w w w . L a w y e r S e r v i c e s . i n



Prasanta Lenka v/s Birendra Nath Rana


Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- BIRENDRA & BIRENDRA PRIVATE LIMITED [Active] CIN = U00330BR1958PTC000629

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

Company & Directors' Information:- RANA & CO. PRIVATE LIMITED [Strike Off] CIN = U51109DL1997PTC090894

    Crl.Rev. No. 613 of 2016

    Decided On, 03 January 2020

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE D. DASH

    For the Petitioner: M/s. S. Mishra, S. Nanda, S.K. Samantaray, S. Modi, E. Agarwal, Advocates. For the Opposite Party: D. Samal, M/s. N. Singh, S.K. Giri, A. Rout, Advocates.



Judgment Text


1. The petitioner, by filing this revision, has called in question the legality and propriety of the judgment dated 23.7.2016 passed by learned Sessions Judge, Balasore in Criminal Appeal No. 83 of 2015 by which the judgment of conviction of the petitioner for commission of offence under section 138 of the Negotiable Instrument Act (for short, called "the N.I. Act") and the order of sentence as well as the direction for payment of compensation passed by the learned J.M.F.C., Jaleswar on 30.11.2015 in I.C.C. No. 34 of 2015 have been confirmed.

The opposite party (complainant) had filed the complaint arraigning the petitioner (accused) alleging the commission of offence under section 138 of the N.I. Act. The trial court having convicted the accused for commission of offence under section 138 of the N.I. Act had sentenced him to undergo simple imprisonment for a period of one year and pay compensation of Rs.6.00 lakh with the default stipulation as to undergo simple imprisonment for three months.

Being aggrieved by the same, the petitioner (accused) had filed the appeal. The appellate court while confirming the finding of conviction as returned by the trial court has refused to interfere with the order of sentence as also the direction of payment of compensation. Hence, this revision.

2. The case of the complainant is that the accused was in need of money to clear up the loans incurred by him for meeting the expenses for construction of house, the educational expenses of his children etc. For the purpose on 18.3.2014 the accused had taken a friendly loan of Rs.5.50 lakh from the complainant. For the sake of evidence, the accused had executed an agreement which had been notarized. By that agreement, accused having acknowledged the receipt of money, had undertaken to refund the said amount without interest within a period of nine months. After expiry of the stipulated period of payment as agreed upon, the complainant requested the accused to pay back the said sum. On 12.1.2015, in order to discharge the debt and liability as aforesaid, the accused issued a cheque of Rs.5.50 lakh bearing no. 320675 dated 12.1.2015 drawn on his account at Oriental Bank of Commerce, Badabazar, Jaleswar Branch in favour of the complainant. He then having presented the cheque with his banker i.e. State Bank of India, Jaleswar for collection of the amount covered under the cheque, the same stood dishonoured for insufficient fund in the account of the accused on which the cheque had been drawn. The complainant thereafter demanded the payment of said amount covered under the cheque in terms of proviso (b) to section 138 of the N.I. Act. There being no response from the side of the accused to the said notice of demand, the complaint ultimately filed the complainant.

The plea of the accused is that of denial and false implication.

3. Before the trial court, the complainant examined himself as P.W.1 and two other witnesses P.Ws.2 and 3. He also proved the cheque (Ext.1), other documents as to the dishonour of the cheque and the demand notice issued by him. The agreement evidencing the transaction has been admitted in evidence and marked as Ext.11.

The accused has examined himself as D.W.1 and two other witnesses in support of his defence.

4. The trial court on the basis of the evidence on record has drawn the presumption under section 139 of the N.I. Act that the accused had issued the said cheque in favour of the complainant for discharge of his debt and liability. Then on analysis of evidence, the trial court having concluded that the presumption has not been rebutted, a finding has been returned holding the accused guilty of offence under section 138 of the N.I. Act. Accordingly, he has been sentenced and directed to pay the compensation as above stated.

The appellate court addressing the contentions raised by the accused has finally concurred with the views taken by the trial court. Accordingly, the appeal has been dismissed.

