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Triyambak S.Hegde vs. Sripad - (Supreme Court) (23 Sep 2021)

If signature on cheque is admitted, presumption under Section 139 of NI Act that cheque was issued in discharge of a legally enforceable debt will be raised

MANU/SC/0690/2021

Banking

The Appellant is before present Court assailing the common order passed by the High Court. Through the said order, the learned Single Judge has allowed Petition filed by the Respondent herein. Consequently, the conviction of the Respondent, ordered by the learned Judicial Magistrate and affirmed by the learned Session Judge is set aside.

The record would disclose that, the signature on the documents at Exhibits P¬6 and P¬2 is not disputed. Exhibit P¬2 is the dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the Respondent has not disputed the signature on the cheque. If that be the position, as noted by the Courts below, a presumption would arise under Section 139 of Negotiable Instruments Act, 1881 (NI Act) in favour of the Appellant who was the holder of the cheque. Section 139 of the NI Act provides that, 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.

The case put forth by the Respondent does not satisfy the requirement of rebuttal even if tested on the touchstone of preponderance of probability. Therefore, in the present facts, it cannot be held that the presumption which had arisen in favour of the Appellant had been successfully rebutted by the respondent herein. The High Court therefore was not justified in its conclusion.

As observed by this Court in Kaushalya Devi Massand vs. Roopkishore Khore, the gravity of complaint under NI Act cannot be equated with an offence under the provisions of the Indian Penal Code, 1860 or other criminal offences. In that view, in the facts and circumstances of the instant case, if an enhanced fine is imposed, it would meet the ends of justice.

The order passed by the High Court in Criminal Revision Petition is set aside. The conviction is restored. The sentence to undergo simple imprisonment for six months and fine of Rs.2,00,000 is however modified. The Respondent/Accused is instead sentenced to pay the fine of Rs. 2,50,000 within three months. In default of payment of fine the Respondent/Accused shall undergo simple imprisonment for six months. Appeals are accordingly allowed in part.

Tags : CONVICTION   DELETION   VALIDITY  

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