Partly allowed

Smt. Usha Khare v. Harpal Singh Chhabda

Chhattisgarh HC1 Jul 2024CRR/545/2016

Case brief

AI extract

What is this about?

Revision against upheld conviction under Section 138 NI Act for a dishonoured cheque issued to repay a hand loan. The court found the presumption under Section 139 unrebutted and declined to interfere with conviction, but reduced the three-month jail sentence by converting it into a fine/compensation of ₹3 lakh payable within three months.

What did the court decide?

Jail sentence of three months' SI set aside; applicant to pay ₹3,00,000 fine within three months, to be paid to complainant as compensation.

Smt. Usha Khare Vs Harpal Singh Chhabda — Cheque Dishonour | Chhattisgarh HC (2024)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRR No. 545 of 2016

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Reserved on : 03.05.2024

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Delivered on : 02.07.2024

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Smt. Usha Khare W/o A.K. Khare, aged about presently 61 years R/o Block 06/F, Street No. 03, Sector-6 Bhilai Nagar, P.S. Bhilai Nagar, District Durg, C.G.

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------Applicant

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VERSUS

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Harpal Singh Chhabda, S/o Harbansh Singh Chhabda, R/o Ward No. 11 Khandpara Dongargarh, District Rajnandgaon, C.G.

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------- Non-applicant

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For Applicant : Mr. Rajesh Jain, Advocate For Respondent : Ms. Aditi Singhvi, Advocate

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Hon'ble Shri Parth Prateem Sahu, Judge

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C.A.V. ORDER

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Applicant has filed this revision invoking the provisions under Section 397 read-with Section 401 of CrPC challenging the judgment of conviction and sentence passed in Criminal Appeal No. 13/2015 by learned Additional Judge of 1^st Additional Sessions Judge, Rajnandgaon, whereby the learned Appellate Court affirming the conviction passed by learned trial court, modified the sentence awarded and instead of 6 months’ RI and compensation of ₹ 2.50 Lakh has sentenced her to 3 months’ SI and compensation of 2.50 Lakh and in default of payment ₹ of compensation ordered to 01 month’s additional SI.

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Facts relevant for disposal of this revision are that the non-applicant filed an application under Section 138 of the Negotiable Instruments Act, 1881 (for short “Act of 1881”) pleading therein that the non-applicant/ complainant and the applicant-accused and her husband were known to each other for long time. Applicant obtained hand loan from nonapplicant/ complainant of 02 Lakhs with an assurance that she would ₹ return it back within three months. When the hand loan was not returned

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back to non-applicant, he visited the house of applicant-accused demanding back the money which he extended as hand loan. The applicant-accused handed over the non-applicant a cheque bearing No. 882836 dated 11.06.2010 towards returning back the hand loan. The said cheque was deposited by the non-applicant in his State Bank account which was returned back with a note that the balance is not sufficient. After returning of the cheque, non-applicant issued a legal notice demanding the cheque amount, however the cheque amount was not repaid by the applicant-accused and an application was filed before the trial court. Applicant produced the report of handwriting expert Dr. Sunanda Dhenge and examined her as DW-1 and Ashok Khare, husband of applicant, as DW-2, statement of applicant was also recorded under Section 313 of CrPC in which she stated that she has been falsely implicated, she is innocent. Learned Magistrate upon appreciation of the documentary and oral evidence placed on record by the respective parties had allowed the complaint holding the applicant guilty for commission of offence under Section 138 of the Act of 1881 convicted her to undergo six months’ RI and also imposed compensation to be paid to the tune of 2.50 Lakh under Section 357 of CrPC, in ₹ default of payment of compensation has imposed to undergo two months’ SI. The order passed by the Magistrate was put to challenge in an appeal and the learned appellate court upon appreciation of evidence and submission of learned counsel for the respective parties had upheld the judgment of conviction passed by the trial court, however, modified the sentence as mentioned above in preceding paragraph. Aggrieved with the judgment passed by the appellate court, applicant has filed this revision.

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Learned counsel for the applicant would submit that the learned courts below erred in convicting the applicant for commission of offence under Section 138 of the Act of 1881. Non-applicant/ complainant failed to

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prove the fact of handing over the huge amount of 2 Lakh to the ₹ applicant by admissible piece of evidence. There is no mention of date, time and place of handing over the amount of 2 Lakh in the complaint/ ₹ application. Non-applicant has not examined any supporting witnesses to prove the pleading made in the complaint of extending the hand loan to the applicant. Without proving the fact of handing over the amount of ₹ 2 Lakh as hand loan by admissible piece of evidence, the conviction of applicant under Section 138 of the Act of 1881 would not sustain. There are contradictions and omissions in the evidence of complainant/ nonapplicant. Learned trial court as also the appellate court failed to appreciate the evidence of handwriting expert in appropriate manner wherein the expert witness has stated that the age of the contents of the cheque and the age of signature is different and further that the content of cheque and the signature is not of one person. In alternate, he submits that if this Court comes to conclusion that order of conviction is based on appreciation of evidence, then this court taking lenient view may reduce the substantive jail sentence of applicant to the period already undergone by him.

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Learned counsel for non-applicant would oppose the submission of learned counsel for the applicant and would submit that the trial court as also the appellate court considering the provisions of Section 138, 118 and 139 of the Act of 1881 has rightly held the applicant guilty of commission of offence under Section 138 of the Act of 1881. The signature on the cheque is not denied by the applicant, there is presumption under Section 139 of the Act of 1881 in favour of the holder of the instrument/ cheque that, it has been issued in discharge of liability. In support of his submission, she relied upon the decision of Hon’ble Supreme Court in the case of Rohitbhai Jivanlal Patel vs. State of Gujarat and another [(2019) 18 SCC 106].

