Umesh Prasad v. The State (Govt of NCT of Delhi) & Anr.
Delhi High Court·24 Sep 2019·2019:DHC:4874
Manoj Kumar Ohri
CRL.REV.P. 453/2016
2019:DHC:4874
criminalappeal_dismissedSignificant
AI Summary
The Delhi High Court upheld the conviction under Section 138 of the Negotiable Instruments Act, holding that the petitioner failed to rebut the statutory presumption that the dishonored cheque was issued for discharge of a legally enforceable debt.
Full Text
Translation output
CRL.REV.P. 453/2016 HIGH COURT OF DELHI CRL.REV.P. 453/2016 & Crl.M.A.10169/2016
JUDGMENT
Reserved : 17.09.2019 Date of Decision: 24.09.2019 IN THE MATTER OF UMESH PRASAD ..... Petitioner Through: Mr. Anjaneya Singh and Mr. Jitendra Kumar, Advs.
Versus
THE STATE (GOVT OF NCT OF DELHI) & ANR. ....Respondents Through: Dr. M.P. Singh, APP for State Mr. Sandeep Vishnu, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
1. By way of present revision petition, the petitioner has assailed the judgment dated 29.01.2016 passed by Special Judge-07 in Crl. Appeal NO. 02/15 whereby petitioner’s conviction under Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act) has been upheld.
2. Vide judgment dated 20.04.2015, the petitioner was convicted by the trial court and vide order on sentence dated 23.04.2015, he was directed to pay fine of Rs.25 lacs, out of which Rs.24 lacs was to be paid to the complainant towards compensation under Section 357(1) Cr.PC and the remaining amount of Rs.[1] lakh was to be deposited with the State, and in default of payment of fine, the petitioner was directed to undergo SI for three months.
3. Learned counsel for the petitioner contended that the petitioner was employed with the complainant. The petitioner used to collect the 2019:DHC:4874 payments on behalf of the complainant from his clients, who was also dealing in the business of real estate as well as shares. As the petitioner used to collect payments at the instance of the complainant, the petitioner was asked to give blank cheque to the complainant as security, which was subsequently filled up by the complainant to initiate the present proceedings. Learned counsel for the petitioner primarily submitted that the petitioner had been able to rebut the presumption under Section 139 of the Act and in this regard relied upon the testimony of the complainant to submit that the complainant has failed to prove the loan transaction.
4. In support of his submission, learned counsel for the petitioner referred to the following three questions which were put to the complainant during his cross-examination: “1) Whether the loan was given in cash or by cheque?
2) Whether the loan was given as a lump sum or in installments?
3) Whether the loan was given by way of formal or informal agreement?” Learned counsel for the petitioner submitted that the answers to all of the above questions were vague as it was replied by the complainant that he did not remember, which created doubt about the existence of any debt. He also denied the existence of any legally enforceable debt on the alleged date. He further submitted that the impugned cheque dated 05.08.2011 was not given by the petitioner towards any legally enforceable debt but was rather given as a security. Learned counsel has also submitted that the loan receipt was forged as he denied the handwriting on the said loan receipt.
5. Per contra, learned counsel for respondent no.2 submitted that initially a loan of Rs.15 lacs was given by the complainant to the petitioner in the year 2008. The petitioner also executed a “loan receipt” dated 13.10.2008 in this regard. He further submitted that another loan of Rs.[5] lacs was advanced to the petitioner in the year 2010. The petitioner issued the impugned cheque of Rs.20 lacs in favour of the complainant which, on presentation, got dishonoured on account of “insufficient funds”. It was further submitted that concurrent findings of facts have been recorded by both the trial court as well as the appellate court. Learned counsel in support of his submissions, has relied upon judgments titled Rangappa vs. Sri Mohan reported as (2010) 11 SCC 441 and Hiten P Dalal vs. Bratindranath Banerjee reported as (2001) 6 SCC 16.
