Crl.A. No.1418 of 1997

12th October, 2004

Petitioner Counsel: M. V. KRISHNA KUMAR
Respondent Counsel: G. DASARATHARAMI REDDY

Cases Cited:
Shyam Deo Vs. State of Bihar, AIR 1971 SC 1606 [Para PARA3]
Khaili Vs. State of U.P., 1982 SCC (Cri) 143 [Para PARA3]
Maruti Udyog Ltd. Vs. Narender, (1999)1 SCC 113 [Para PARA5]
M.M.T.C. Vs. Medchl Chemicals and Pharma, 2002 ALL MR (Cri) 230 (S.C.)=2002(1) SCC 234 [Para 5]
K. N. Beena Vs. Muniyappan, 2002(1) ALL MR 277 (S.C.)=2001(8) SCC 458 [Para 5]
Anil Hada Vs. Indian Acrylic Ltd, 2000 ALL MR (Cri) 136 (S.C.)=1999(7) Scale 209 [Para 5]

JUDGMENT

-Alleging that the cheque dated 15-3-1994 for Rs.50,000/- drawn by the first respondent, in his favour, on Arkonam Co-operative Urban Bank Limited, Arkonam, towards part payment of the price payable by him for the chowke trees sold to the first respondent was returned with an endorsement of 'insufficient funds' and that he (first respondent) evaded to receive the statutory notice sent to him under Section 138 of the Negotiable Instruments Act, 1881 (the Act), after knowing the contents therein and failed to pay the amount covered by the dishonoured cheque, appellant filed a private complaint under Section 138 of the Act against the first respondent and examined himself as P.W.1 and marked Exs.P.1 to P.9 on his behalf. First respondent who denied the offence did not examine any witness on his behalf.

2. Negativing the contention of the first respondent that there is no proper service of the statutory notice on him, on the basis that appellant failed to establish that the dishonoured cheque was issued towards part payment of a legally enforceable debt, the learned Magistrate, acquitted the first respondent. Hence, this appeal by the complainant.

3. Though the case is being listed for hearing, neither the learned Counsel for the appellant nor the learned Counsel for the first respondent is present. Since an appeal admitted for hearing cannot be dismissed for default, and has to be disposed of on merits as held in Shyam Deo Vs. State of Bihar, AIR 1971 SC 1606 and Khaili Vs. State of U.P., 1982 SCC (Cri) 143, I am considering the appeal on merits.

4. Since the finding of the learned Magistrate is that there is valid service of the statutory notice as contemplated by Section 138 of the Act on the first respondent, the only point for consideration is whether the dishonoured cheque was issued by the first respondent towards a legally enforceable debt or liability due to the appellant or not.

5. A reading of the judgment under appeal shows that the learned Magistrate placed the burden of proof to establish that the dishonoured cheque was issued towards discharge of a legally enforceable debt on the appellant, obviously without taking notice of Section 139 of the Act, which reads:

"Presumption infavour of holder . - It shall be presumed, 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."

'Shall presume' as per Section 4 of Evidence Act means that the Court has to presume the fact as proved till it is disproved by the opposite party. The Apex Court had occasions to consider the effect of Section 139 of the Act in a number of decisions.

In Maruti Udyog Ltd. Vs. Narender, (1999)1 SCC 113, it is held:

"In view of the express provision of Section 139 of the Negotiable Instruments Act, 1881, a presumption must be drawn that the holder of the cheque received the cheque, of the nature referred to in Section 138, for the discharge of any debt or other liability unless the contrary is proved. Therefore, the High Court was not justified in entertaining and accepting the plea of the accused-respondent at the initial stage of the proceedings and quashing the complaints filed by the appellant."

In M.M.T.C. Vs. Medchl Chemicals and Pharma, 2002 (1) SCC 234 : [2002 ALL MR (Cri) 230 (S.C.)], it is held at Page 240 as follows:

"There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the Trial" (underlining mine)

In K. N. Beena Vs. Muniyappan, 2001 (8) SCC 458 : [2002(1) ALL MR 277 (S.C.)], it is held:

"Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable."

In Anil Hada Vs. Indian Acrylic Limited, 1999(7) Scale 209 : [2000 ALL MR (Cri) 136 (S.C.)], at Para-15 at Page 214 it is held:

"The aforesaid presumption is in favour of the holder of the cheque. It is not mentioned in the section that the said presumption would operate only against the drawer. After all a presumption is only for casting the burden of proof as to who should adduce evidence in a case. It is open to any one of the accused to adduce evidence to rebut the said presumption. In a prosecution where both the drawer company and its office bearers are arrayed as accused, and if the drawer company does not choose to adduce any rebuttal evidence it is open to the other office bearers-accused to adduce such rebuttal evidence. If that be so, even in a case where the drawer company is not made an accused but the office bearers of the company alone are made the accused such office bearers-accused are well within their rights to adduce rebuttal evidence to establish that the company did not issue the cheque towards any antecedent liability.".

6. In view of the above, it is clear that the burden to establish that the dishonoured cheque was not issued towards any legally enforceable debt or liability is on the first respondent, who is the drawer of the dishonoured cheque, but not on the appellant, who is the payee. For reasons best known to him first respondent did not choose to adduce any evidence to rebut the presumption under Section 139 of the Act in favour of the appellant. So, it has to be taken that the dishonoured cheque was issued by the first respondent towards a legally enforceable debt or liability to the appellant and, so, it cannot but be said that the appellant established the guilt of the first respondent for an offence under Section 138 of the Act beyond all reasonable doubt.

7. In view thereof acquittal of the first respondent by the Trial Court cannot but be said to be perverse and in ignorance of the statutory presumption. So, the appeal has to be allowed.

8. Therefore, the appeal is allowed. First respondent is convicted for an offence under Section 138 of the Act and is sentenced to suffer rigorous imprisonment for a period of four months and a fine of Rs.50,000/- (Rupees fifty thousand only) out of which Rs.48,000/- (Rupees forty eight thousand only) shall be paid to the appellant as compensation.

Appeal allowed.