5. Learned counsel for the petitioner (accused) submitted that the sole question that arises for consideration here in this revision is as to whether the accused has been able to rebut the presumption as available under section 139 of the N.I. Act in respect of issuance of the cheque in question i.e. Ext. 1 which has been dishonoured and for subsequent non-payment of the said amount as demanded by the complainant, the complaint has been lodged stands rebutted. It was his submission that on the face of the evidence on record, in the backdrop of the settled position of law that the presumption available under sections 118 (a) and 139 of the N.I. Act is rebuttable in nature and in order to rebut the said presumption what is needed is to raise a probable defence and for that purpose, without even disproving the existence of consideration by the defence by leading the evidence, the evidence adduced on behalf of the complainant would well be relied upon and the standard of proof evidently is preponderance of probability with the drawal of inference from the material on record as well as with reference to the circumstance upon which the defence places reliance; the courts below ought to have held that the presumption has been well rebutted. According to him, as per the settled law, it is not necessary that the defence must disprove the prosecution case in its entirety and the initial burden as above is discharged by the accused, the onus shifts to the complainant so as to establish the subsisting debt and liability as on the date of the demand of payment of the money covering under the cheque in question. He therefore submitted that the findings of the courts below suffer from the vice of perversity in the sense that without going for a critical analysis of evidence of P.W.1 and P.W.2 which negate a case that he being the holder of the cheque had received the cheque for consideration for the discharge of the debt by the accused, the courts below having rendered the findings, those are liable to be set aside being completely against the weight of evidence and rather contrary to the evidence on record. He therefore submitted that it is a fit case to interfere with the finding of conviction and set it at naught in exercise of the revisional jurisdiction.

He placed reliance on the following decisions which would be referred to in due course:-

(i) T. Nagappa v. Y.R. Muralidhar; (2008) 2 SCC (CRI) 677;

(ii) K.S. Subramani v. K. Damodara Naidu; (2015) 1 SCC 576; and

(iii) Rohitbhai Jivanlal Patel v. State of Gujarat; AIR 2019 SC (CRI) 775.

6. Learned counsel for the opposite party (complainant) submitted that the courts below after going through the evidence let in by the parties have rightly come to the conclusion that the complainant has fulfilled all the requirements as per the provision of section 138 of the N.I. Act and when nothing substantial has come from the side of the accused through evidence so as to discard or disbelieve the version of the complainant, P.W. 1; the courts below are right in convicting the accused for offence under section 138 of the N.I. Act. He submitted that when the accused admits to have given the signed cheque to the complainant and thereafter prior to the lodging of the complaint had not relied to the notice of demand of payment made by the complainant when the cheque got dishonoured disclosing the fact that said signed blank cheque had been misused by putting inflated sum of Rs.5.50 lakh instead of Rs.30,000/- which was the loan amount no such fault can be found with the findings of the courts below that the accused has failed to rebut the presumptions available under section 118 (a) read with 139 of the N.I. Act. According to him, when the complainant has successfully proved the issuance of cheque which admittedly contains the signature of the accused and that cheque since bounced back without the collection of the amount stated therein for insufficiency of fund in the concerned account; on the basis of the evidence on record; the courts below are right in rendering the finding of guilt against the accused and thus there surfaces no such perversity warranting inference with said concurrent finding in exercise of revisional jurisdiction.

Proceeding to explain the evidence of P.Ws. 1 and 2 as highlighted by the learned counsel for the petitioner, he submitted that all those have been taken into consideration by the courts below in their proper perspective and the ultimate conclusion being founded upon just and proper appreciation of evidence in the backdrop of the rival case; further in the touchstone of settled position of law; the revision sans merits.

In support of his contentions, he has placed all the decisions of the Apex Court as noted below which would come up for discussion hereinafter.

(i) Prem Thakur v. State of Punjab; AIR 1983 SC 61.

(ii) Kumar Experts v. Sharma Carpets; (2009) 2 SCC 513;

(iii) Bir Singh v. Mukesh Kumar; AIR 2019 SC 2446;

(iv) Robitbhai Jivanlal Patel v. State of Gujarat; AIR 2019 SC (CRI) 775 (Relied upon by the petitioner);

(v) M/s. Shree Daneshwari Traders v. Sanjay Jain; AIR 2019 SC 4003; and

(vi) Uttam Ram v. Devinder Singh Hudan; AIR ONLINE 2019 SC 1285.

7. Before proceeding to delve upon the contentions raised by the learned counsel for the parties, it is felt apposite to take note of the settled position of law on those scores as in the touchstone of the same, the contentions stand to be addressed.

