Himachal Pradesh High Court

Virender Singh vs Ajay Singh on 20 September, 2024

Neutral Citation No. ( 2024:HHC:8882 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 240 of 2022

Reserved on: 23.8.2024

Date of Decision: 20.9.2024.

    Virender Singh                                                               ...Petitioner

                                          Versus

    Ajay Singh


    Coram
                            r                to                                  ...Respondent

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioner : Mr. Sanjeev Kumar Suri, Advocate. For the Respondent : Mr. Dheeraj K. Vashisht, Advocate.

Rakesh Kainthla, Judge

The present revision is directed against the judgment

dated 9.11.2021, passed by learned Additional Sessions Judge-I,

Una, District Una, H.P. (learned Appellate Court), vide which the

judgment dated 2.9.2019 and order of sentence dated 5.9.2019,

passed by learned Judicial Magistrate First Class, Court No.2,

Amb, District Una, H.P. (learned Trial Court) were upheld.

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

Neutral Citation No. ( 2024:HHC:8882 )

(Parties shall hereinafter be referred to in the same manner as they

were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present

revision are that the complainant filed a complaint before the

learned Trial Court against the accused for the commission of an

offence punishable under Section 138 of the Negotiable

Instruments Act (NI Act). It was asserted that the complainant is

a government contractor. He had very good relations with the

accused. The accused approached the complainant on 21.5.2016

and demanded ₹2.00 lakh for his business from the

complainant. The complainant had ₹85,000/- with him and he

obtained ₹ 1,15,0000/- from his father, who had retired as a

government employee and is an agriculturist. The accused

assured to return the amount. The complainant demanded the

money from the accused. The accused issued a cheque of ₹2.00

lakh drawn on Kangra Central Cooperative Bank, Branch Office

Gagret. The complainant presented the cheque before his bank,

from where it was sent to the bank of the accused. However, the

cheque was dishonoured with an endorsement of 'funds

insufficient'. The complainant issued a notice to the accused

through registered post acknowledgement due. The notice was

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duly served upon the accused. An acknowledgement regarding

the delivery was received by the learned counsel for the

complainant. The accused failed to pay the amount despite the

receipt of a valid notice of demand; hence, the complaint was

filed to take action against the accused.

3. Learned Trial Court found sufficient reasons to

summon the accused. When the accused appeared, a notice of

accusation was put to him for the commission of an offence

punishable under Section 138 of the NI Act. The accused pleaded

not guilty and claimed to be tried.

4. The complainant examined himself (CW1) to prove

his case.

5. The accused in his statement recorded under Section

313 of Cr.P.C. denied the complainant's case in its entirety. He

stated that he wanted to lead defence evidence; however, no

evidence was produced despite sufficient opportunities having

been granted; hence, the learned Trial Court closed the evidence

of the accused vide order dated 1.8.2019.

6. Learned Trial Court held that the accused had not

disputed the issuance of the cheque in the cross-examination of

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the complainant. He suggested to the complainant that the

accused had taken ₹ 50,000/- from the complainant and issued

a blank cheque as security which showed that the accused

admitted the issuance of the cheque to the complainant. A

cheque carries with it a presumption of consideration and the

burden lies upon the accused to rebut this presumption. The

accused failed to rebut the presumption. The cheque was

dishonoured with an endorsement of 'insufficient funds'. The

accused failed to pay the amount despite the receipt of a notice

of demand. All the ingredients of the commission of an offence

punishable under Section 138 of the NI Act were satisfied. Hence,

the accused was convicted of the commission of an offence

punishable under Section 138 of the NI Act and he was sentenced

to undergo simple imprisonment for eight months and to pay a

fine of ₹2,50,000/- and in case of default in the payment of fine

to further undergo simple imprisonment for six months.

7. Being aggrieved from the judgment and order passed

by the learned trial Court, the accused filed an appeal, which was

decided by learned Additional Sessions Judge-I, Una, District

Una, H.P. (learned Appellate Court). Learned Appellate Court

concurred with the findings recorded by the learned Trial Court

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that the accused had not disputed the issuance of the cheque and

the cheque carried with it a presumption of consideration. The

accused failed to provide any evidence to rebut this

presumption. The version of the accused that he had taken

₹50,000/- as a loan and had issued a blank cheque as security

was not established on the record. The cheque was dishonoured

due to insufficient funds and the accused failed to pay the

amount despite the receipt of a valid notice of demand. Hence,

the accused was convicted and sentenced as aforesaid.

