Judgment · High Court · 2011

Shri eel endra I). (iunde lHr C I I Jadhav, Advocate) ,...:\PII All AI Maghool Ahmed S/o Mehahooh Sah Jamadar, /\ted about $4 \ ears. 0cc: Business. R1o Shiggaon. lii si: I laveri, Bv Shri J S.Shett\ Ad ocale) I his Cri m i na Appeal is P led under Sect ion 378 the (ode ot F riniinal Procedure pra\ n to set aside the ud nient and order )) I 7.7LOS paed in (rI\o$5 7ou5 on the 1Hed’ the I I \O L p 1 1 the udeinent and rder of conviction and sentence dated 3 ns\ed in (. N\o5O Zutt2 on mc He ot Indn. 1 \iI i.. h.non the ( irOn lliis appeal coming on br linal hearing this day. the Court deli’ ered (lie Ihlloning: JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the respondent.

The appellant is the complainant who had lodged a complaint alleging an offence punishable under Section 138 of the Negotiable Instruments Act. 1881 (hereinafler refCrred to as ihe Ae(. lbr hrevit ). l’he matter was contested beibre the trial Court. ilie complaint was allowed and the petitioner was sentenced to pay Z.60.uOO’- as compensation to the complainant and was also sentenced to one yea(s simple imprisonment and to pay t3.000/- as fine, in default of payment of the fine amount he was to undergo further simple imprisonment of two months.

This having been challenged in appeal. the loner appellate Court has reversed the finding of the trial Court on the ground that the cheque in question had hot been issued (hr discharge of the loan transaction as alleged. bitt had been issued as securit5 under an earlier transaction. nhich “as sought to he misused by the complainant. On the basis of the defence that was set up by the I present respondent the Appellate Court has reversed the finding of the trial Court in this regard. The defence that is sought to be set up by the respondent that the loan transaction was of the year 1998 and that the cheque had been issued as security for due repay ment of the said loan and it is that cheque ‘hich has been misused. uats also the e idence tendered b ay of rebuttal evidence by the respondent. And on the basis of a stray admission by the complainant to the effect that there was indeed a loan transaction of October 1998. that the lower Appellate Court has accepted the rebuttal evidence by the respondent and has held that there was no consideration or a legally reco erable debt. 11w which cheque issued. Accordingly. had reversed the finding of the trial Court.

The learned counsel for the appellant would straight a” ay point out the cheque in question is dated 17.2.1998. hereas the alleged loan transaction is of October 1998. Therelbrc. it is illogical fir the petitioner to have issued a cheque in respect of at loan in the month of October 1998 to hae issued a cheque in the month of February 1998. This aspect of the matter has been glossed over by the lower Appellate Court in accepting the self sers ing e’ idenee of the respondent. 4

When there ‘sas no eprcss rebuttal e’ idence nor could it he demonstrated from the evidence ot the complainant that there was any substance in the defence that was set tip by the respondent. The learned counsel would submit that the question as to. whether the presumption under Section 139 of the Act is dislodged has been settled in the case of Rangappa vs. Mohan. AIR 2010 Supreme Court I 898. wherein it is spelt out the presumption raised under Section 139 of the Act is no doubt a rebuttal presumption but the burden of discharging the same is on the accused and this may be possible not only by tendering indepcndent e idence hut e en uith reference to the evidence ot the complainant himselt if it is possible to raise a serious doubt as to the maintainability of the complaint, on that basis.

From the facts and circumstances of the present case on hand. it cannot he said that such a presumption has been dislodged by the respondent on the basis of the nebulous contention to the cheque having issued in respect of an earlier trmisaiction. In that icw of the matter though the learned counsel 11w the respondent would make a weak attempt to resist the present appeal. the only point that may arise tbr consideration is. whether the S 5 Court was justified in not only punishing the accused with payment of twice the amount of the cheque while also imposing a sentence of imprisonment in addition to the fine. This would however require modification.

Accordingly the appeal is allowed in part. The judgment of the lower Appellate Court is set aside.

Insofar as the punishment imposed on the respondent is concerned, the punishment of imprisonment disproportionate to the offence alleged. In that the petitioner is sought to be punished twice over by directing him to pay compensation amount amounting to twice the amount of the cheque. while also imposing sentence of imprisonment. Accordingly. sentence of imprisonment of one year is set aside subject to the petitioner paying the fine amount of .4O.OOO/- of which .3O.OOO/- shall be paid as compensation to the appellant and tIO.000/- shall be appropriated by the State as fine.

The amount shall be paid within a period of four weeks. failing which, the sentence imposed by the trial Court insofar ‘3 t. 6 the imprisonment for a period of two months shall be implemented. Mrk/ Sd! JUDGE