Supreme Court has convicted a person in cheque bounce case when it found that he had failed to rebut the presumption available in law regarding liability.
A bench of Justice Rao and Justice Gupta has passed the order in the case titled as UTTAM RAM vs DEVINDER SINGH HUDAN on 17.10.2019.
In a cheque bounce case, the trial court and High Court acquitted the accused. Complainant approached the Supreme Court. Despite notice, the accused chosen not to appear. Then the Supreme Court appointed a counsel for assistance.
Supreme Court observed on merits as "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 cheque carries a statutory presumption of consideration. The holder of 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".
It also observed "The accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and the High Court. Both Courts not only erred in law but also committed perversity when the due amount is said to be disputed only on account of discrepancy in the cartons, packing material or the rate to determine the total liability as if the appellant was proving his debt before the Civil Court. Therefore, it is presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the appellant received the same in discharge of an existing debt. The onus, thereafter, shifts on the accusedappellant to establish a probable defence so as to rebut such a presumption, which onus has not been discharged by the respondent".
Then the Supreme Court held "Consequently, the present appeal is allowed, order passed by the High Court is set aside. The respondent is held guilty of dishonour of cheque for an offence under Section 138 of the Act. The respondent shall pay Rs.10,77,712/- as fine i.e. twice of the amount of cheque of Rs.5,38,856/- and a cost of litigation of Rs.1,00,000/- within three months. If the amount of fine and the costs are not paid within three months, the respondent shall undergo imprisonment for a period of six months".
Read the Order here:
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