Triyambak S. Hegde vs Sripad

HELD: 1. From the facts arising in this case and the nature of the rival contentions, the record would disclose that the signature on the documents at Exhibits P-6 and P-2 is not disputed. Exhibit P-2 is the dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be the position, as noted by the courts below a presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. Insofar as the payment of the amount by the appellant in the context of the cheque having been signed by the respondent, the presumption for passing of the consideration would arise as provided under Section 118(a) of N.I. Act. The said provisions are explicit to the effect that such presumption would remain, until the contrary is proved. [Paras 11, 12 and 13][97-D-G; 198-A]

2. In the instant facts, the case put forth was that there was a transaction between the parties where the respondent had agreed to sell the house towards which an advance amount of Rs. 3,50,000/- (Rupees three lakhs fifty thousand only) was paid. The cheque issued by the respondent was towards part repayment of the advance amount since the appellant realized that the respondent did not have proper title to the property and the transaction could not be carried forward. Since the signature on the agreement (Exhibit P-6) and more particularly the dishonored cheque (Exhibit P-2) was not disputed, the presumption as provided in law had arisen. Such presumption would remain till it is rebutted. The question however is as to whether, either from the material available on record or the nature of contentions put forth it could be gathered that the presumption had been rebutted by the respondent. As noted by the High Court, the contention of the respondent was that the relative of the appellant was the junior in the office of his advocate, who represented the respondent in a civil case. In that light, it was further contended that due to such dominant position, the respondent was made to sign on the agreement and the cheque though the money had not been paid. The said story was urged for the first time before the High Court. There is no such suggestion or admission to that effect as contended by the learned counsel for the respondent. In fact, the suggestion made to PW1 in his cross-examination is to contend that the cousin of the appellant was an advocate and as to whether he had consulted him before entering into the agreement, to which PW1 has answered that he did not find the need to do so. The admission that his cousin is an advocate does not lead to the conclusion that he had admitted that he was in a dominant position. [Para 17][200-D-H; 201-A]

3. Further, though the respondent had put forth the contention that a relative of the appellant was the junior of his advocate and he has used his dominant position to secure the signature on the cheque, there is absolutely no explanation whatsoever to indicate the reason for which such necessity arose for him to secure the signatures of the respondent, if there was no transaction whatsoever between the parties. That apart, the said story even to be examined was put forth for the first time before the High Court. As is evident from the records the notice issued by the appellant intimating the dishonorment of the cheque and demanding payment, though received by the respondent has not been replied. In such situation, the first opportunity available to put forth such contention if true was not availed. Even in the proceedings before the learned JMFC, the respondent has not put forth such explanation in the statement recorded under Section

313 of CrPC nor has the respondent chosen to examine himself or any witness in this regard. The said contention had not been raised even in the appeal filed before the learned Sessions Judge. [Para 19][201-E-H; 202-A-B]

4. Further, the story as put forth apart from being an afterthought, ex facie appears to be contrary to the records, as it is seen that the advocate in question whose junior was in a dominant position is the same learned advocate who had defended the respondent in this litigation. If what was being stated was the true fact, the respondent would have brought the same to the notice of the said advocate and in such situation would not have engaged the same advocate against whose junior he had a grievance and engage him to represent the case relating to dishonor cheque which was of the same subject matter. Further, if the cheque was secured in such circumstance and was not voluntary, it is difficult to comprehend as to why it would have been drawn for Rs.1,50,000/- (Rupees one lakh fifty thousand only) only when it is the case of the appellant that the advance amount paid was Rs.3,50,000/-(Rupees three lakh fifty thousand only) and had to get back the entire advance paid. The natural conduct would have been to secure for the full amount if that was the situation. Keeping all these aspects in view, the case put forth by the respondent does not satisfy the requirement of rebuttal even if tested on the touchstone of preponderance of probability. Therefore, in the present facts it cannot be held that the presumption which had arisen in favour of the appellant had been successfully rebutted by the respondent herein. The High Court therefore was not justified in its conclusion. [Para 20][202-B-F]

K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr. (1999)

7 SCC 510 : [1999] 3 Suppl. SCR 271 – relied on. Basalingappa v. Mudibasappa (2019) 5 SCC 418 : [2019]

6 SCR 555 – distinguished.

K. Chinnaswamy Reddy v. State of Andhra Pradesh and Anr. AIR 1962 SC 1788 : [1963] SCR 412; Kaushalya Devi Massand v. Roopkishore Khore (2011) 4 SCC 593 : [2011] 3 SCR 879 – referred to.