Rajendra Babu V. Vrindavan v. Sree Gokulam Chits & Finance Co. Pvt. Ltd. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945** ## **CRL.REV.PET NO. 1624 OF 2011** **AGAINST THE ORDER/JUDGMENT CRA 747/2007 OF I ADDITIONAL DISTRICT** ## **COURT, THIRUVANANTHAPURAM** ## **ST 1705/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV, NEDUMANGAD REVISION PETITIONER/S:** RAJENDRA BABU.V. VRINDAVAN, ALAMCODE, ATTINGAL,, THIRUVANANTHAPURAM. BY ADV SRI.PIRAPPANCODE V.S.SUDHIR ## **RESPONDENT/S:** 1 M/S. SREE GOKUALAM CHITS & FINANCE CO. PVT. LTD., REPRESENTED BY ITS MANAGING, DIRECTOR A.M.GOPALAN. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE, GENERAL, ERNAKULAM. BY ADV SMT.C.V.RAJALAKSHMI ## **OTHER PRESENT:** SR PP SMT PUSHPALATHA M K THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 CRL.REV.PET NO. 1624 OF 2011 ## **ORDER** The revision petition is filed questioning the propriety and correctness of the judgment passed by the Court of the Additional Sessions Judge-I, Thiruvananthapuram (Appellate Court) in Criminal Appeal No.747/2007 which confirmed the judgment of the Court of the Judicial First Class Magistrate-IV, Nedumangad (Trial Court) in S.T.No.1705/2005 holding the revision petitioner guilty for the offence under Section 138 of the Negotiable Instruments Act (in short, “Act”). The revision petitioner was the accused and the 1[st] respondent was the complainant before the Trial Court. The parties are, for the sake of convenience, referred to as per their status in the revision petition. 2. The relevant antecedent facts for the determination of the revision petition are as follows: - (i) The 1[st] respondent is a private limited company having branches across the country, including one at In of an Nedumangad. discharge existing 3 CRL.REV.PET NO. 1624 OF 2011 - liability, the revision petitioner had executed and issued Ext.P1 cheque for Rs.1,19,083/- dated 20.01.2005. The cheque on presentation for encashment got returned due to “insufficient funds” in the account of the revision petitioner. Although Ext.P4 lawyer notice was issued to the revision petitioner, he did not pay the demanded amount. Hence, the revision petitioner committed offence under Section 138 of the N.I.Act. - (ii) The 1[st] respondent filed the complaint, which was taken cognizance of by the Trial Court. The revision petitioner entered appearance and got himself enlarged on bail. After the completion of the statutory procedural formalities contemplated under the Code of Criminal Procedure (in short “Cr.P.C.”), the complaint was posted for trial. - (iii) The power of attorney holder of the 1[st] respondent was examined as PW1 and the Manager of the Attingal Branch of the 1[st] respondent was 4 CRL.REV.PET NO. 1624 OF 2011 examined as PW2. Exts.P1 to P8 were marked through them in evidence. The revision petitioner was examined as DW1 and Exts.D1 and D2 were marked through him. The statement of the revision petitioner was recorded under Section 313 of the Cr.P.C. - (iv) The Trial Court, after analysing the evidence and materials on record, by its judgment dated 18.08.2007 convicted the revision petitioner for the offence under Section 138 of the N.I.Act and sentenced him to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.1,19,083/- to the 1[st] respondent and in default to undergo simple imprisonment for a further period of two months. - (v) Aggrieved by the said judgment, the revision petitioner filed Crl.Appeal No.747/2007 before the Appellate Court. The Appellate Court, after reappreciating the materials on record, by the 5 CRL.REV.PET NO. 1624 OF 2011 impugned judgment, confirmed the conviction and modified the substantive sentence to simple imprisonment till the rising of the court and to pay the compensation of Rs.1,19,083/- and in default, to undergo simple imprisonment for a further period of 12 days. - (vi) It is challenging the concurrent judgments passed by the courts below, the present revision petition is filed. 3. Heard; Sri. Pirappancode V.S.Sudheer, the learned counsel appearing for the revision petitioner, Smt. C.V. Rajalakshmi, the learned counsel appearing for the 1[st] respondent and the learned Public Prosecutor, appearing for the 2[nd] respondent. 