Santosh Kumar Awasthi vs Umesh Chandra Punjabi
2021 Latest Caselaw 7448 MP

                                                                      1                               CRR-2926-2021
                                            The High Court Of Madhya Pradesh
                                                     CRR No. 2926 of 2021

(SANTOSH KUMAR AWASTHI Vs UMESH CHANDRA PUNJABI)

Jabalpur, Dated : 16-11-2021 Shri Siddharth Gulatee, learned counsel for revision petitioner.

This revision has been filed under Section 397/401 of the Code of Criminal Procedure, 1973 being aggrieved of judgment dated 13.03.2020, passed by Judicial Magistrate First Class, Vijay Raghavgarh, District- Katni in Case No.100156/2016 where by the trial Court held petitioner to be guilty of

an offence under Section 138 of Negotiable Instruments Act and directed him to undergo six months simple imprisonment with further direction to pay a sum of Rs.5,50,000/- as compensation and in the event of failure to pay the compensation to undergo further four months simple imprisonment.

Learned counsel for the revision petitioner submits that being aggrieved of this order passed by Judicial Magistrate First Class, revision petitioner had preferred an appeal which was registered as Cr.A. No.37/2001 and which has been decided by the 9th Additional Sessions Judge Katni, vide judgment dated 28.10.2021 wherein the Appellate Court has overlooked the fact that

revision petitioner had discharged his burden which is rebuttable in terms of the provisions contained in Sections 118, 138 and 139 of the Negotiable Instruments Act that there was no financial transaction between the accused and the complainant and further the complainant was lacking monetary capacity to advance a loan of Rs.4,50,000/- but despite discharge of this burden which fulfills the requirement of the law laid down by Supreme Court in the case of Basalingappa Vs. Mudibasappa (2019) 5 SCC 418. Learned Appellate Court has though reduced the sentence of simple imprisonment from six months to the period till rising of the Court but has directed the appellate revision petitioner to pay a sum of Rs.5,50,000/- so also has maintained the default sentence as was awarded by the trial Court.

Learned counsel for the revision petitioner has taken this Court to the Signature Not Verified SAN testimony of complainant and reading that testimony specially in paragraph 4, Digitally signed by APARNA TIWARI Date: 2021.11.18 17:10:13 IST 2 CRR-2926-2021 5 and 6, it is submitted that since complainant has himself admitted that he is unemployed and he is not doing any work for last 10-15 years, he had no capacity to lend such a huge amount as has been sought to be given by him to the accused. It is submitted that the complainant neither produce the books of account nor the details of the Bank account from where he had allegedly

withdrawn some money to be handed over to the accused person. It is submitted that the complainant's son Sourabh Khatri was examined as a defence witness and he has admitted that his father is not doing any work and his expenses are met by this witness Sourabh Khatri and his brother. Reading evidence of Sourabh Khatri who was subsequently declared hostile by the Court it is submitted that when there is no source of earning for the complainant then the presumption stood rebutted that he had no capacity to advance a loan for repayment of which cheque has been allegedly given by the accused to the complainant.

Shri Siddharth Gulatee has also read evidence of the complainant to demonstrate that the notice which was given upon dishonor of the cheque makes a mention of four cheques which was allegedly given to the complainant, one Abdul Majid and another cheque in name of his son

Sourabh Khatri and 4th cheque in the name of Pramod Kumar Gupta and reading this evidence it is submitted that on the contrary, Sourabh Khatri has categorically deposed that he has no acquaintance with the present accused person.

Reliance is placed on para-25 of the judgment given by Supreme Court in the case of Basalingappa Vs. Mudibasappa (supra) wherein the following principles have been laid down:-

"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 following manner:

25.1. Once the execution of cheque is admitted Section 139 of the Act mandates Signature Not Verified SAN a presumption that the cheque was for the discharge of any debt or other liability.

Digitally signed by APARNA TIWARI Date: 2021.11.18 17:10:13 IST 3 CRR-2926-2021 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 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 in the witness box to support his defence."