8. Being aggrieved from the judgments and order

passed by learned Courts below, the accused has filed the

present revision asserting that learned Courts below erred in

appreciating the material placed before them. The accused had

duly rebutted the presumption under Sections 118 and 139 of the

NI Act. The complainant had failed to prove that the cheque was

issued in discharge of the legal liability, whereas the defence of

the accused that he had issued a security cheque which was

misused by the complainant was duly proved. The learned

Courts below did not send the cheque for comparison. When the

accused had disputed the writing of the cheque, it was the duty

of the Court to send the writing for comparison. The accused had

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established his case by suggestions made to the complainant.

The complainant had failed to comply with the mandatory

provisions of the law. Therefore, it was prayed that the present

revision be allowed and the judgments and order passed by

learned Courts below be set aside.

9. I have heard Mr. Sanjeev Kumar Suri, learned counsel

for the petitioner/accused and Mr. Dheeraj K. Vashisht, learned

counsel for the respondent/complainant.

10. Mr. Sanjeev Kumar Suri, learned counsel for the

petitioner/accused submitted that the learned Courts below

erred in convicting and sentencing the accused. The

complainant had failed to prove that he had advanced the loan to

the accused. He had failed to examine his father to corroborate

his version that an amount of ₹1,15,000/- was taken by the

complainant from him. He had also not produced any record of

the withdrawal of the amount from the bank. The accused had

suggested to the complainant that he had taken a loan of

₹50,000/- which was returned by him and the complainant had

taken a blank cheque from the accused. This version was highly

probable because an income tax return was not filed to establish

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that the complainant had advanced a loan to the accused. No

document was executed between the parties. Learned Courts

below erred in appreciating the material placed before them and

in convicting and sentencing the accused. Therefore, he prayed

that the present revision be allowed and the judgments and

order passed by learned Courts below be set aside.

11. Mr. Dheeraj K. Vashisht, learned counsel for the

respondent/complainant supported the judgments and order

passed by learned Courts below. He submitted that the learned

Courts below had rightly held that the cheque was issued for

consideration. Sections 118 and 139 of the NI Act carry such a

presumption. There is no infirmity in the judgments and order

passed by learned Courts below. He prayed that the present

revision be dismissed.

12. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

13. It was laid down by the Hon'ble Supreme Court in

Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:

(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional

court is not an appellate jurisdiction and it can only rectify the

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patent defect, errors of jurisdiction or the law. It was observed

on page 207: -

.

"10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a

detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like to the appellate court and the scope of

interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding,

sentence or order, recorded or passed, and as to the

regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-

founded error which is to be determined on the merits of

individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to

reverse those findings.

14. This position was reiterated in State of Gujarat v.

Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was

observed:

"13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to

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refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460 where the scope of Section 397 has been considered and succinctly explained as under:

.

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as

to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it

may not be appropriate for the court to scrutinise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments

of this Court, it emerges that the revisional

jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence

is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would

have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of

the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-

facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is

Neutral Citation No. ( 2024:HHC:8882 )

a much-advanced stage in the proceedings under the CrPC."

15. The present revision has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

16. The complainant reiterated the contents of the

complaint in the affidavit (Ex.CW1/A) filed by him. He stated in

his cross-examination that his account never had ₹2.00 lacs. He

denied that he works as a moneylender. He volunteered to say

that he was a contractor in the IPH Department. His Income Tax

Return is filed by his Accountant. He only pays money to the

labourer and does not advance any money to the people. He

volunteered to say that the accused was his friend and that is

why he had advanced money to the accused. His accountant had

died. He did not remember the income tax paid by him in the

year 2016. The accused was his close friend and he was in

visiting terms to the house of the accused. He had paid money to

the accused in May 2016. He admitted that his father was a

retired Government servant. He was also an agriculturist. He

could not produce any record regarding the income of his father.

His father had paid the money from his savings. He denied that

the accused had taken ₹50,000/- from him and had issued a

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blank cheque as a security. He denied that the accused had not

filled out the cheque and that he had filled the amount in the

cheque. He denied that he had made a false complaint against

the accused and the accused is not to pay anything to him (the

complainant).

17. The cross-examination of this witness clearly shows

that the accused had not disputed the issuance of the cheque. It

was suggested to the complainant that the accused had issued a

blank cheque as a security when the complainant advanced a

sum of ₹50,000/- to the accused. It was laid down by the

Hon'ble Supreme Court in Balu Sudam Khalde v. State of

Maharashtra, 2023 SCC OnLine SC 355 that the suggestion put to

the witness can be taken into consideration while determining

the innocence or guilt of the accused. It was observed: -

"34. According to the learned counsel, such suggestions

could be a part of the defence strategy to impeach the credibility of the witness. The proof of guilt required of the prosecution does not depend on the suggestion made to a witness.