4. Sri. V.S. Sudheer, strenuously argued that both courts have gone wrong in convicting the revision petitioner for an offence under Section 138 of the N.I. Act. His cardinal contentions were: (i) Ext.P4 lawyer notice and the complaint filed by 6 CRL.REV.PET NO. 1624 OF 2011 the 1[st] respondent does not give specific details of the transaction, which renders the entire prosecution bad. - (ii) PW1 has specifically stated that he is unaware of the transaction, which goes against the law laid down by the Honourable Supreme Court in **Narayan A.C. and another v. State of Maharashtra and others** [2013 (4) KLT 21 (SC)], wherein it is held that the power of attorney holder must have witnessed the transaction. - (iii) PW2 has unambiguously testified that the revision petitioner has paid the entire amount due to the 1[st] respondent, which stands corroborated by Ext.P7 ledger extract and Ext.D1 pass book. Therefore, as on the date of Ext.P1 cheque, there is no legally enforcible debt. He also relied on the judgment of the Honourable Supreme Court in **Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel and another** [(2023) 1 7 CRL.REV.PET NO. 1624 OF 2011 SCC 578], to bolster his contention that even if a part payment is due from the revision petitioner to the 1[st] respondent, an endorsement under Section 56 of the N.I. Act was necessary. This was also not done by the 1[st] respondent. Hence, the complaint ought to have been dismissed by the courts below. He prayed that the revision petition may be allowed. 5. Sri.Reghunath, representing Smt.C.V. Rajalakshmi, vehemently countered the above submissions. He placed reliance on the Division Bench decision of this Court in **Basheer K. vs C.K. Usman Koya and others** [2021 (2) KHC 432], to canvass the position that there is no requirement for a complainant to disclose the complete details of the transaction. Instead only the allegations constituting the ingredients of an offence under Section 138 of the N.I. Act is to be pleaded. He also drew the attention of this Court to Ext.D1 pass book, which is the trump card of the 8 CRL.REV.PET NO. 1624 OF 2011 revision petitioner to advance the plea of discharge of entire liability, wherein pages 2 to 6 are conspicuously missing. According to him, the Trial Court ought not to have permitted a truncated document to be marked in evidence. He drew the attention of this Court to Ext.P8 sample pass book to demonstrate that pages 2 to 7 of the passbook gives the complete transaction details. He argued that the revision petitioner deliberately tore away the pages of Ext.D1 passbook to suppress the actual transaction. He also drew the attention of this Court to Ext.D2 notice, which was produced by the revision petitioner and his oral testimony, which reveals that the revision petitioner was a subscriber to two chitties conducted by the 1[st] respondent- company. DW1 has in unequivocal terms testified that he had bid two chitties having a total sala of Rs.2,00,000/- for an amount of Rs.1,50,000/- and was paid the said amount by two cheques for Rs.75,000/- each. It is subsequent to the issuance of Ext.D2 notice dated 22.07.2004, that 9 CRL.REV.PET NO. 1624 OF 2011 the revision petitioner has consciously issued Ext.P1 cheque on 20.01.2005 towards a legally enforcible debt. He, further, argued that the revision petitioner has not discharged the reverse onus of proof under Section 139 of the Act. Hence, he prayed that the revision petition may be dismissed. 6. Before I delve into the legality and correctness of the impugned judgments, this Court reminds itself of the nature of its revisional jurisdiction under Secs.397 to 401 of the Cr.P.C. 7. It is well settled in a host of judicial pronouncements that the revisional power of this Court is to be sparingly exercised and is in the nature of a supervisory jurisdiction to correct the miscarriage of justice, if any found. The revisional power cannot be equated with Appellate/Second Appellate power. Even if a different view is possible, the revisional Court shall not substitute the view taken by the Trial/Appellate Court, unless and until there is patent illegality, which 10 CRL.REV.PET NO. 1624 OF 2011 is shocking to the conscience of the Court. 