8. The Hon'ble Apex Court in case of "M.S. Narayana Menon @ Mani v. State of Kerala and another" (2006) 6 SCC 39 has held that the presumptions available under section 118 (a) and 139 of the N.I. Act would stand to hold the field as such that said cheque had been made or drawn for consideration and was with the holder for the discharge of debt or other liability, either in whole or in part unless and until upon consideration of the matter, the court either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. It has further been held that for the said purpose the evidence adduced on behalf of the complainant would be well relied upon.

In the above case, the accused having clearly said that nothing was due and the cheque was issued by way of security, in the absence of satisfactory proof about the existence of debt in respect of large part of the said amount; the defence being found to be acceptable as a probable one, the Apex Court has taken the view that the cheque has not been issued in discharge of the debt as the issuance of the cheque for security or for any other purpose does not attract the penal provision contained in section 138 of the N.I. Act. In the proven facts and circumstances of the case, the Apex Court having found itself in agreement with the finding of the trial court that the accused has discharged the burden of proof in rebutting the presumption in view of the fact that the complainant had no sufficient funds to advance such amount; the diary recording the transaction being not proved to show the subsistence of debt to a larger extent that too in the absence of any such acceptable evidence coming on record as to the existence of any commercial or business transaction between the parties, those have been taken as the circumstances leading to the drawal of inference in favour of raising of the probable defence as sufficient to rebut the presumption.

It has further been held therein that the court may not insist upon the accused to disprove the existence of consideration by leading direct evidence as the non-existence by leading negative evidence may neither be possible nor is contemplated and even if led is to be seen with due suspicion. The standard of proof evidently is preponderance of probabilities and the drawal of inference is permissible from the preponderance of probabilities not only from the materials on record but also with reference to the circumstances upon which reliance on that score is placed. The above positions have been reiterated in case of K. Prakashan v. P.K. Surenderan; 2007 (3) Apex Court Judgments 429 (SC).

9. In case of "K. Subramani (supra) cited by the learned counsel for the petitioner (accused), the same principles of law being restated; in the given facts and circumstances, upon acceptance of the finding of the trial court that the complainant had no source of income to lend such huge amount of Rs. 14.00 lakh to the accused; the court has thus gone to hold that he has failed to prove that any legally recoverable debt was payable by the accused to the complainant.

10. In a recent case of "Basalingappa v. Mudibasappa" in Criminal Appeal No. 636 of 2019 arising out of SlP (Crl.) No. 8641 of 2018 disposed of on 9.4.2019 again by reiterating the same principles of law as noted above, taking into consideration, the evidence on record, the Apex Court has summarized those at para-23 of the judgment, which are as under:-

"i) Once the execution of cheque is admitted section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

ii) The presumption under section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

iv) That it is not necessary for the accused to come in the witness box in support of his defence, section 139 imposed an evidentiary burden and not a persuasive burden.

v) It is not necessary for the accused to come in the witness box to support his defence."

Applying the propositions of law as noted above to that case by proceeding to raise the presumption under section 139 of the Act taking note of the evidence of P.W.1(complainant) that he has no remembrance as to the fact whether the cheque was issued in relation to the loan of Rs.25,000/- taken by the accused as well as his evidence that he retired in 1997 receiving the monetary benefit of Rs.8.00 lakh which he encashed and finding from his evidence that when the cheque had been issued on 27.2.2012, there is even no suggestion that a post dated cheque had been given to him in November, 2011 bearing the date, i.e. 27.02.2012; the evidence let in by the complainant to have filed suit against one Balama Gouda for recovery of loan of Rs.7,00,000/- indicating payment of Rs.7,00,000/- in December, 2009, Rs.4,50,000/- in 2010 and loan of Rs.50,000/- for which he filed complaint in 2012; the Apex Court has arrived at a conclusion that there was burden upon the complainant to prove his financial capacity. In view of evidence that during the year 2010-11 as per the case of the complainant, he made payment of Rs.18.00 lakhs and when he has failed to give satisfactory reply during cross-examination being questioned as regards his financial capacity to pay Rs.6.00 lakhs to the accused; the Apex Court has said that the accused has been able to raise a probable defence shifting the burden on the complainant to prove his financial capacity and other associated facts.

The Apex Court has also negated the view taken by the High Court as regards non-response by the accused to the notice of demand sent by the complainant prior to the lodging of the complaint as a circumstance in favour of the case of the complainant as to the legal liability of the accused.

