At, In the High Court of Bombay at Nagpur
By, THE HONOURABLE MR. JUSTICE MANISH PITALE
For the Appellant: M.R. Joharapurkar, Advocate. For the Respondent: Shashikant Borkar, Advocate.
1. By this appeal, the appellant (original complainant) has challenged judgment and order dated 19.06.2015 passed by the Court of Judicial Magistrate First Class, Nagpur (trial Court) in Summary Criminal Case no.12999 of 2013, whereby the respondent (original accused) has been acquitted by the trial Court for offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. The case of the appellant was that he was a super stockist of Pharmaceutical and Cosmetic items of various companies and that the respondent used to purchase certain items from it and that they had regular transactions. It was claimed by the appellant that the respondent had issued a cheque of Rs.49,444/- dated 16.01.2013 in favour of the appellant in respect of purchase of certain items. It was further the case of the appellant that when the said cheque was deposited, it was dishonoured. Therefore, the appellant was constrained to issue notice to the respondent for making good the payment for the value of the said cheque, but the respondent failed to respond to the said notice. Consequently, the appellant filed complaint before the trial Court against the respondent for an offence punishable under Section 138 of the said Act.
3. In order to support its case, the appellant placed on record bills dated 05.09.2011, 14.09.2011 and 09.05.2011 (Exhs. 19, 20 and 21) pertaining to items purchased by the respondent. The amounts stated in the said bills came to a total of Rs.49,444/-, which was the amount for which the cheque dated 16.01.2013 (Exh.22) had been issued by the respondent.
Please Login To View The Full Judgment!
The appellant also placed on record copy of the notice issued to the respondent and the cheque in question. Apart from this, a legally authorised person representing the appellant entered into the witness box and deposed in support of the complaint.
4. The respondent, neither sent any reply to the notice sent by the appellant nor did he file any submissions or reply in response to the complaint filed by the appellant before the trial Court. The respondent also did not enter the witness box in support of his defence. He simply relied upon the material placed on record by the appellant and cross-examination of the witness who had appeared in support of the complaint before the trial Court.
5. The trial Court considered the evidence and material on record and it found that although the respondent had not adduced any direct evidence, the material that came on record in cross-examination of the appellant was sufficient to support the defence of the respondent. The trial Court found that although the appellant had specifically claimed in the complaint that the cheque in question was issued by the respondent for cosmetic items, the bills at Exhs. 19, 20 and 21 demonstrated that the items purchased by the respondent were not cosmetic and that they were electrical items like hair straightners. The trial Court further found that the appellant had failed to place on record documents pertaining to payment of octroi on the items sold, which also indicated that the defence of the respondent was probable. On this basis, the trial Court found that although presumption may have arisen against the respondent, he had been able to rebut the same on preponderance of probabilities. Accordingly, the trial Court acquitted the respondent by the impugned judgment and order.
6. Mr. M.R. Joharapurkar, learned counsel appearing on behalf of the appellant, submitted that in the present case the respondent had failed to place on record any direct evidence in support of his defence, although it was stated in his statement recorded under Section 313 of the Code of Criminal Procedure that the cheque in question had been issued by way of security. It was further submitted that a perusal of the cross-examination of the witness of the appellant would show that the material that came on record supported the case of the appellant and not the defence of the respondent. It was submitted that the presumption under Sections 118 and 139 of the aforesaid Act operated against the respondent and that he had failed to bring on record any material to rebut the same. It was submitted that, in this situation, the trial Court could not have acquitted the respondent.
7. Mr. Shashikant Borkar, appointed advocate for respondent, submitted that the respondent was only required to demonstrate on the basis of the material on record that his defence was probable. It was submitted that the law did not require the respondent to produce direct evidence or even to enter the witness box to prove his defence in order to rebut the presumption under the provisions of the said Act. It was submitted that when the appellant itself had come with a case that the consideration for which the cheque was issued pertained to sale of cosmetic items, bills showing electric items sold to the respondent negated the case of the appellant. It was submitted that the presumption stood rebutted in the present case and the appellant had failed to prove its case before the Court. It was submitted that when the view taken by the trial Court was a possible view, no interference in appeal was warranted.
8. The learned counsel for both the parties relied on number of judgments pertaining to the effect of presumption under Sections 118 and 139 of the aforesaid Act and the manner in which such a presumption could be rebutted.
9. A perusal of Sections 118 and 139 of the aforesaid Act shows that when signature on a cheque is not disputed, it is to be presumed that the same was issued for consideration and for discharge of legal debt or liability. The presumption is certainly rebuttable on the touchstone of preponderance of probabilities. It is also clear that for rebutting the presumption, the accused need not necessarily adduce direct evidence and that he can do so even on the basis of the material brought on record by the complainant and by discrediting evidence of the witnesses appearing for the complainant. In this regard, the observations of the Hon'ble Supreme Court in the case of Rangappa .vs. Sri Mohan- (2010) 11 Supreme Court Cases 441 are relevant which reads as follows:-
'27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and inter