8. In **Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke & Anr** [(2015) 3 SCC 123], the Hon’ble Supreme Court has succinctly laid down the scope and powers under Secs.397 to 401 of the Cr.P.C. It is apposite to extract the revisional declaration of law, which reads as follows: “14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.” ## 9. Coming back to the facts of the instant case. 11 CRL.REV.PET NO. 1624 OF 2011 10. The two pivotal grounds of attack in the revision petition are:- - (i) The lawyer notice as well as the complaint does not give the details of the transaction. - (ii) Ext.P1 cheque has not been issued towards the legally enforcible debt. ## **Point No.1** 11. There was a cleavage of opinion on the point as to whether the entire details of the transaction leading to the issuance of the cheque have to be pleaded in the notice and complaint. 12. The above legal position is no longer res integra in view of the emphatic declaration of law by the Division Bench of this Court in **Basheer K** (supra), wherein, it has been held that as there is no particular form prescribed under the N.I.Act with respect to the notice to be issued under Section 138, except that the payee or the holder in due course should make a demand for payment of the money within 30 days from 12 CRL.REV.PET NO. 1624 OF 2011 the receipt of intimation regarding the dishonour of cheque and the courts cannot legislate by prescribing a particular form, especially when the statute provides a presumption in favour of the holder. All that is required in a prosecution under Section 138 of N.I.Act is that the complaint filed under Section 138 of the N.I. Act should contain the five ingredients, namely, (a) the cheque is drawn in a valid account by a holder (b) its presentation within six months from the valid period (c) dishonour of the cheque (d) demand by the payee or the holder in due course (e) the demand is made within 30 days from the date of dishonor. If the said ingredients are pleaded, the same would suffice. Consequently, the Division Bench held that the earlier view of the learned Single Judge of this Court in **Divakaran v. State of Kerala** [2016 (4) KHC 901] is no longer good law. In view of the said exposition of law, I hold that point No.1 canvassed by the learned counsel for the revision petitioner is untenable. 13 CRL.REV.PET NO. 1624 OF 2011 ## **Point No.2** 13. The learned counsel appearing for the revision petitioner drew the attention of this Court to Ext.P7 ledger extract and Ext.D1 pass book issued by the 1[st] respondent. He vehemently contended that as per Ext.P7 and Ext.D1 pass book, no amount is payable by the revision petitioner to the 1[st] respondent which is admitted by PW2. 14. Even as per Ext.D1 passbook, the closing balance is Rs.97,300/-. The 1[st] respondent making use of a blank security cheque has claimed Rs.1,19,083/and launched the prosecution, which is unsustainable in view of the law laid down in **Dashrathbhai Trikambhai Patel** (supra). 15. It may be true that PW1 – the power of attorney holder of the 1[st] respondent has admitted that he was unaware of the transaction. However, PW2 – the Branch Manager of the 1[st] respondent – through whom Ext.P7 ledger extract was marked had deposed that the 14 CRL.REV.PET NO. 1624 OF 2011 revision petitioner had remitted an amount of Rs.1,02,700/-. It is the oral testimony of DW1 – the revision petitioner –, which clearly explains the transaction. He has in unambiguous terms testified that he was the subscriber to two chitties for an amount of Rs.1,00,000/- each. He has admitted that he bid the chitty for Rs.1,50,000/-, and he has not disputed the execution of Ext.P1 cheque. It is his defence that only an amount of Rs.97,300/- is due from him. Therefore, the 1[st] respondent could not realise an amount of Rs.1,19,083/- as per Ext P1 cheque. Instead, the 1[st] respondent ought to have got Ext.P1 endorsed as contemplated under Section 56 of the N.I.Act and launched the prosecution for only Rs.97,300/-. 16. Ext.P7 – ledger extract shows that the revision petitioner had remitted Rs.86,700/- and Rs.1,02,700/on 16.11.2004 which is countersigned by the Manager of the 1[st] respondent on 31.12.2004. It is the same figure that is reflected in Ext.D2 passbook. But, the 15 CRL.REV.PET NO. 1624 OF 2011 fact remains that, it is subsequent to the said date that the revision petitioner issued Ext.P1 cheque dated 20.01.2005. 