11. In case of Krishna Janardhan Bhat v. Dattatraya G. Hegde; 2008 (1) Apex Court Judgments 412 (SC), the same principles of law have been reiterated with more elaboration. It has been said as under:-

"34. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should beheld to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."

12. In case of M/s Kumar Exports (supra) cited by the learned counsel for the opposite party (complainant), the very same principles having been restated as under:-

"11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the on-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in section 114 of the Evidence Act to rebut the presumptions arising under sections 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter the presumptions under sections 118 and 139 of the Act will not again come to the complainant's rescue."

13. In case of "Rangappa v. Sri Mohan"; 2010(2) Apex Court Judgments 285 (SC) setting forth the principles, it has been highlighted that the standard of proof for rebuttal of presumption under section 139 of the Act is that preponderance of probabilities and if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforeceable debt or liability, the prosecution would fail and for the purpose, the accused can rely upon the materials submitted by the complainant in order to raise such defence.

14. The Hon'ble Apex Court in case of "Kamala S. v. Vidyadharan M.J. & another;" 2007 (2), Apex Court Judgments 096 (SC), has said that the burden of proof on accused is not as high as that of the prosecution and the standard of proof in discharge of the burden is preponderance of a probabilities for which inference can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon.

15. In case of Bir Singh (supra) cited by the learned counsel for the opposite party no. 1, the Apex Court reiterating the principles of law as settled in all those above referred cases in the facts and circumstances of said case, has further gone to say that 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 N.I. Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt and the cheque that might be post-dated does not absolve the drawer of a cheque of the penal consequences of section 138 of the N.I. Act. The Apex Court, on the facts and circumstances coming to conclude that the finding of the High Court that the case of the complainant is highly doubtful and as such not proved beyond reasonable doubt as patently erroneous, has set aside the order of acquittal and restored the order of conviction passed by the trial court which stood affirmed by the appellate court.

16. The Hon'ble Apex Court in case of Kishan Rao v. Shankargouda; 2018 (2) OLR (SC) 733, keeping in mind, the above settled position of law when has found that the issuance of cheque containing the signature of the accused to have been dishonoured for insufficient fund leading to the drawal of presumption available under section 139 of the Act further finding the same to have not been rebutted either on the evidence of the complainant or through other evidence let in by the accused has set aside the order of the High Court by which the order of conviction had been annulled in exercise of revisional jurisdiction.

17. In case of Sampelly Satyanarayana Rao v. Indian Renewable Energy 2016 (2) OLR (SC) 1085, the answer has been that the dishonor of a post-dated cheque given for repayment of loan installments which is also described as "security" in the loan agreement is covered under section 138 of the N.I. Act being so issued for discharge of existing liability. Next question whether post-dated cheque issued by way of advance payment for the purchase order would be considered for discharge of legally enforceable debt has been answered. In that given case, the cheque being issued by way of advance payment for the purchase order was cancelled for which the payment of the money under the cheque was stopped. In that situation, it has been held that the purchaser may be liable for breach of contract, when a contract provides that the purchaser has to pay in advance and cheque towards advance payment being dishonoured, it would not give rise to the criminal liability under section 138 of the N.I. Act and therefore issuance of cheque towards advance payment would not be considered as discharge of any subsisting liability which depends on the nature of the transaction as to if on the date of the cheque liability or debt exists or the amount stands as legally recoverable.

It has further been held that the accused in order to rebut the presumption under section 139 of the N.I. Act even without adducing evidence of his own can rely upon the material submitted by the complainant but mere statement of the accused is not enough to rebut the said presumption.

18. In case of Rohitbhai Jivanlal Patel (supra), cited from both sides, the Apex Court having found all the basic ingredients of section 138, 118 and 139 of the N.I. Act to be apparent on the face of record has arrived at a conclusion that the cheques had been drawn for consideration and that the complainant received those towards discharge of an existing debt by the accused. Then having found that the accused has failed to rebut the said facts, has finally held the accused guilty of commission of offence under section 138 of the N.I. Act.

