Allowed

Rajesh Das v. Salikram

Chhattisgarh HC8 Jan 2021ACQA/351/2019

Case brief

AI extract

What is this about?

The High Court, Bilaspur, allowed the revision petition against an acquittal. It held that the drawer is liable even if the cheque was issued in blank and filled by the holder, as the burden to prove non-existence of debt lies on the accused under Section 139.

What did the court decide?

Impugned order setting aside conviction set aside; order of conviction affirmed; fine enhanced to Rs. 2,00,000/- payable within 8 weeks.

Rajesh Das Vs Salikram — Cheque Dishonour | Chhattisgarh HC (2021)

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 582 of 2012

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Rajesh Das S/o Late Shri Vimal Das, Aged about 29
years, R/o Mathpara kawardha, At present Raipur
Road Kawardha, Distt. Kabeerdham, Chhattisgarh.

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 ---Petitioner

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Versus

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Salikram S/o Khorbahara chandravanshi, R/o
Village Biranpur, Tahsil Pandariya, Distt.
Kabeerdham, Chhattisgarh.

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 --- Respondent

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ACQA No. 351 of 2019

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Rajesh Das S/o Late Shri Vimal Das, Aged about 29
years, R/o Mathpara kawardha, At present Raipur
Road Kawardha, Distt. Kabeerdham, Chhattisgarh.

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 ---Petitioner

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Versus

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Salikram S/o Khorbahara chandravanshi, R/o
Village Biranpur, Tahsil Pandariya, Distt.
Kabeerdham, Chhattisgarh.

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 --- Respondent

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For Petitioner :-Mr. Awadh Tripathi, Advocate
For Respondent:-Mr. Vikas Pandey, Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal

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Order on Board

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08/01/2021

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1. Since common question of law is involved in both of these cases, they are heard together and are being disposed of by this common order.

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2. The petitioner/complainant filed a complaint against the respondent/accused under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter, “the NI Act”) stating inter alia that in discharge of his liability towards the petitioner/complainant, on 04/11/2008, the respondent/accused issued a cheque bearing No. 728602 of the Durg Rajnandgaon Gramin Bank Branch Kawardha for Rs. 1,50,000/-. The petitioner/complainant presented the said cheque to his Bank on the next day i.e. 05/11/2008 and

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it was dishonoured and was returned to him on
thesameday.Thereafter,the

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petitioner/complainant issued a notice to the
respondent/accused on 10/11/2008 by registered
post which was served to him on 21/11/2008. The
respondent/accused still did not pay the amount
in dispute which led to the filing of the
complaint by the petitioner/complainant before
the jurisdictional criminal Court.

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3. The respondent/accused abjured his guilt and entered into defence and examined himself as

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defence witness stating inter alia that he had
signed a blank cheque with relation to an
earlier transaction regarding the repair work of
his tractor and it has been misused by the
petitioner/complainant and even the particulars
of the cheque were not filled by him.

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4.Learned trial Court, after evaluation of oral
and documentary evidence on record, convicted
the respondent/accused vide order dated
05/11/2011 for offence punishable under Section
138 of the NI Act and sentenced him to
imprisonment for one year and simultaneously
also imposed a fine of Rs. 5,000/- upon him and
also prescribed a default sentence in case the
fine is not deposited by him.

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5. Feeling aggrieved by the order of conviction passed by the trial Court and the sentence imposed therein, the respondent/accused

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preferred an appeal before the Court of
Sessions. The petitioner/complainant also
preferred a revision against the order of the
trial Court for enhancement of the sentence as

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wellasfineimposeduponthe

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respondent/accused.

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6. Eventually, learned Additional Sessions Judge allowed the appeal of the respondent/accused vide impugned order dated 10/07/2012 and set aside the order of conviction passed by the trial Court and also dismissed the revision of the petitioner/complainant.

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7.The instant petition as well as the acquittal
appeal, both have been filed by the
petitioner/complainant against the order of the
Sessions Court acquitting the respondent/accused
and dismissing the revision for enhancement of
sentence as well as fine imposed by the trial
Court upon the respondent/accused.

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8. Mr. Awadh Tripathi, learned counsel appearing

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for the petitioner/complainant, would submit
that learned Additional Session Judge is
absolutely unjustified in holding that the
petitioner/complainant has failed to prove that
the cheque in question was issued by the
respondent/accused in discharge of his debt or
liability, as there is a presumption under
Section 139 of the NI Act though it is a
rebuttable presumption and the burden of proof
lies upon the drawer of the cheque by adducing
rebuttal evidence to prove that he did not issue

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the cheque towards any antecedent liability. He
would further submit that the respondent/accused
having admitted his signature on the blank
cheque cannot disown his liability by asserting
that the cheque has been misused and he has not
filled the particulars of the cheque, as such,

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the impugned order passed the Additional
Sessions Judge reversing the order of conviction
of the respondent/accused for offence punishable

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under Section 138 of the NI Act passed by the
trial Court deserves to be set aside and the
order dismissing the revision petition also
deserves to be set aside.

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9.Mr. Vikas Pandey, learned counsel appearing for
the respondent/accused, would support the
impugned order passed by learned Additional
Sessions Judge by which he has acquitted the
respondent/accusedholdingthatthe

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petitioner/complainant has failed to prove that
the cheque in question was issued by the
respondent/accused in discharge of his liability
is a finding based on evidence available on
record, as such, the appellate Court has rightly
acquitted the respondent/accused for offence
punishable under Section 138 of the NI Act.

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10.I have heard learned counsel for the parties,
considered their rival submissions made herein-
above and perused the records with utmost
circumspection.