17. The 1[st] respondent, subsequent to the dishonour of the cheque, by Ext.P2 memorandum, issued Ext.P4 lawyer notice, which was neither replied to by the revision petitioner nor the amount was paid. After the completion of the statutory time period, the 1[st] respondent launched prosecution under Section 138 of the N.I. Act. Thus, the 1[st] respondent had discharged the initial onus of proof as provided under Section 139 of the N.I. Act. 18. A negotiable instrument, which includes a cheque carries the presumption of consideration under Secs.118(a) and 139 of the N.I Act. It is profitable to extract the said relevant provisions: “118. Presumptions as to negotiable instruments – Until the contrary is proved, the following presumptions shall be made;- (a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, 16 CRL.REV.PET NO. 1624 OF 2011 indorsed, negotiated or transferred for consideration; 139. Presumption in favour 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”. ## 19. In **Kumar Exports vs Sharma Carpets** [2009 ## (1) KLT 197 (SC)], the Hon’ble Supreme Court analysed the above provisions and held thus: “9. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the appellant, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. In a suit to enforce a simple contract, the plaintiff has to aver in his pleading that it was made for good consideration and must substantiate it by evidence. But to this rule, the negotiable instruments are an exception. In a significant departure from the general rule applicable to contracts, Section 118 of the Act provides certain presumptions to be raised. This Section lays down some special rules of evidence relating to presumptions. The reason for these presumptions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of endorsements,(vi) as to appropriate stamp and (vii) as to holder being a holder in due course. Section 139 of the 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. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that 17 CRL.REV.PET NO. 1624 OF 2011 there is no evidence or insufficient evidence. Under the Indian Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) "may presume" (rebuttable), (2) "shall presume" (rebuttable) and (3) "conclusive presumptions" (irrebuttable). The term `presumption' is used to designate an inference, affirmative or disaffirmative of the existence a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means "taking as true without examination or proof". Section 4 of the Evidence Act inter-alia defines the words `may presume' and `shall presume as follows:- "(a) `may presume' - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it. (b) `shall presume' - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved." In the former case the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved. 10. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. Applying the definition of the word `proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by 18 CRL.REV.PET NO. 1624 OF 2011 the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 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 non-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- 19 CRL.REV.PET NO. 1624 OF 2011 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.” 20. A three-Judge Bench of the Hon’ble Supreme Court in **Rangappa vs. Sri.Mohan** [2010 KHC 4325], while dealing with Sec.139 of the N.I Act has conceptualised the doctrine of ‘reverse onus’, by holding thus: “18. In light of these extracts, we are in agreement with the respondent - claimant that the presumption mandated by S.139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that 20 CRL.REV.PET NO. 1624 OF 2011 case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused / defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his / her own. 15. Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the 'stop payment' instructions to his bank. Furthermore, the instructions to 'stop payment' had not even mentioned that the cheque had been lost. A 21 CRL.REV.PET NO. 1624 OF 2011 perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the accused had failed to reply to the statutory notice under S.138 of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant - accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction - related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction - expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant.” 21. Recently, a three-Judge Bench of the Hon’ble Supreme Court in **Kalamani Tex and Anr vs. P. Balasubramanian** [2021 (2) KHC 517] has reiterated the legal position and doctrine of the reverse onus. It is apposite to extract the relevant paragraphs, which declare the law on the point