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I have heard learned counsel for the respective parties.

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The main thrust of contention of learned counsel for applicant is in two folds, firstly that the non-applicant/ complainant had not pleaded any specific pleading as to the date, time and place of extending the hand loan of 2 Lakh and further that the particulars of the cheque are of ₹ different person and the signature on the cheque is of different person and further that the age of contents of the cheque and the signature is different. Undisputedly, the applicant accused has not in specific term has denied the signature over the cheque. No material has been brought by the applicant-accused before the trial court as to how the cheque came in possession of the non-applicant/ complainant and further has not taken any action against the non-applicant/ complainant after getting notice of dishonoring of the cheque and making demand of the cheque amount. Section 118 of the Act of 1881 envisages “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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; (b) as to date —that every negotiable instrument bearing a date was made or drawn on such date;(c) as to time of acceptance —that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;(d) as to time of transfer —that every transfer of a negotiable instrument was made before its maturity; (e) as to order of endorsements —that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps —that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course —that the holder of a negotiable instrument is a holder in due course.” Further the provisions under Section 139 of the Act envisages “Presumption in favour of holder.—

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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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In the statement recorded under Section 313 of CrPC, the applicant accused admitted Ext. P-6 to the receipt of registered post, Ext. P-7 the UPC and Ext. P-8 to be the acknowledgment, however she only stated that the non-applicant/ complainant is stating false and thereafter she stated that she is innocent, she has been falsely implicated. Except the aforesaid statement recorded under Section 313 CrPC there is nothing on record from the part of applicant-accused to show as to how the cheque leaf from the cheque book issued by her came in possession of non-applicant/ complainant and further that after getting knowledge of the notice of dishonoring of the cheque demanding back the amount, whether she has taken any action against non-applicant/ complainant.

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Sofar as, the submission made by the counsel for applicant based on the report of the handwriting expert and her deposition (DW-1), learned appellate court observed that the applicant-accused has not denied her signature in the cheque except the handwriting of the applicant-accused. The handwriting expert DW-1 has not examined the handwriting of nonapplicant/ complainant and therefore it is not proved that the cheque was filled by non-applicant.

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The presumption under Section 139 of the Act of 1881 is a presumption of law. Presumptions are rules of evidence and do not conflict with the presumption of innocence. Presumption of innocence is undoubtedly a human right. However, 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. The object of Section 138 of the Act of 1881 is to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of

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negotiable instruments including cheques in financial transactions. The penal provision of Section 138 of the 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. Hon’ble Supreme Court in the case of Bir Singh vs. Mukesh Kumar [(2019) 4 SCC 197] has observed thus:

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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.

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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 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.

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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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Hon’ble Supreme Court in the case of Laxmi Dyechem vs. State of

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Gujarat [(2012) 13 SCC 375] held that in view of Section 139 it has to be presumed that a cheque was issued in discharge of a debt or other liability but the presumption can be rebutted by adducing evidence and the burden of proof was however on the person who wanted to rebut the presumption. However, this presumption coupled with the object of

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Chapter XVII of the Act leads to the conclusion that by countermanding payment of post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act. Hon’ble Supreme Court in the case of Kumar Exports vs. Sharma Carpets {(2009) 2 SCC 513] observed that there is presumption that every negotiable instruments deal with discharge of debt or liability but the presumption is rebutable by proving the contrary.

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The proposition of law which emerges from the judgments as discussed 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. Hon’ble Supreme Court in the

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case of Rohitbhai Jivanlal Patel (supra) has observed thus:

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“ 20. Hereinabove, we have examined in detail the findings of the trial court and those of the High Court and have no hesitation in concluding that the present one was clearly a case where the decision of the trial court suffered from perversity and fundamental error of approach; and the High Court was justified in reversing the judgment of the trial court. The observations of the trial court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in the know of facts, etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the

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presumption or not. The other observations as regards any variance in the statement of complainant and witness; or want of knowledge about dates and other particulars of the cheques; or washing away of the earlier cheques in the rains though the office of the complainant being on the 8th floor had also been irrelevant factors for consideration of a probable defence of the appellant. Similarly, the factor that the complainant alleged the loan amount to be Rs 22,50,000 and seven cheques being of Rs 3,00,000 each leading to a deficit of Rs 1,50,000, is not even worth consideration for the purpose of the determination of real questions involved in the matter. May be, if the total amount of cheques exceeded the alleged amount of loan, a slender doubt might have arisen, but, in the present matter, the total amount of 7 cheques is lesser than the amount of loan. Significantly, the specific amount of loan (to the tune of Rs 22,50,000) was distinctly stated by the appellant-accused in the aforesaid acknowledgment dated 21-3-2017.”

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For the foregoing discussion, I do not find any error or any infirmity in the finding recorded by learned trial court and affirmed by the appellate court and therefore I do not find any good ground to interfere the finding of conviction of applicant for commission of offence under Section 138 of the Act of 1881.

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Sofar as the jail sentence of applicant for three months’ SI is concerned, from the documents available in record it is appearing that the nonapplicant is working as Teacher, she is a lady and the provisions under Section 138 envisages the sentence of imprisonment for a term which can be extended for two years or with fine which may extend to double the amount of cheque or both. Considering the facts and circumstances of the submission of learned counsel for applicant on the sentence, I am of the view that enhancing the amount of compensation to be paid to non-applicant would subserve the interest of justice, accordingly the sentence awarded by the appellate court of three months’ SI and the compensation of 2.50 Lakh and in default two months’ SI, is modified ₹ and the applicant is sentenced to pay the fine amount to the tune of ₹ 3,00,000/- (Rupees Three Lakhs) within a period of three months. Upon

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deposit of the amount of fine, it shall be paid to the non-applicant/ complainant as compensation.

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