35. In Tarun Bora alias Alok Hazarika v. State of Assam reported in 2002 Cri. LJ 4076, a three-judge Bench of this Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in the TADA Sessions case wherein the appellant was convicted under Section 365 of the IPC read with Section 3(1) and 3(5) of

Neutral Citation No. ( 2024:HHC:8882 )

the Terrorists and Disruptive Activities (Prevention) Act, 1987.

36. In the aforesaid case, this Court, while considering

.

the evidence on record took note of a suggestion which

was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the accused, arrived at the conclusion that the presence of

the accused was admitted. We quote with profit the following observations made by this Court in paragraphs 15, 16 and 17 as under:

"15. The witness further stated that during the

assault, the assailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further

stated that on the third night, he was carried away blindfolded on a bicycle to a different place and

when his eyes were unfolded, he could see his younger brother Kumud Kakati (P.W.-2) and his wife Smt. Prema Kakati (P.W.-3). The place was

Duliapather, which is about 6-7 km. away from his village Sakrahi. The witness identified the appellant-Tarun Bora and stated that it was he who

took him in an ambassador car from the residence of Nandeswar Bora on the date of the incident.

16. In cross-examination the witness stated as under: "Accused-Tarun Bora did not blind my eyes nor he assaulted me."

17. This part of the cross-examination is suggestive of the presence of accused Tarun Bora in the whole episode. This will clearly suggest the presence of the accused-Tarun Bora as admitted. The only denial is the accused did not participate in blind- folding the eyes of the witness nor assaulted him."

37. In Rakesh Kumar alias Babli v. State of Haryana reported in (1987) 2 SCC 34, this Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the

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appellant and three other persons were convicted under Section 302 read with Section 34 of the IPC. While re- appreciating the evidence on record, this Court noticed that in the cross-examination of PW 4, Sube Singh, a

suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. This Court taking into consideration the

nature of the suggestion put by the defence and the reply arrived at the conclusion that the presence of the accused namely Dharam Vir was established on the spot at the time of occurrence. We quote the following

observations made by this Court in paragraphs 8 and 9 as under:

"8. PW 3, Bhagat Singh, stated in his examination- in-chief that he had identified the accused at the

time of occurrence. But curiously enough, he was

not cross-examined as to how and in what manner he could identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and that it was

not possible to identify the assailants of the deceased.

9. In his cross-examination, PW 4, Sube Singh, stated that the accused Dharam Vir was wearing a

shirt of white colour. It was suggested to him on behalf of the accused that Dharam Vir was wearing a shirt of cream colour. In answer to that

suggestion, PW 4 said: "It is not correct that Dharam Vir accused was wearing a shirt of a cream colour and not a white colour at that time." The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of accused Dharam Vir, on the spot at the time of occurrence."

38. Thus, from the above, it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused

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and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.

39. Any concession or admission of a fact by a defence

counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition, we cannot agree with the submission

canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner."

18. Significantly, the accused has not stated any such

fact in his statement recorded under Section 313 Cr.P.C. The

accused has also not stepped into the witness box to establish

that the complainant had only advanced a sum of ₹50,000/- to

him and he had issued a blank cheque in favour of the

complainant. Therefore, both of these defences have not been

established.

19. The accused did not dispute in the cross-

examination of the complainant that the cheque was issued by

him. He claimed that a blank cheque was issued as a security

which means that the issuance of the cheque was not disputed. It

was laid down by this Court in Naresh Verma vs. Narinder

Chauhan 2020(1) Shim. L.C. 398 that where the accused had not

disputed his signatures on the cheque, the Court has to presume

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that it was issued in discharge of legal liability and the burden

would shift upon the accused to rebut the presumption. It was

observed: -

"8. Once signatures on the cheque are not disputed, the

plea with regard to the cheque having not been issued towards discharge of lawful liability, rightly came to be rejected by learned Courts below. Reliance is placed upon Hiten P. Dalal v. Bartender NathBannerji, 2001 (6) SCC 16,

wherein it has been held as under:

"The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not

by a bare explanation which is merely plausible. A

fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the

supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be

said to be rebutted......"

9. S.139 of the Act provides that it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque of nature

referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.