in the following legal terms: “14. Adverting to the case in hand, we find on a 22 CRL.REV.PET NO. 1624 OF 2011 plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature (s) of an accused on the cheque/negotiable instrument are established, then these ‘reverse onus’ clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243).” ## 22. Similarly, in **M/s.Shree Daneshwari Traders** ## **vs Sanjay Jain** [2019 (4) KHC 495], the Hon’ble Supreme Court has held as follows: “16. Under Section 138 of the Negotiable Instruments Act, once the cheque is issued by the drawer, a presumption under Section 139 of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred to under Section 138 of the Negotiable Instruments Act is for the discharge in whole or in part of any debt or other liability. The initial burden lies upon the complainant to prove the circumstances under which the cheque was issued in his favour and that the same was issued in discharge of a legally enforceable debt. 17. It is for the accused to adduce evidence of such facts and circumstances to rebut the presumption that such debt does not exist or that the cheques are not supported by consideration. Considering the scope of the presumption to be raised under Section 139 of the Act and the nature of evidence to be adduced by the accused to rebut the presumption.” ## 23. In view of the presumption of law under Sections 118 and 139 of the N.I. Act and the categoric 23 CRL.REV.PET NO. 1624 OF 2011 exposition of law in the afore-cited decisions, the onus of proof had shifted to the revision petitioner. The oral testimony of DW1 and Exts.D1 and D2 does not help the revision petitioner in anyway to shift the statutory presumptions. In fact, DW1’s oral testimony has helped the prosecution and has clarified the the transaction. Moreover, the conspicuous missing of pages 2 to 6 in Ext.D1 has lost the credibility of the defence. The contention of the revision petitioner that the pages might have been removed by the 1[st] respondent is to be accepted only with a pinch of salt. A comparison of Ext.D1 passbook with Ext.P8 sample passbook reveals that pages 2 to 6 in Ext.D1 passbook were relevant and material. Thus, the defence set up by the revision petitioner does not inspire confidence in this case. The evidence of PWs1 and 2, read with Exts.P1 to P8 documents probabilises the version put forth by the 1[st] respondent. Thus, I hold that the revision petitioner has not discharged the reverse onus of proof as provided 24 CRL.REV.PET NO. 1624 OF 2011 under Section 139 of the N.I. Act and the mandate laid down by the Hon'ble Supreme Court. 24. Accordingly, I hold that there is no illegality or impropriety in the concurrent findings of the courts below in convicting the revision petitioner for the offence under Section 138 of the N.I. Act. 25. At that point of time, the learned counsel appearing for the revision petitioner prayed that the revision petitioner may be granted at least two months’ time to pay the compensation amount. 26. As the revision petition is pending consideration since 2011 and the revision petitioner has deposited Rs.50,000/- to suspend the execution of the sentence, I find the said submission to be justified. In the result, - (ii) The revision petition is dismissed; - (ii) The conviction and sentence imposed by the courts below stands confirmed; - (iii) Considering the request of the revision petitioner, 25 CRL.REV.PET NO. 1624 OF 2011 two months’ time from today is granted to him, to deposit the fine amount; - (iv) Needless to mention, if the revision petitioner has already deposited any amount, pursuant to the orders of this Court and the Appellate Court, the same shall be adjusted towards the payment of the compensation amount; - (v) The revision petitioner is directed to appear before the Trial Court on or before **15.11.2023** , to undergo the modified sentence and to pay the compensation amount; - (vi) In case of failure of the revision petitioner to appear before the Trial Court as ordered above, the Trial Court is directed to execute the sentence without fail, in accordance with law; - (vii) The execution of the sentence shall stand deferred till 15.11.2023; - (viii) The Registry is directed to forthwith forward a copy of this judgment with the lower court 26 CRL.REV.PET NO. 1624 OF 2011 records to the Trial Court for compliance. sd/- **C.S.DIAS JUDGE** rkc/15.09.23