Placing reliance on the aforesaid proposition of law, it is submitted that since Supreme Court has held that presumption under Section 139 of the Negotiable Instruments Act is a rebuttable presumption and the onus is on the accused to raise the probable defence and since that probable defence was raised by the accused and complainant has failed to proof his financial capacity, therefore, the Appellate Court should have allowed the appeal and set aside the order passed by the trial Court.

After hearing learned counsel for the revision petitioner and going through the material available on record, it is evident from the cross- examination of the complainant that though revision petitioner has tried to question capacity of the complainant to make payment of certain advances in discharge of which the cheque in question was allegedly handed over to the complainant but fact of the matter is that accused's own witness namely Sourabh Khatri has clearly mentioned that expenses of the complainant are met by his brother and himself. Brother of Sourabh Khatri has not been examined. There is no suggestion to this witness even though he was declared hostile and was permitted to be subjected to leading questions that his brother and this witness never advanced any money to his father apart from taking Signature Not Verified SAN

Digitally signed by APARNA TIWARI Date: 2021.11.18 17:10:13 IST 4 CRR-2926-2021 care of his day to day expenses. On the contrary, when evidence laid by the complainant is taken into consideration, he has categorically deposed in para 10 and 11 of his evidence that apart from the complainant, other sums were advanced at his instance and on his guarantee by other creditors namely Abdul Majid, Sourabh Khatri and Pramod Kumar Gupta. This witness has also admitted that these amounts were advanced on his guarantee and other three persons use to tell him to get their money back. Thus, there is no contradiction in the evidence of the complainant and his son Sourabh Khatri as has been sought to be made out by Shri Siddharth Gulatee that when Sourabh Khatri is not having any acquaintance with the accused then the testimony of the complainant is to be read down and inferences are to be drawn accordingly.

The fact of the matter is that no suggestion has been made to Sourabh Khatri who was examined after examination of the complainant that either he had not advanced any money to the accused or that accused had personally handed over cheque to him and his father i.e. the complainant is giving incorrect statements. It was open for the accused to have confronted his witness Sourabh Khatri who incidentally also happens to be son of the complainant with the statements of the complainant to bring out contradictions in the testimony of the complainant so to rebut the burden as has been laid down in case of Basalingappa vs. Mudibasappa (supra) but the accused has failed to discharge that burden and merely because complainant did not produce copy of his bank accounts, it cannot be said that complainant has failed to prove his financial capacity. Therefore, even when the law laid down in case of Basalingappa vs. Mudibasappa is considered and taken into consideration, it cannot be said that presumption in favour of the holder of the cheque/ Negotiable Instruments Act stood rebutted even on the preponderance of the evidence requiring the trial Court or the Appellate Court to dismiss the complaint and exonerate the accused. Therefore, in my opinion, when the judgments passed by the trial Court and Signature Not Verified SAN

Digitally signed by APARNA TIWARI Date: 2021.11.18 17:10:13 IST 5 CRR-2926-2021 the First Appellate Court are examined on the touchstone of the law laid down by the Supreme Court in case of Basalingappa, no fault can be attributed in appreciation of evidence, therefore, the revision petition fails and is dismissed.

At this stage, Shri Siddharth Gulatee submits that Appellate Court had given time of only seven days to deposit the amount as has been awarded by the trial Court and upheld by the Appellate Court. He submits that at least in the exercise of discretion of this Court that time period be extended to some reasonable limit so that revision petitioner may not have to be forced to undergo default sentence as has been maintained by the First Appellate Court.

The prayer made by Shri Siddharth Gulatee appears to be just and correct and, therefore, it is directed that time limit to pay compensation as has been awarded by the trial Court and upheld by the First Appellate Court

stands extended till 30th November, 2021 i.e. if the amount of compensation

is paid in the trial Court on or before 30th November, 2021 then revision petitioner will not be required to undergo default sentence.

(VIVEK AGARWAL) JUDGE

AT

Signature Not Verified SAN

Digitally signed by APARNA TIWARI Date: 2021.11.18 17:10:13 IST