The same principles have been reiterated in case of Shree Daneshwari Traders (supra) and Bir Singh (supra). That had earlier been expressed in case of Kumar Experts (supra) and has again been reiterated in case of Uttam Ram (supra)

19. Reverting to the facts as obtained in this case, at the risk of repeatation; it may be stated that the case projected by the complainant is that the accused being in friendly terms with him requested him to give Rs.5.50 lakh as hand loan so as to meet his liability incurred towards construction of his house , children's education and for other sundry loans. It is the further case of the complainant that on 18.3.2014, he paid a sum of Rs. 5.50 lakh to the accused as friendly loan and it was agreed upon that the said amount would be returned within a period of nine months. On that very day, it is said that the accused executed an agreement Ext. 11. It is further stated that after expiry of the said period of nine months in order to discharge the debt and liability towards the said friendly loan, the accused had issued the cheque Ext. 1 for a sum of Rs.5.50 lakh which being dishonoured and having remained unpaid forms the subject matter of the present case.

The case of the accused is that he had incurred loan of Rs.30,000/- and had given a blank cheque under his signature and the complainant had taken some signed blank stamp papers from him which have been mis-utilized.

It has been narrated in the complaint petition that this agreement dated 18.3.2014 had been created to provide strong belief in the mind of the complainant that the amount given as friendly loan would be so returned on time. During cross-examination, the complainant i.e. P.W. 1 at paragraph-11 has stated to have handed over the money to the accused in front of the office of the Notary at Jaleswar in presence of Sanyasi Giri examined as P.W. 2 and Sangram Dey who has not come to the witness box. P.W. 1 has further stated to have given 500 numbers of currency notes of the denomination of Rs.1000/-, and 37 pieces of currency notes of the denomination of 500/-. This being accepted the amount so paid by the complainant to the accused comes to Rs.5,18,500/-. In the absence of any other explanation, thus the payment of the total amount comes within the zone of doubt. He has further stated that it is the accused who had filled up the cheque in all respect. The defence case from the beginning is that he had taken a sum of Rs. 30,000/- from the complainant and as desired by the complainant, he had given a signed blank cheque and signed blank stamp papers. The accused in his defence has stated to have taken the said sum to meet expenses towards the treatment of his ailing father. He denies to have ever issued a cheque of Rs.5.50 lakh towards discharge of his liability to that extent which he says to have never owed. D.W. 2 has also stated about receipt of Rs.30,000/- by the accused from the complainant. It is the evidence of D.W.1 that being asked by the complainant, he had signed on blank stamp papers. This he refers to be in connection of the loan and payment of Rs.30,000/-. He has denied to have received Rs.5.50 lakh from the complainant. At this stage, the evidence of P.W. 2 being given a look, it is seen that he has expressed his ignorance as to the contents of the agreement (Ext.11). Although, he claims to be a witness to the said agreement, his evidence is that the accused has not given anything at the time of execution of agreement. He has stated that the transaction has been made in his presence. It is not explained by him or even by P.W. 1 as to whether after payment of money, said agreement come into being or after execution of the agreement (Ext.11) came into existence, the money had been paid. The contents of the agreement go to show that the accused had undertaken even at that time that if for some reason or other, he fails to pay the loan amount of Rs.5.50 lakhs, the complainant would be given a cheque drawn on his account with Oriental Bank and withdrawn the money. It is not understood as to how at that time, it was decided that on failure to pay, the accused would give the cheque drawn on his account. It sounds absurd firstly for the reason that if the accused was having money in his account then why and what for the loan was asked for and taken; secondly, if the amount would be available in the account after nine month, instead of withdrawing the money and paying to the complainant, why cheque would be issued in favour of the complainant. These facts lead to doubt the very issuance of the cheque after expiry of nine month from the date of loan and the delivery of blank signed cheque as per the version of the complainant stands as a probability.

Next, P.W. 1 when has proved this agreement as Ext. 11; P.W. 2 has however for the reasons best known, not proved even his signature on the said agreement Ext. 11. Although, he states that he and one Sangram Dey are the witnesses to the said agreement, he is unable to say even give the address of the witness namely, Sangram Dey. Both will be standing as witnesses to a document and one will not be knowing the other creates genuine doubt that they were present together. It is again surprising to note that this witness has stated to have no knowledge about the nature of case. The agreement, Ext.11 does not find mention as to who has scribed the same. To the naked eye, it appears that the signature of P.W. 2 as it is in his deposition has the variance with his purported signature appearing in Ext. 11. At this juncture, it is seen that this witness is stating that the complainant had given 500 pieces of currency notes of the denomination of 1000, 37 numbers of currency notes of the denomination of 500 and 315 numbers of currency notes of 100 denomination which comes to Rs.5.50 lakh. When P.W. 1 states to have paid a sum of Rs.5,18,500/-; for this witness to exactly remember the numbers of currency notes with reference to their denominations as to have been given by the complainant to the accused is not at all believable and that rather places P.W.2 in the position of a wholly got up witness in coming even to make good the important deficiency occurring in the evidence of P.W.1. This witness examined a month after examination of P.W. 1 has gone to say about the payment of 315 numbers of currency notes of 100 denomination which is not the evidence of P.W.1 who is the person who claims to have paid the money.