6. I have heard the learned counsel for the parties and have gone through the entire material placed on record.
7. During the trial, at the time of framing of notice under Section 251 Cr.P.C. on 19.05.2012, petitioner’s statement was recorded wherein he admitted that the impugned cheque belonged to his bank account. He also admitted his signatures on the cheque though he claimed that the particulars in the cheque have been filled up by another person. He also admitted the signatures on the “loan receipt” which was exhibited as Ex. CW1/1. He denied only a portion of the said “loan receipt”, where interest to be paid @ 2% was mentioned. The said “loan receipt” is reproduced herein:- “Ex CW1/1 This is to authenticate that Umesh Prasad r/o D-12/1/8, Rohini, Delhi-85. Has taken a loan of Rs.Fifteen lacs (15Lacs) from Mr. Srirangam Sriram. This loan is on interest of 2% per Month (Point A) Sd/- (Umesh) 13.10.2008 (Point P[1])”
8. The petitioner examined himself as DW-1. He not only admitted his signatures on the “loan receipt” but also admitted that it was written in his handwriting. The petitioner also relied upon the following documents:-
1) Appointment letter (Ex. PW1/X-1) issued by the complainant in favour of the petitioner appointing him as Assistant Manager-cum-Counselor in 2002;
2) An authorisation letter (Ex. PW1/X-3) issued by the complainant in favour of the petitioner; and
3) Vakalatnama (Ex. PW1/X-4) given by the complainant in favour of the petitioner.
9. Both the Trial Court as well as Appellate Court have disbelieved the defence of the petitioner that the said impugned cheque was given as security. Had that been the case, the same ought to have been mentioned in the “loan receipt” itself. The “loan receipt” clearly mentioned existence of loan of Rs.15 lacs. The petitioner has not only admitted his signatures but also the handwriting on the said “loan receipt”. The trial court has rightly believed the complainant that after accepting the loan of Rs.15 lacs against which the said “loan receipt” was executed, the petitioner further took a sum of Rs.[5] lacs from the complainant and issued a consolidated cheque for Rs.20 lacs for the repayment of the entire loan amount.
10. In Rangappa (Supra), the Supreme Court has held as under:-
13,533 characters total
“18. Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of
the Act. With respect to the facts of the present case, it must be clarified that contrary to the trial court's finding, Section 138 of the Act can indeed be attracted when a cheque is dishonoured on account of ‘stop payment’ instructions sent by the accused to his bank in respect of a post-dated cheque, irrespective of insufficiency of funds in the account.”
11. In Hiten (Supra), the Supreme Court has held as under:-
“22. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged 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 or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable
that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Section 3: Evidence Act. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
24. Judicial statements have differed as to the quantum of rebutting evidence required. In Kundan Lal Rallaram vs Custodian, Evacuee Property, Bombay AIR 1961 SC 1316, this Court held that the presumption of law under Section 118 of Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised under Section 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai vs State of Maharashtra AIR 1964 SC 575, where this Court reiterated the principle enunciated in State of Madras vs Vaidyanath Iyer (Supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption if drawn may be rebutted by an explanation which "might reasonable by true and which is consistent with the innocence" of the accused. On the other hand, in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. 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."
12. Recently, the Supreme court in Bir Singh v. Mukesh Kumar reported as (2019) 4 SCC 197, held as under:- “32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act.
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.
35. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondentaccused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.
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”.
13. The petitioner has admitted the cheque in question as well as his signatures on the same. He has also admitted the execution of the “loan receipt”, as well as his signatures and handwriting on the same. In view of the above admitted facts, this Court is of the view that the petitioner has admitted the existence of the debt. At the same time, he failed to rebut the presumption by raising any probable defence.
14. It is thus held that the petitioner has failed to discharge the onus and the presumption under Section 118A and 139 of NI Act has remained unrebutted.
15. Accordingly, I do not find any illegality or perversity in the concurrent findings of the fact recorded by the courts below. Resultantly, the present petition is dismissed. Miscellaneous application is disposed of as infructuous.
JUDGE
SEPTEMBER 24th, 2019
ga
Upgrade to Pro
This feature is available on the Pro plan. Upgrade to unlock full AI summaries, PDF downloads, and more.