Negotiable Instruments Act, 1881 – s.138 – Dishonour of cheque – Appellant acquitted by trial court – Acquittal reversed by High Court – On appeal, held: Respondent successfully discharged the initial burden cast on him – He established that the cheque signed by the appellant was issued in his favour towards discharge of a legally recoverable amount – Parties were known to each other – Appellant admitted about an earlier transaction where he had borrowed the amount and repaid – This indicates that the parties had entered into financial transactions earlier as well and another transaction was probable between them – Respondent discharged the burden of proving that the transaction had actually taken place – To rebut the same, the defence put forth by the appellant that the documents and cheque in the present proceedings were obtained by threatening him had already been considered in a separate proceeding and the respondent was acquitted therein – Acquittal of the appellant not justified – Impugned judgment not interfered with – Code of Criminal Procedure, 1973 – ss.2(d) r/w 200 – Penal Code, 1860 – ss.365, 342, 323, 506.
Negotiable Instruments Act, 1881 – ss.118(a), 139 – Presumption under – Onus to rebut – Standard of proof – Discussed. Dismissing the appeal, the Court
HELD: 1.1 The legal aspect relating to the presumption arising in law when a cheque is issued, is to be noted at the threshold. The initial burden is placed on the complainant to discharge. When a cheque is drawn out and is relied upon by the drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities. [Paras 8, 11][658-B-C; 662-G-H]
K.Prakashan vs. P.K. Surendran (2008) 1 SCC 258 : [2007] 10 SCR 1010; Triyambak S. Hegde vs. Sripad in Criminal Appeal Nos. 849-850 of 2011 – relied on.
Reverend Mother Marykutty vs. Reni C. Kottaram & Anr. (2013) 1 SCC 327 : [2012] 9 SCR 530; Kalamani Tex & Anr. vs. P. Balasubramanian (2021) 5 SCC 283 : 2021 (2 ) JT 519 – referred to.
1.2 It was the case of the respondent that the appellant had borrowed the sum of Rs.3,75,000/- on 12.06.2003 which was agreed to be repaid with interest in six months. Hence, cheque No.062589 dated 12.12.2003 for Rs.4,00,000/- drawn on Corporation Bank was issued. The respondent had relied on an ‘on demand promissory note’ and had stated that one Mr. ‘HM’ was also present. The said Mr. ‘HM’ who had also signed as witness to the ‘on demand promissory note’ was not examined as a witness due to which the trial Judge held the transaction as not proved and in that context it was held that the respondent has failed to prove the case beyond reasonable doubt. However, the respondent had tendered evidence relating to the cheque being issued and had discharged the initial burden. The entire consideration by the Trial Judge to arrive at his conclusion was predicated on the allegation levelled by the appellant that an incident had occurred on 20.01.2004 when the respondent is stated to have obtained the cheque and signatures on certain blank papers by using force. Much is made about the respondent having presented the cheque during February 2004 to assume that he would not have waited that long if the cheque was really dated 12.12.2003 and was issued earlier. Such an assumption would not be justified when, in fact, the cheque is dated 12.12.2003 and was presented within its period of validity. To assume the incident alleged by the appellant to have occurred on 20.01.2004 to be true, the cheque ought to have been dated on or after 20.01.2004. The date of presentation of the cheque is of no consequence provided it is presented within its validity period. That the alleged offence had been committed by the respondent on 20.01.2004 itself, was considered in C.C. No.6318/2004. When a jurisdictional Court had gone into the very same allegation and had rendered its judgment on 06.12.2006, another court exercising co-ordinate jurisdiction could not have brushed it aside lightly. The sum and substance of the defence is that the documents and cheque had been obtained by the respondent on 20.01.2004 by threatening the appellant. In that regard, the circumstances thereto were referred and it has been categorically stated that the appellant had filed a complaint, pursuant to which a case was registered against the respondent for the offence punishable under Sections 365, 342, 323 and 506 of IPC. To arrive at the negative findings on the points raised, the Magistrate has assigned detailed reasons and has arrived at the conclusion that the evidence of the complainant in respect of the incident alleged to have taken place near the Taluk office, is not at all acceptable and therefore the prosecution has failed. Further, though an investigation was conducted in the said proceedings and the trial had proceeded, no material objects had been seized, which has been commented upon by the Magistrate. The same would indicate that the cheques and other documents relied upon in the present proceedings, were not found to be created by threatening the appellant, as alleged. The Court had therefore arrived at the conclusion that the prosecution had miserably failed to prove its case beyond all reasonable doubts against the accused for the alleged offences. The said finding and conclusion arrived at in the relevant proceedings would indicate that the incident alleged to have occurred on 20.01.2004, was not proved to have taken place. If that be the position, the defence sought to be put forth in the instant case and the witnesses examined in the instant proceedings are only by way of improvement in respect of the same cause of action. Therefore, the defence sought to be put forth relating to the cheque and other documents having been obtained by force, cannot be accepted as a probable defence when the respondent successfully discharged the initial burden cast on him of establishing that the cheque signed by the appellant was issued in his favour toward discharge of a legally recoverable amount. The fact that the appellant has admitted about an earlier transaction where according to him, he had borrowed the amount and repaid the same in the year 1995, would indicate that the appellant and the respondent had entered into financial transactions earlier as well and another transaction was probable between the parties who were known to each other. The respondent had discharged the burden of proving that the transaction had actually taken place. To rebut the same, the very case put forth by the appellant cannot be accepted as probable defence since the said aspect had already been considered in a separate proceeding (C.C.No.6318/2004) and the respondent had been acquitted in the said proceedings. The conclusion reached by the Magistrate to acquit the appellant herein was not justified. The Single Judge of the High Court was therefore justified in his conclusion though detailed reasons have not been assigned. No reason to interfere with the judgment passed by the High Court impugned in this appeal. [Paras 12, 13, 15 - 18][663-A-G; 665-D-F; 666-E-H; 667-A-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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