The onus shifts to the accused rebut the presumption on proof of issuance of the cheque: SC

The object of introducing Section 138 and other provisions of Chapter XVII in the Act appears to be to enhance the acceptability of cheques in the settlement of liabilities. The drawer of the cheque is held liable to prosecution on dishonor of cheque with safeguards provided to prevent harassment of honest drawers. (Para 13)

Sumeti Vij V/s M/S Paramount Tech Fab Industries

Criminal Appeal No(S). 292 of 2021 (Arising Out of SLP(Crl.) No(S).8498 of 2019)

Decided on 09th March 2021

A Two-Judge Bench of the Hon’ble Supreme Court consisting of Justice Indu Malhotra and Justice Ajay Rastogi dismissed the appeal to impugn the judgment laid by the High Court of Himachal Pradesh wherein it reversed the acquittal of the Appellant earlier pronounced by the Trial Court.

The appellant is aggrieved by the judgment dated 30th April 2019 passed by the High Court of Himachal Pradesh holding the appellant guilty of an offense under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) after reversal of the finding of acquittal returned by the learned trial Judge by its judgment dated 28th September 2012.

The appellant placed the order to the complainant for purchasing non­woven fabric which was sold vide invoice No. 120 dated 01st October 2010 and invoice No. 135 dated 16th October 2010 amounting to Rs.5,07,062/­ and Rs.5,10,000/­ which was delivered through public carrier truck bearing Nos. HR­38G­5607 and HP­71­0693 and in lieu thereof, the cheques bearing No.323930 dated 15th October 2010 and No.323935 dated 01st November 2010 in favorof the complainant were issued by the appellant to discharge her liability. On the cheques being presented for encashment to the State Bank of India, Branch Kala Amb, the same was dishonored on the ground of “insufficient funds” in the account of the appellant and the same were returned vide memo dated 19th October and 10th November 2010 by Punjab National Bank, Karnal. Two legal notices dated 29th October 2010 and 19th November 2010 were sent by the complainant to the appellant on two addresses. The notices were duly served but the appellant neither responded to the notices nor made any payment in furtherance thereto within the statutory period.

The learned trial Judge returned a finding that the complainant failed to establish that the material/goods were delivered to the appellant in lieu of which, the cheques were issued, and accordingly, the trial court returned the finding of acquittal of the appellant.

Learned counsel for the Appellant submitted that (i) The complainant was not able to prove that the material/goods were ever sent or received by the appellant and in terms of the complaint, the burden was on the complainant to prove that the material/goods were received by the appellant, the mere issuance of the cheques by the appellant would not have been sufficient to justify that the cheques were issued in discharge of any debt or other liability. (ii) The High Court was not justified in reversing and setting aside the finding of acquittal recorded by the trial court merely on the ground that the view expressed by the High Court is more plausible with what being expressed by the trial court.

Learned counsel for the complainant/­respondent while supporting the finding recorded by the High Court in the impugned judgment submitted that (i) There was sufficient material available on record to justify that these cheques were issued with reference to the invoices after delivery of goods, which were duly exhibited, and cheques were issued in lieu thereof. (ii) The cheques issued by the appellant, on due presentation to the bank got dishonored on the ground of “insufficient funds”. The statutory notice was issued to the appellant, who failed to respond. (iii) To support the evidence of the complainant three witnesses were examined, and were able to establish and discharge the burden of proof. It was for the appellant to come forward with her defense and prove to the contrary as envisaged under Section 139 of the Act.

It was observed that “When the matter was earlier heard on 01st March 2021, we directed the learned counsel for the appellant to seek instructions whether his client is ready to make payment of the stated cheque amount in both the criminal appeals i.e. Rs.5,07,062/­ and Rs.5,10,000/­ and posted the matter for further hearing on 05th March 2021. Learned counsel for the appellant on instructions, informed that his client is not willing to discharge the stated amount, and wants to argue the case on merits. After hearing the counsel for both the parties, we reserved the order on 05th March 2021 and still afforded an opportunity that by 06th March 2021 evening, the appellant can still reconsider her instructions as noticed by us in the order of 01st March 2021. It has been informed to us that the appellant is interested to get the outcome of the present appeals on merits.” (Para 23)

This court hence concluded that

“In the given circumstances, the High Court, in our view, has not committed any error in recording the finding of guilt of the appellant and convicting her for an offense being committed under Section 138 of the Act under its impugned judgment, which in our considered view, needs no further interference. Consequently, the appeals are without any substance, and are accordingly dismissed.” (Para 24)

The appeal stood dismissed.

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Risikesh Dhanaki