the NI Act and the learned Courts below has rightly appreciated the entire aspect of the matter and there being no any perversity in the findings, no interference is called for.

18. Resultantly, the revision petition stands dismissed.

19. Return the LCR.

JUDGE

Comparing Assistant