ROHITBHAI JIVANLAL PATEL v. STATE OF GUJARAT & Anr.

put forward the defence that in fact, he had had the monetary transaction with the said Shri ‘J’ and not with the complainant. Apart from making certain suggestions in the cross-examination, the appellant has not adduced any documentary evidence to satisfy even primarily that there had been some monetary transaction of himself with Shri ‘J’. Shri ‘J’ was cross-examined on various aspects as regards the particulars in the writing on the stamp paper and the date and time of the transactions. The statement of ‘J’ does not make out any case in favour of the appellant. [Paras 17, 18, 18.3 & 18.4] [437-D-H; 438-G; 439-G-H]

1.4 The appellant could not deny his signatures on the said writing but attempted to suggest that his signatures were available on the blank stamp paper with Shri ‘J’. This suggestion is too remote and too uncertain to be accepted. No cogent reason is available for the appellant signing a blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of Bank and account number are of the same cheques which form the subject matter of these complaint cases. The said document bears the date 21.03.2007 and the cheques were post-dated, starting from 01.04.2008 and ending at 01.12.2008. No reason to discard this writing from consideration. [Para 18.6] [440-E-F]

1.5 The present one was clearly a case where the decision of the Trial Court suffered from perversity and fundamental error of approach; and the High Court was justified in reversing the judgment of the Trial Court. The observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. The result of such A B C D E F G H ROHITBHAI JIVANLAL PATEL v. STATE OF GUJARAT 421 presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not. The other observations as regards any variance in the statement of complainant and witness; or want of knowledge about dates and other particulars of the cheques; or washing away of the earlier cheques in the rains though the office of the complainant being on the 8th floor had also been of irrelevant factors for consideration of a probable defence of the appellant. Similarly, the factor that the complainant alleged the loan amount to be Rs. 22,50,000/- and seven cheques being of Rs. 3,00,000/- each leading to a deficit of Rs. 1,50,000/-, is not even worth consideration for the purpose of the determination of real questions involved in the matter. Significantly, the specific amount of loan (to the tune of Rs. 22,50,000/-) was distinctly stated by the appellant in the aforesaid acknowledgment dated 21.03.2017. The Trial Court appears to have proceeded on a misplaced assumption that by mere denial or mere creation of doubt, the appellant had successfully rebutted the presumption as envisaged by Section 139 of the NI Act. In the scheme of the NI Act, mere creation of doubt is not sufficient. The High Court has conscientiously and carefully taken into consideration the views of the Trial Court and after examining the evidence on record as a whole, found that the findings of the Trial Court are vitiated by perversity. Hence, interference by the High Court was inevitable; rather had to be made for just and proper decision of the matter. [Paras 19-21] [441-D-H; 442-A-D, F]

1.6 The findings of the High Court convicting the appellant for offence under Section 138 of the NI Act are confirmed. In the totality of the circumstances of this case and the nature of offence which is regulatory in nature, the punishment as regards monetary terms calls for no interference but then, the sentence of imprisonment deserve to be modified. The common judgment and order dated 08.01.2018 in R/Criminal Appeal No. 1187/2017 A B C D E F G H 422 SUPREME COURT REPORTS [2019] 5 S.C.R. connected with R/Criminal Appeal Nos. 1191/2017 to 1196/2017 by the High Court of Gujarat at Ahmedabad is maintained as regards conviction of the appellant for the offence under Section 138 of the NI Act, 1881 for dishonour of 7 cheques in the sum of Rs. 3 lakhs each, as drawn by him in favour of the complainant- respondent No. 2; however, the sentence is modified in the manner that in each of these 7 cases, the appellant shall pay fine to the extent of double the amount of each cheque (i.e., a sum of Rs. 6 lakhs in each case) within 2 months from today with the stipulation that in case of default in payment of fine, the appellant shall undergo simple imprisonment for a period of one year. On recovery of the amount of fine, the complainant-respondent No. 2 shall be compensated to the tune of Rs. 5.5 lakhs in each case. In the event of imprisonment for default in payment of fine, the sentences in all the 7 cases shall run concurrently. [Paras 22, 23.1 and 24] [442-G; 443-A-B, D-G] Rangappa v. Sri Mohan (2010) 11 SCC 441 : [2010] 6 SCR 507 – relied on.