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Sumeti Vij vs M/S Paramount Tech Fab Industries - (Supreme Court) (09 Mar 2021)

Statement of the accused recorded under Section 313 of CrPC is not a substantive evidence of defence to rebut the presumption under Section 139 of the NI Act

MANU/SC/0167/2021

Criminal

The Appellant is aggrieved by the judgment passed by the High Court holding the Appellant guilty of offence 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.

The Appellant submitted that, 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, against which the cheques were received as security and even though the Appellant has not placed any evidence to disprove or rebut the presumption in defence, still the complainant has to discharge its burden and has to stand on his own legs. In the absence of the prima¬facie burden being discharged by the complainant, 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.

In the instant case, the Appellant has only recorded her statement under Section 313 of the CrPC, and has not adduced any evidence to rebut the presumption that the cheques were issued for consideration. Once the facts came on record remained unrebutted and supported with the evidence on record with no substantive evidence of defence of the Appellant to explain the incriminating circumstances appearing in the complaint against her, no error has been committed by the High Court in the impugned judgment, and the Appellant has been rightly convicted for the offence punishable under Section 138 of the Act and needs no interference of this Court.

There is a mandate of presumption of consideration in terms of the provisions of the Act and the onus shifts to the accused on proof of issuance of cheque to rebut the presumption that, the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the NI Act.

In the case at hand, the complainant was able to prove that the Appellant placed the order for purchasing non¬-woven fabric which was sold vide invoice which was delivered through public carrier truck and in lieu thereof, the cheques in favour of the complainant were issued by Appellant in order to discharge her liability. On the cheques being presented for encashment to the State Bank of India, the same were dishonoured on the ground of “insufficient funds” in the account of the Appellant.

Thereafter, two separate legal notices were served by the complainant which were duly received by the Appellant and even after receiving the said notices, the Appellant neither responded to the notices nor made any payment within the statutory period of fifteen days and only thereafter, two separate complaints were filed by the complainant under Section 138 of the NI Act against the Appellant-¬accused.

There was no response by the Appellant at any stage either when the cheques were issued, or after the presentation to its banker, or when the same were dishonoured, or after the legal notices were served informing the Appellant that both the cheques on being presented to its banker were returned with a note that it could not be honoured because of “insufficient funds”.

When the complainant exhibited all documents in support of his complaints and recorded the statement of three witnesses in support thereof, the Appellant has recorded her statement under Section 313 of the CrPC, but failed to record evidence to disprove or rebut the presumption in support of her defence available under Section 139 of the NI Act. The statement of the accused recorded under Section 313 of the CrPC is not a substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration.

In the given circumstances, the High Court has not committed any error in recording the finding of guilt of the Appellant and convicting her for an offence being committed under Section 138 of the NI Act under its impugned judgment, which needs no further interference. Appeals dismissed.

Tags : CHEQUE BOUNCE   CONVICTION   LEGALITY  

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