20. Similar is the judgment in Basalingappa vs.

Mudibasappa 2019 (5) SCC 418 wherein it was held:

"26. Applying the proposition of law as noted above, in the facts of the present case, it is clear that the signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability."

Neutral Citation No. ( 2024:HHC:8882 )

21. Similar is the judgment in APS Forex Services (P) Ltd.

v. Shakti International Fashion Linkers (2020) 12 SCC 724, wherein

it was observed: -

7.2. What is emerging from the material on record is that

the issuance of a cheque by the accused and the signature of the accused on the said cheque are not disputed by the accused. The accused has also not disputed that there were transactions between the parties. Even as per the

statement of the accused, which was recorded at the time of the framing of the charge, he has admitted that some amount was due and payable. However, it was the case on behalf of the accused that the cheque was given by way of

security and the same has been misused by the

complainant. However, nothing is on record that in the reply to the statutory notice it was the case on behalf of the accused that the cheque was given by way of security.

Be that as it may, however, it is required to be noted that

earlier the accused issued cheques which came to be dishonoured on the ground of "insufficient funds" and thereafter a fresh consolidated cheque of ₹9,55,574 was

given which has been returned unpaid on the ground of "STOP PAYMENT". Therefore, the cheque in question was

issued for the second time. Therefore, once the accused has admitted the issuance of a cheque which bears his signature, there is a presumption that there exists a

legally enforceable debt or liability under Section 139 of the NI Act. However, such a presumption is rebuttable in nature and the accused is required to lead the evidence to rebut such presumption. The accused was required to lead evidence that the entire amount due and payable to the complainant was paid.

9. Coming back to the facts in the present case and considering the fact that the accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second

Neutral Citation No. ( 2024:HHC:8882 )

time after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the NI Act that there exists a legally enforceable debt or

liability. Of course, such presumption is rebuttable in nature. However, to rebut the presumption, the accused was required to lead the evidence that the full amount due

and payable to the complainant had been paid. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in

the absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time after the earlier cheques were dishonoured. Therefore, both the courts below have

materially erred in not properly appreciating and

considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the NI Act. It appears that both, the learned trial court as well as the High Court, have committed an

error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139 of the NI Act. As observed

above, Section 139 of the Act is an example of reverse onus clause and therefore, once the issuance of the

cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally

enforceable debt or liability and thereafter, it is for the accused to rebut such presumption by leading evidence.

22. Learned Courts below had rightly held that there is a

presumption under Section 139 of the N.I. Act that the cheque

was issued in the discharge of the legal liability. This

presumption was explained by the Hon'ble Supreme Court in

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Triyambak S. Hegde v. Sripad, (2022) 1 SCC 742: (2022) 1 SCC (Civ)

512: 2021 SCC OnLine SC 788 as under at page 747:

.

"12. From the facts arising in this case and the nature of the rival contentions, the record would disclose that the signature on the documents at Exts. P-6 and P-2 are not

disputed. Ext. P-2 is the dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be

the position, as noted by the courts below a presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. Section 139 of the NI Act reads as hereunder:

"139. Presumption in favour of holder. --It shall be

presumed, unless the contrary is proved, 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."

13. Insofar as the payment of the amount by the appellant in the context of the cheque having been signed by the

respondent, the presumption for passing of the consideration would arise as provided under Section

118(a) of the NI Act which reads as hereunder:

"118. Presumptions as to negotiable instruments. --Until

the contrary is proved, the following presumptions shall be made:

(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."

14. The above-noted provisions are explicit to the effect that such presumption would remain until the contrary is proved. The learned counsel for the appellant in that

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regard has relied on the decision of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan [K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510:

1999 SCC (Cri) 1284] wherein it is held as hereunder: (SCC

.

pp. 516-17, para 9) "9. As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in

Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the

cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The trial court was not persuaded to rely on the interested testimony of DW 1

to rebut the presumption. The said finding was upheld

[Sankaran Vaidhyan Balan v. K. Bhaskaran, Criminal Appeal No. 234 of 1995, order dated 23-10-1998 (Ker)] by the High Court. It is not now open to the accused to contend differently on that aspect."

15. The learned counsel for the respondent has however referred to the decision of this Court

in Basalingappa v. Mudibasappa [Basalingappa v. Mudibasa ppa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571] wherein it is

held as hereunder: (SCC pp. 432-33, paras 25-26) "25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we

now summarise the principles enumerated by this Court in the following manner:

25.1. Once the execution of the cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard

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of proof for rebutting the presumption is that of preponderance of probabilities.

