Crl.Rev.P./436/2018
2021 Latest Caselaw 978 Gua

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GAHC010250742018




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

                               PRINCIPAL SEAT AT GUWAHATI

                  Case No. : CRIMINAL REVISION PETITION NO. 436/2018



       DEBDAS BANIK, AGED ABOUT 71 YEARS,
      S/O LATE KALIDAS BANIK,
      R/O. STATION ROAD, KARIMGANJ TOWN,
      P.O. AND P.S.- KARIMGANJ,
      DISTRICT-KARIMGANJ, ASSAM
                                                                             ...... PETITIONER.
                             -Versus-


On the death of Debabrata Das, the following legal heirs were impleaded :-
    1. SHIBANI DAS
       W/O LATE DEBABRATA DAS
       R/O LAXMI CHARAN DAS
       P.O. AND P.S. KARIMGANJ
       DIST. KARIMGANJ
       ASSAM.
    2. DEEPOBRATA DAS
       S/O LATE DEBABRATA DAS
       R/O LAXMI CHARAN DAS
       P.O. AND P.S. KARIMGANJ
       DIST. KARIMGANJ
       ASSAM.
    3. DEBJANI DAS
       D/O LATE DEBABRATA DAS
       R/O LAXMI CHARAN DAS
       P.O. AND P.S. KARIMGANJ
       DIST. KARIMGANJ
       ASSAM.
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     4. THE STATE OF ASSAM
        REPRESENTED BY PP,
        ASSAM.
                                                                               ...... RESPONDENTS.

     Advocate appeared for the petitioners              : Mr S C Biswas.


     Advocates appeared for the respondent                  : Mr M J Quadir.




                                                 BEFORE
                        HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN


Date of Hearing                              : 02.03.2021


Date of Judgment                             : 15.03.2021




                                 JUDGEMENT AND ORDER (CAV)

Heard Mr S C Biswas, learned counsel for the petitioner. Also heard Mr M J Quadir, learned counsel for the private respondents.

2. The revision is preferred against the order dated 03.10.2018, passed by the learned Sessions Judge (FTC), Karimganj, in Criminal Appeal No. 43 (03)/2017, whereby the learned Court has affirmed the Judgment and Order dated 12.06.2017, passed by the learned Additional CJM, Karimganj, in CR Case No. 23/2016, wherein the petitioner was convicted under Section 138 of the NI Act and sentenced to undergo SI for 6 months and pay a fine of Rs. 14,00,000/-, in default, SI for 2 (two) months.

3. A complaint was lodged by the respondent/complainant before the learned CJM, Karimganj, on 16.08.2016, stating that the petitioner being well known to him had taken a loan of Rs. 4,00,000/- (Rupees Four Lakhs) on 12.04.2016 from him, on a condition to repay Page No.# 3/9

the same and without returning the same, on 15.04.2016, he again took a loan of Rs. 3,00,000/- (Rupees Three Lakhs), with the further condition to repay the total amount of Rs. 7,00,000/-. The complainant further stated that, on 30.05.2016, the accused issued a Cheque No. 638037 for Rs. 7,00,000/- (Rupees Seven Lakhs) from his bank Account No. 0036010097470 of the United Bank of India, Karimganj Branch and accordingly he deposited the said cheque in his bank account No. 10916708769 at SBI, Karimganj Branch, but on 09.06.2016, the said cheque was dishonoured for insufficient fund in the petitioner's bank account. The complainant further stated that after dishonor of the cheque, he communicated with the accused, who assured him for arrangement of the funds available in his bank account, but failed to do so and the said cheque was again dishonoured on 15.07.2016, as intimated to him vide return memo issued by the bank. Thereafter, on 19.07.2016, the complainant issued notice to the accused through his engaged lawyer, informing the fact of dishonor of the cheque, with a request to make the payment of the cheque amount of Rs. 7,00,000/- (Rupees Seven Lakhs) within 15 days from the date of receipt of the said notice but failed to respond and hence, complaint petition was filed under Section 138 of the NI Act.