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petitioner/complainant for Rs. 1,50,000/- which
was presented by the petitioner/complainant
before his Bank on 05/11/2008 and the same day
it stood dishonoured. Thereafter, in order to
institute the complaint under Section 138 of the
NI Act, the petitioner/complainant issued a
notice on 10/11/2008 which was served to the
respondent/accused on 21/11/2008. Since no reply

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tothenoticewasfiledbythe
respondent/accused, the petitioner/complainant
filed a complaint against him under Section 138
of the NI Act in which cognizance was taken
against him for offence punishable under Section
138 of the NI Act and the respondent/accused
having entered into defence, denied the charges
and took a specific defence that though he had

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nodebtorliabilitytowardsthe
petitioner/complainant but yet he had signed a

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blank cheque in relation to some other earlier
transaction.

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12. Learned trial Court convicted the

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respondent/accused for offence punishable under
Section 138 of the NI Act finding the
ingredients of the same which was reversed by
the appellate Court primarily on the ground that
the petitioner/complainant has failed to prove
that the cheque in question was issued by the
respondent/accused in discharge of his existing
liability towards the petitioner/complainant.

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13.At this stage, it would be appropriate to notice
Section 139 of the NI Act which states as
under :-

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“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.”

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14.Section 139 of the NI Act mandates that unless
the contrary is proved, it is to be presumed
that the holder of the cheque received the
cheque of the nature referred to in Section 138

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for the discharge in whole or in part of any
debt or other liability. However, the
presumption is rebuttable by proving to the
contrary. Section 139 of the NI Act introduces

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an exception to the general rule as to the
burden of proof and shifts the onus on the
accused to prove by cogent evidence that there
was no debt or liability. Mere denial or
rebuttal by the accused is not enough.

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15.In the matter of Bir Sngh v. Mukesh Kumar1,
Their Lordships of the Supreme Court reviewed
the earlier case law on this point and held as
under :-

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“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
NegotiableInstrumentsActisa
presumption of law, as distinguished from
presumption of facts. Presumptions are
rules of evidence and do not conflict with
the presumption of innocence, which
required 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

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1 (2019) 4 SCC 197

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fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal. ”

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16.Following the principle of law laid by Their
Lordships of the Supreme Court in the matter of
Bir Singh (supra), there is no iota of doubt
that the presumption under Section 139 of the NI
Act is presumption of law and the accused has to
adduce evidence showing the reasonable
possibility of non-existence of the presumed
fact as held by Their Lordships in the matter of
Hiten P. Dayal v. Bratindranath Banerjee2.

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17.In the instant case, no evidence has been
adduced by the respondent/accused in rebuttal of
the presumption enumerated under Section 139 of
the NI Act showing that he had not drawn the
cheque in question in favour of the
petitioner/complainant for Rs. 1,50,000/- in
discharge of his liability towards the
petitioner/complainant.Assuch,learned

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Additional Sessions Judge failed to notice the
presumption as is available under Section 139 of

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the NI Act and is absolutely unjustified in

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2 (2001) 6 SCC 16

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holding that the petitioner/complainant has
failed to prove that the cheque in question was
issued by the respondent/accused in discharge of
his debt or liability, as such, th finding
recorded by learned Additional Session Judge
deserves to be set aside.

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18.Now, coming to the next contention of learned
counsel for the respondent/accused that the
respondent/accused had signed a blank cheque and
had not even filled the particulars of the
cheque which has been misused by the
petitioner/complainant, therefore, he is not
liable to pay the petitioner/complainant
further.

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19.Their Lordships of the Supreme Court considered
this issue in the matter of Bir Singh (supra)
and held as under in paragraphs 33 to 36 :-

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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

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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.

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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.

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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
respondent-accused 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.

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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.”

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20.Reverting to the facts of the present case in
light of the principle of law laid down by Their
Lordships of the Supreme Court in Bir Singh
(supra), it is a case of the respondent/accused
from day one that he had signed a blank cheque
and other particulars of the cheque were not

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evenfilledbyhimratherbythe

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petitioner/complainant who has misused the
cheque in question. It is not the case of the
respondent/accused that he has never even signed

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andissuedthechequetothe

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petitioner/complainant and it is the admitted
position on record that the blank cheque was
signed by the respondent/accused and was handed
over by him to the petitioner/complainant which
goes to show that the cheque was issued by the
respondent/accused himself in favour of the
petitioner/complainant. Therefore, it cannot be

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held that no such cheque was issued by the
respondent/accusedinfavourofthe

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petitioner/complainant and merely on the basis
that a blank cheque was issued by the
respondent/accused, he cannot escape from his
liability to pay the amount of the said cheque
to the petitioner/complainant.

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21.Consequently, the impugned order passed by the
appellate Court holding that the cheque was not
issued by the respondent/accused in discharge of
hisdebtorliabilitytowardsthe

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petitioner/complainant, therefore, he is not
responsible to pay the amount of the cheque to
the petitioner/complainant is contrary to the

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law and facts available on record. It deserves

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to be and is hereby set aside and the order of
conviction passed by the trial Court is
affirmed. However, the respondent/accused is
sentenced only for a fine which is enhanced to
Rs. 2,00,000/- and shall be paid as a
compensation to the petitioner/complainant
before the trial Court within 8 weeks from today

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failing which the respondent/accused will be

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sentenced for imprisonment of one year as
imposed by the trial Court.

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22. Both the matters, being CrMP No. 582/2012 and

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ACQA No. 351/2019 are accordingly disposed of in

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terms of the order passed above. No cost(s).

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

Rajesh Das v. Salikram

Case brief

What is this about?

What did the court decide?

Rajesh Das v. Salikram

Case brief

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