25.3. To rebut the presumption, it is open for the

.

accused to rely on evidence led by him or the

accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of

probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a

persuasive burden.

25.5. It is not necessary for the accused to come into the witness box to support his defence.

26. Applying the preposition of law as noted above, in facts of the present case, it is clear that the signature

on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability. The question to

be looked into is as to whether any probable defence was raised by the accused. In cross-examination of PW

1, when the specific question was put that a cheque was issued in relation to a loan of Rs 25,000 taken by the

accused, PW 1 said that he does not remember. PW 1 in his evidence admitted that he retired in 1997 on which date he received a monetary benefit of Rs 8 lakhs, which was encashed by the complainant. It was also brought in evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs 4,50,000 to Balana Gouda towards sale consideration. Payment of Rs 4,50,000 being admitted in the year 2010 and further payment of loan of Rs 50,000 with regard to which Complaint No. 119 of 2012 was filed by the complainant, copy of

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which complaint was also filed as Ext. D-2, there was a burden on the complainant to prove his financial capacity. In the years 2010-2011, as per own case of the complainant, he made a payment of Rs 18 lakhs.

During his cross-examination, when the financial capacity to pay Rs 6 lakhs to the accused was questioned, there was no satisfactory reply given by

the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts."

16. In that light, it is contended that the very materials produced by the appellant and the answers relating to lack of knowledge of property details by PW 1 in his cross- examination would indicate that the transaction is

doubtful and no evidence is tendered to indicate that the

amount was paid. In such an event, it was not necessary for the respondent to tender rebuttal evidence but the case put forth would be sufficient to indicate that the respondent has successfully rebutted the presumption.

17. On the position of law, the provisions referred to in Sections 118 and 139 of the NI Act as also the enunciation

of law as made by this Court need no reiteration as there is no ambiguity whatsoever. In, Basalingappav.

Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571] relied on by the learned counsel for the respondent, though on facts the ultimate

conclusion therein was against raising presumption, the facts and circumstances are entirely different as the transaction between the parties as claimed in the said case is peculiar to the facts of that case where the consideration claimed to have been paid did not find favour with the Court keeping in view the various transactions and extent of amount involved. However, the legal position relating to the presumption arising under Sections 118 and 139 of the NI Act on signature being admitted has been reiterated. Hence, whether there is a

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rebuttal or not would depend on the facts and circumstances of each case."

23. This position was reiterated in Tedhi Singh v. Narayan

Dass Mahant, (2022) 6 SCC 735: (2022) 2 SCC (Cri) 726: (2022) 3

SCC (Civ) 442: 2022 SCC OnLine SC 302 wherein it was held at

page 739:

"8. It is true that this is a case under Section 138 of the

Negotiable Instruments Act. Section 139 of the NI Act provides that the court shall presume 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. This presumption, however, is

expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of "probable

defence" has grown. In an earlier judgment, in fact, which has also been adverted to in Basalingappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418: (2019) 2 SCC (Cri) 571], this

Court notes that Section 139 of the NI Act is an example of reverse onus (see Rangappa v. Sri Mohan [Rangappa v. Sri

Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184]). It is also true that this Court has found

that the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist..."

24. Similar is the judgment in P. Rasiya v. Abdul Nazer,

2022 SCC OnLine SC 1131 wherein it was observed:

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"As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other

.

liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque

are not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a

statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for

the accused to prove the contrary."

25. This position was reiterated in Rajesh Jain v. Ajay

Singh, (2023) 10 SCC 148: 2023 SCC OnLine SC 1275 wherein it was

observed at page 161:

33. The NI Act provides for two presumptions: Section 118

and Section 139. Section 118 of the Act inter alia directs that it shall be presumed until the contrary is proved, that

every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that

"unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability". It will be seen that the "presumed fact" directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated--reference to one can be taken as reference to another]

34. Section 139 of the NI Act, which takes the form of a "shall presume" clause is illustrative of a presumption of

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law. Because Section 139 requires that the Court "shall presume" the fact stated therein, it is obligatory for the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been

.

established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase

"unless the contrary is proved".

35. The Court will necessarily presume that the cheque had been issued towards the discharge of a legally enforceable debt/liability in two circumstances. Firstly,

when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that the cheque was issued/executed in his favour by the drawer. The circumstances set out

above form the fact(s) which bring about the activation of

the presumptive clause. [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35]]

36. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that a blank cheque leaf was

voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar [Bir

Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Civ) 309: (2019) 2 SCC (Cri) 40]]. Therefore, the mere admission of the drawer's signature, without admitting

the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.

37. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact

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will have to be taken to be true, without expecting the complainant to do anything further.

38. John Henry Wigmore [John Henry Wigmore and the

Rules of Evidence: The Hidden Origins of Modern Law] on

Evidence states as follows:

"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the

Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's

requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule'."

39. The standard of proof to discharge this evidential

burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt.

The accused must meet the standard of "preponderance of probabilities", similar to a defendant in a civil proceeding. [Rangappa v. Sri Mohan [Rangappa v. Sri

Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC (Cri) 184: AIR 2010 SC 1898]]"

26. Therefore, the Court has to start with the

presumption that the cheque was issued in discharge of legal

liability and the burden is upon the accused to prove the

contrary.

27. It was submitted that the complainant had not

produced any material on record to show that he had advanced a

sum of ₹2.00 lacs to the accused. He had not produced his father

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to establish that ₹1,15,000/- was paid by him. This submission is

not acceptable. Once it is held that the cheque carried with it a

.

presumption of consideration, the complainant was not

supposed to lead any evidence to show the consideration and the

burden was upon the accused to rebut the presumption. It was

laid down by the Hon'ble Supreme Court in Rohitbhai Jivanlal

Patel v. State of Gujarat (2019) 18 SCC 106: (2020) 3 SCC (Civ) 800:

(2020) 3 SCC (Cri) 575] that once the presumption under Section

139 of the NI Act is drawn, the version of the complainant

regarding source of funds cannot be questioned. It was observed

at page 12o: -

"18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act,

the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of

funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach

of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant-accused."

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28. It was laid down in Uttam Ram v. Devinder Singh

Hudan, (2019) 10 SCC 287: (2020) 1 SCC (Cri) 154: (2020) 1 SCC

(Civ) 126: 2019 SCC OnLine SC 1361that the cheque carries a

presumption of consideration and the complainant is not

required to prove the existence of consideration. It was observed

at page 293:

"19. A negotiable instrument including a cheque carries a presumption of consideration in terms of Section 118(a) and under Section 139 of the Act. Sections 118(a) and 139

read as under:

"118. Presumptions as to negotiable instruments. --Until the contrary is proved, the following presumptions shall be made:

(a) of consideration: that every negotiable

instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was

accepted, indorsed, negotiated or transferred for consideration;

***

139. Presumption in favour of holder. --It shall be

presumed, unless the contrary is proved, 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."

20. The trial court and the High Court proceeded as if, the appellant is to prove a debt before civil court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of a cheque carries a statutory presumption of consideration. The holder of the

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cheque in due course is required to prove that the cheque was issued by the accused and that when the same presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the

accused to rebut the presumption that the cheque was issued not for any debt or other liability.

21. There is the mandate of presumption of consideration

in terms of the provisions of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the Act

which reads as under:

"138. Dishonour of cheque for insufficiency, etc. of funds in the account.--Where any cheque drawn by a person

on an account maintained by him with a banker for payment of any amount of money to another person

from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money

standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement

made with that bank, such person shall be deemed to have committed an offence and shall, ..."

22. In Kumar Exports [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513: (2009) 1 SCC (Civ) 629: (2009) 1 SCC (Cri) 823], it was held that mere denial of the existence of debt

will not serve any purpose but the accused may adduce evidence to rebut the presumption. This Court held as under: (SCC pp. 520-21, para 20) "20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an

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accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by

consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove

the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the

consideration and existence of 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 debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case,

act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he

had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the

circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact,

for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act."

(emphasis supplied)

23. In the judgment Kishan Rao v. Shankargouda [Kishan Rao v. Shankargouda, (2018) 8 SCC 165 : (2018) 4 SCC (Civ) 37 : (2018) 3 SCC (Cri) 544], this Court referring to Kumar Exports [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] and Rangappa [Rangappa v. Sri Mohan, (2010) 11 SCC 441 :

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(2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] returned the following findings : (Kishan Rao case [Kishan Rao v. Shankargouda, (2018) 8 SCC 165 : (2018) 4 SCC (Civ) 37 : (2018) 3 SCC (Cri) 544], SCC pp. 173-74, para 22)

.