4. On receipt of the said complaint, CR Case No. 23/2016 was registered in the Court of learned CJM, Karimganj and it was transferred to the Court of learned Additional CJM, Karimganj. The learned trial Court, on receipt of the complaint as well as the statement of the complainant on affidavit, took cognizance of the offence under Section 138 of the NI Act and issued process against the accused. On appearance of the accused in response to the summons, he was released on bail and after compliance of Section 207 CrPC as well as hearing of both the sides, substance of accusations under Section 138 was explained to the accused petitioner, to which he pleaded not guilty and claimed to be tried.

5. During the course of trial, the complainant side examined three witnesses, i.e., the complainant and two other bank officials. On closure of the evidence of the complainant side, the statement of the accused petitioner was recorded under Section 313 CrPC and he declined to adduce any evidence in his defence.

6. Learned counsel for the petitioner submits that the learned trial Court failed to appreciate the evidence available on record and erred in facts as well as in law and passed Page No.# 4/9

the impugned Judgment and order dated 12.06.2017, as aforesaid. Being aggrieved, the petitioner preferred an appeal under Section 374 CrPC, being Criminal Appeal No. 43 (03) of 2017, before the learned Additional Sessions Judge, Karimganj, which was dismissed vide impugned judgment and order dated 03.10.2018. On being dissatisfied and highly aggrieved with both the orders passed by the learned trial Court as well as the learned appellate Court, the petitioner has approached this Court with the present revision petition.

7. Mr S C Biswas, learned counsel for the petitioner has urged before this Court that the learned trial Court as well as the appellate Court failed to appreciate that the complainant/respondent, being a retired headmaster of the school had no such capacity to pay a huge amount to the accused petitioner. Further, it is contended that mere proving of document about withdrawal of money from the Bank, prior to issuance of such cheque does not itself indicate that the same money was given to the accused petitioner. Another point of argument is that the learned trial Court failed to appreciate that the petitioner took a loan of Rs. 1 lac as a loan and a blank cheque was issued to the complainant/respondent as security, but despite the repayment of the loan, the complainant has not returned the cheque to the accused petitioner, instead he himself wrote the figure of Rs. 7 lacs in the cheque in question. Accordingly, it has been contended that no presumption can be drawn that the cheque in question was issued in discharge of any debt or liability by the petitioner, under Section 118 and Section 139 of the NI Act.

8. In support of the contention, the learned counsel for the petitioner relied upon the following decisions:-

1) (2006) 6 SCC 39; M/s Narayana Menon @ Mani -Vs- State of Kerala & Anr., wherein it has been 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.

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2) AIR 2008 Supreme Court 1325; Krishna Janardan Bhatt -Vs- Dattatraya. G.

Hegde, wherein it has been held 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.

3) (2014) 2 SCC 236; John K Abraham -Vs- Simon C Abraham, wherein it has been held that for drawing of presumption under Section 118/138/139 of the NI Act, burden lies on the complainant to show that i) he has requisite fund for advancing some money/loan in question to the accused; ii) that the issuance of cheque by the accused in support of repayment of money advanced was true; iii) that the accused was bound to make payment as has been agreed while issuing cheque in favour of complainant.

4) 2016 (3) GLT 474; Angelus Topno -Vs- Srikanta Sarma; wherein also, it has been held that presumption of Section 139 of the NI Act does not give rise to presumption with regard to existence of legally enforceable debt. Mere dishonor of cheque without proving existence of a legally enforceable debt, is not enough to attract the Section 138 of the NI Act.