The accused however having admitted to have issued a cheque, the presumption stands drawn that the cheque was issued in discharge of debt or liability. The question stands as to whether any probable defence has been raised that it was not in discharge the debt and liability to the tune of Rs.5.50 lakh. P.W. 1 being put with the question has gone to flatly deny the same but the evidence as discussed above, clearly create doubt in the mind as to the payment of such huge amount of cash that to in a public place by the complainant to the accused and in presence of P.W. 2. The notary has not been brought to the witness box to say that this accused being personally present before him has admitted the contents of Ext. 11 to have been correctly written under his instruction. The person who has identified the complainant as well as the accused and their respective signatures has not been made to stand as a witness. Interesting to note that although it is said to be a friendly loan, at every stage, emphasis has been given on that fact there is no charge of interest which appears to have been made at the behest of the complainant as an extreme precau

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tionary measure and guard against carrying out money lending. The very nature of loan under the circumstance comes under scanner that it might not be without interest and that rather probalises the theory of delivery of blank signed cheque and stamp papers. It has been stated by P.W. 1 that when after nine months on 12.1.2018, he requested the accused to pay back the loan, the accused being not able to immediately clear up, handed over the cheque. It is stated by P.W. 2 that on the very day the complainant, P.W. 1 had taken him to the house accused to collect the money and he instead of making payment, handed over a cheque. Surprisingly enough paragraph-9 of the agreement Ext. 11 which has been relied upon by the complainant run on the score that in case of non-payment of the amount within the time, the accused had agreed to issue a cheque drawn on his account in the Oriental Bank, Jaleswar towards payment of the said loan. A question then arises as to how it was so assumed then that the accused would fail to pay and thus the future course was so decided and if that is so whether the cheque would be issued notwithstanding the bank balance. This raises further doubt the payment being made by the complainant why the issuance of cheque stood deferred till expiry of period of nine months. In such state of affair in evidence, in my considered view the complainant has the burden to establish his financial capacity. That having not at all been done, it has to be said that the complainant has failed to proved that the sum of Rs.5.50 lakh was the existing debt to be cleared by the accused as on the date of issuance of cheque. Such evidence being considered in proper perspective, the accused is found to have been successful in raising a probable defence in discharging the burden resting on his shoulder, shifting it to the complainant which on the face of the evidence is not seen to have been successfully proved the debt and liability to the tune of Rs.5.50 lakh standing to be cleared by the accused. 20. On going through the judgments of the courts below, it is seen that all the above important facts emanating from evidence, have not all been dealt and to me, it appears that the courts below have remained under an erroneous impression that the presumption has to be rebutted by the accused only by leading evidence from his side. The view taken that the accused having not responding in that light, right from the time of demand for payment made by the complainant till lodging of the complaint stands as a circumstance against his case favouring the case of the complainant appears to be a patent error. Therefore, in my considered view, the finding returned by the courts below based on which the conviction has been recorded against the accused suffers from the vice of perversity, particularly, for non-consideration of the evidence on record as pointed out above which pushes the existence of the debt or subsistence of liability owning to the complainant to the tune of Rs.5.50 lakh and standing to be discharged by the accused into thick clouds of doubt. The courts below are thus found to have committed manifest error by going to hold the accused guilty for commission of offence under section 138 of the N.I. Act in convicting him thereunder followed by imposition of sentence and award of compensation as aforestated. 21. Resultantly, the judgments recording conviction against the accused for commission of offence under section 138 of the N.I. Act as well as the consequential order of sentence as also the direction for payment of compensation are hereby set aside. 22. Accordingly, the revision stands allowed. Revision Petition Allowed.
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