"22. Another judgment which needs to be looked into is Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441: (2010) 4 SCC (Civ) 477: (2011) 1 SCC

(Cri) 184]. A three-judge Bench of this Court had occasion to examine the presumption under Section 139 of the 1881 Act. This Court in the aforesaid case has held that in the event the accused is able to raise a

probable defence which creates doubt with regard to the existence of a debt or liability, the presumption may fail. The following was laid down in paras 26 and 27: (SCC pp. 453-54)

'26. In light of these extracts, we are in agreement

with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or

liability. To that extent, the impugned observations in Krishna Janardhan Bhat [Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54: (2008)

2 SCC (Cri) 166] may not be correct. However, this does not in any way cast doubt on the correctness of

the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a

rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.

27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to

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the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence

made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a

civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of

reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof.'"

24. In the judgment Bir Singh v. Mukesh Kumar [Bir

Singh v. Mukesh Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Civ)

309 : (2019) 2 SCC (Cri) 40], this Court held that presumption under Section 139 of the Act is a presumption of law. The Court held as under: (SCC pp. 206 & 208-09, paras 20, 33 & 36)

"20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on

the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as

distinguished from a 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. 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 as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16: 2001 SCC (Cri) 960].

***

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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.

***

36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some

payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of

any cogent evidence to show that the cheque was not issued in discharge of a debt."

25. In other judgment Rohitbhai Jivanlal Patel v. State of

Gujarat [Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106: 2019 SCC OnLine SC 389: AIR 2019 SC 1876] this Court held as under: (SCC paras 15, 17 and 22)

"15. So far the question of the existence of basic ingredients for drawing of presumption under Sections

118 and 139 of the NI Act is concerned, apparent it is that the appellant-accused could not deny his

signature on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of Rs 3 lakhs each. The said cheques were presented to the bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The trial court had also consciously taken note of these facts and had drawn the requisite presumption. Therefore, it

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is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e. the complainant received the same in discharge of an existing debt. The onus, therefore,

shifts on the appellant-accused to establish a probable defence so as to rebut such a presumption.

***

17. On the aspects relating to a preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist

or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not

exist. This Court has, time and again, emphasised that though there may not be sufficient negative evidence

which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under

Sections 118 and 139 of the NI Act....

***

22. The result of the discussion in the foregoing

paragraphs is that the major considerations on which the trial court chose to proceed clearly show its

fundamental error of approach where, even after drawing the presumption, it had proceeded as if the

complainant was to prove his case beyond a reasonable doubt. Such being the fundamental flaw on the part of the trial court, the High Court [Shashi Mohan Goyanka v. State of Gujarat, 2018 SCC OnLine Guj 3674] cannot be said to have acted illegally or having exceeded its jurisdiction in reversing the judgment of acquittal. As noticed hereinabove, in the present matter, the High Court has conscientiously and carefully taken into consideration the views of the trial court and after examining the evidence on the record as a whole, found that the findings of the trial court are

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vitiated by perversity. Hence, interference by the High Court was inevitable; rather had to be made for a just and proper decision of the matter."

29. Therefore, the version of the complainant could not

have been doubted because no material was produced by him on

record to show that he had sufficient money with him to advance

the loan to the accused.

30. The accused has not given any evidence to rebut the

presumption of consideration attached to the cheque. He did not

step into the witness box to prove this version. It was held in

Sumeti Vij v. Paramount Tech Fab Industries, (2022) 15 SCC 689:

2021 SCC OnLine SC 201 that the accused has to lead defence

evidence to rebut the presumption and mere denial in his

statement under Section 313 is not sufficient to rebut the

presumption. It was observed at page 700:

"20. That apart, when the complainant exhibited all these

documents in support of his complaints and recorded the statement of three witnesses in support thereof, the appellant has recorded her statement under Section 313 of the Code but failed to record evidence to disprove or rebut the presumption in support of her defence available under Section 139 of the Act. The statement of the accused recorded under Section 313 of the Code is not substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused. Therefore, there is no evidence to rebut the presumption that the cheques were

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issued for consideration." (Emphasis supplied)"

31. The accused suggested to the complainant that the

cheque was taken as a blank security cheque. The complainant

denied this fact. A denied suggestion does not amount to any

proof, and the learned Courts below had rightly discarded this

version.

32. The accused suggested to the complainant that he

had taken an amount of ₹50,000/- and had returned the same.

He did not provide any evidence to establish this fact. He had not

even filed his statement of account to show this fact. Therefore,

this version of the accused was not proved.

33. There is nothing on record to rebut the presumption

of consideration and the learned Courts below had rightly held

that the accused had failed to rebut the presumption and version

of the complainant that the cheque was issued in discharge of

legal liability was acceptable.