9. On the other hand, Mr. M J Quadir, the learned counsel for the respondent/complainant has submitted that such a challenge made by the accused petitioner is beyond the evidence on record. It is contended that in terms of the defence plea taken by the accused petitioner, that he has taken the amount of Rs. 1 lac as loan from the complainant/respondent and that it was repaid, is not at all proved by any plausible evidence. Neither the accused petitioner was able to rebut the evidence of the complainant as regards such payment, nor did he adduce any evidence in this regard. Further, in view of the admission of issuance of cheque to the complainant/respondent, his other challenge is that it was a blank cheque given as security, in absence of adequate evidence is of no consequence. Accordingly, it has been submitted that the learned trial Court as well as the learned appellate Court has rightly convicted the accused petitioner, which calls for no interference.

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10. Pursuant to the rival submissions, I have gone through the LCR as well as the impugned judgment of both the forums.

11. It is to be noted that the accused petitioner has not challenged the issuance of cheque to the complainant, but it was his plea that it was issued as a security. Then, we need to discuss as to why, cheque was issued as a security. It is the plea of the accused petitioner that he took an amount of Rs. 1 lac from the complainant as a loan and cheque was issued at that time as a security and the said loan has been returned, but the cheque was not returned to him. But save and except giving some suggestion in this regard, which is denied by the other side, the petitioner failed to substantiate his plea by adducing cogent and proper evidence.

12. 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. Further, we may profitably refer to the decision of Basalingappa -Vs- Mudibasappa; (2019) 5 SCC 418, wherein it has been 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.

13. So far as regards the capacity to pay such amount of Rs. 7 lacs by the complainant, it has been clarified by the complainant that he being a retired headmaster of the school got certain retirement benefit and the aforesaid amount was withdrawn from his bank and the same was provided to the accused due to having long standing (38 years) good relation with the accused petitioner. The statement of account issued by the Bank has also been adduced and proved by the bank officials about such withdrawal by the complainant, so there cannot be any doubt as to the capacity to pay such amount by the complainant. In fact, the accused Page No.# 7/9

petitioner himself took inconsistent plea during the course of trial only to resist the claim of the complainant. He has specifically admitted about issuance of cheque and also taking of loan from the complainant but has given different explanation, which is self-contradictory. There is absolutely no evidence in support of such defence plea. On the other hand, the complainant has adduced oral and documentary evidence to establish that he has given the said amount as a loan to the accused/petitioner and the bank officials has duly proved about the signature of the accused person on the cheque in question and dishonor of the same. The accused petitioner has admitted in cross-examination that due to having good relation with the complainant, he maintained such financial transaction with the complainant since earlier and he used to return money on earlier occasions. Obviously, the plea of the accused that he issued no such cheque to the complainant is nothing but a false pretext only to evade the liability. Undoubtedly, the complainant has proved the existence of legally recoverable debt.

14. The decisions relied by the petitioner side is of no avail to rescue him from irresistible conclusion that presumption under Sections 118/138/139 of the NI Act can be drawn in the present case. The above position of law has been set at rest by the recent decision of the Hon'ble Supreme Court in Bir Singh -Vs- Mukesh Kumar; (2019) 4 SCC 197, wherein it has been held as below:-

"...........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 Page No.# 8/9

of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact...."

Further, it has been held that interference with concurrent findings of fact of trial Court and the first appellate Court in exercise of the revisional jurisdiction by the High Court is not warranted, unless findings are vitiated by perversity, error of law or jurisdictional error.

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 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."

15. 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.

16. 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.

17. The learned counsel for the petitioner, however, made an alternative submission that the accused petitioner is an old ailing person by this time, aged about 71 years and he is willing to pay the cheque amount, subject to relaxation of the sentence and compensation amount.

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18. Considering the above aspect that the accused is an old aged person and also undertook to pay the amount, while maintaining the conviction, the sentence is converted to a fine of Rs. 9,50,000/- (Rupees Nine Lacs Fifty Thousand Only) in default, SI for 6 months. The petitioner is directed to deposit the amount before the learned trial Court within a period of 2 (two) months from today, failing which he will serve the sentence.

19. With the findings above, the revision petition stands disposed of. Return the LCR.

JUDGE

Comparing Assistant