34. The memo of dishonour (Ex.CW1/C) shows that the

cheque was dishonoured with an endorsement of 'insufficient

funds'. There is a presumption under Section 146 of the NI Act

regarding the correctness of the memo of dishonour. The

accused did not provide any evidence to rebut the presumption,

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therefore, it was also proved that the cheque was dishonoured

due to insufficient funds.

35. The complainant stated that he had issued a notice to

the accused. The notice (Ex.CW1/E) has been placed on record.

The acknowledgement (Ex.CW1/G) has also been filed which

bears the initials of someone. The notice was sent to the address

on which the complainant was served and which he has

mentioned in his statement recorded under Section 313 of Cr.P.C.

and the notice of accusation. Therefore, the notice was sent to

the correct address and is presumed to have been served in view

of Section 27 of the General Clauses Act.

36. The accused failed to pay the amount even within 15

days of the receipt of the summons from the Court. It was laid

down in C.C. Allavi Haji vs. Pala Pelly Mohd. 2007(6) SCC 555 that

the person who claims that he had not received the notice has to

pay the amount within 15 days from the date of the receipt of the

summons from the Court and in case of failure to do so, he

cannot take the advantage of the fact that notice was not

received by him. It was observed:

"It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule

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of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons

.

from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment

within 15 days of receipt of summons (by receiving a copy of the complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of

the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring

statutory presumption to the contrary under Section 27

of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the giving of

notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving

the notice by adopting different strategies and escape from legal consequences of Section 138 of

the Act." (Emphasis supplied)

37. Thus, the learned Courts below had rightly held that

the accused had issued a cheque in discharge of legal liability.

The cheque was dishonoured due to insufficient funds and the

accused failed to pay the amount despite the receipt of a valid

notice of demand and he was rightly convicted by the learned

Trial Court.

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38. The learned Trial Court sentenced the accused to

undergo simple imprisonment for eight months and to pay a

fine of ₹2,50,000/- for the commission of an offence punishable

under Section 138 of the NI Act. The legislature had introduced

the offence of dishonour of cheques to instil confidence in the

public about the transactions carried with the cheque. It was laid

down by the Hon'ble Supreme Court in Bir Singh v. Mukesh

Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

309: 2019 SCC OnLine SC 138 that the penal provision of section

138 is a deterrent in nature. It was observed at page 203:

"6. The object of Section 138 of the Negotiable

Instruments Act is to infuse credibility into negotiable instruments including cheques and to encourage and promote the use of negotiable instruments including

cheques in financial transactions. The penal provision of Section 138 of the Negotiable Instruments Act is intended

to be a deterrent to callous issuance of negotiable instruments such as cheques without serious intention to

honour the promise implicit in the issuance of the same."

39. Thus, the sentence of imprisonment for eight

months cannot be said to be excessive.

40. The cheque was issued on 5.1.2017. Learned Trial

Court pronounced the order on 5.9.2019 after the lapse of two

and half years. The complainant had to incur the legal expenses

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and he had to engage a counsel for that. He also suffered a loss of

interest and was entitled to be compensated for the same. It was

laid down by the Hon'ble Supreme Court in Kalamani Tex v. P.

Balasubramanian, (2021) 5 SCC 283: (2021) 3 SCC (Civ) 25: (2021) 2

SCC (Cri) 555: 2021 SCC OnLine SC 75 that the Courts should

uniformly levy a fine up to twice the cheque amount along with

simple interest at the rate of 9% per annum. It was observed at

page 291: - r

19. As regards the claim of compensation raised on behalf

of the respondent, we are conscious of the settled principles that the object of Chapter XVII of NIA is not only punitive but also compensatory and restitutive. The provisions of NIA envision a single window for criminal

liability for the dishonour of a cheque as well as civil liability for the realisation of the cheque amount. It is also well settled that there needs to be a consistent approach

towards awarding compensation and unless there exist special circumstances, the courts should uniformly levy

fines up to twice the cheque amount along with simple interest @ 9% p.a. [R. Vijayan v. Baby, (2012) 1 SCC 260,

para 20: (2012) 1 SCC (Civ) 79: (2012) 1 SCC (Cri) 520]"

41. Thus, the compensation of ₹2,50,000/- cannot be

said to be excessive.

42. No other point was urged.

43. Therefore, the judgments and order passed by

learned Courts below are fully sustainable and do not require any

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interference in the exercise of revisional jurisdiction.