Section 138
Querist :
Anonymous
(Querist) 21 October 2011
This query is : Resolved
is the plea of lost cheque is acceptable BY COURT when bank is informed in writing by drawer of cheque after issue of cheque but FIR NOT LODGED.lost cheque plea given in reply to notice u/s 138
ajay sethi
(Expert) 21 October 2011
regarded as bogus defence .
if cheque book has been lost why did you not lodge police complaint . ?
if you say chequ e book has been lost who has signed cheques?
if signature on cheques are admitted the presumption will be that cheque was issued in discharge of liability .
the defence is an after thought .
ajay sethi
(Expert) 21 October 2011
Gautam Chand Chopada vs Mahendrakumar Pukhraj Kothari on 22 July, 2008
Bench: V.C. Daga
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL REVISION APPLICATION NO.153 of 2008 WITH
CRIMINAL APPLICATION NO. 154 of 2008
AND
CRIMINAL REVISION APPLICATION NO.154 of 2008 WITH
CRIMINAL APPLICATION NO. 155 of 2008
Gautam Chand Chopada. ... Applicant V/s
Mahendrakumar Pukhraj Kothari
and another. ... Respondents Shri P.B.Vagyani for Applicant.
Shri N.R.Bubna for Respondent No.1.
www.indiankanoon.org/doc/1008065
Ms M.H.Mhatre, APP for Respondent No.2- State. CORAM : V.C.DAGA, J.
DATED : 22nd July 2008.
ORDER :
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. Since these revision applications involve common parties, identical facts, similar defences and argued by common Advocate, hence they are taken up together. The parties for the sake of clarity are referred to in their original capacity.
2. These revisions are directed against two separate judgments and orders dated 27-3-2008 passed by the Additional Sessions Judge, Malegaon, Nashik in Criminal Appeal Nos. 25 of 2006 and 16 of 1006 confirming conviction of the applicant -accused under Section 138 of the Negotiable Instruments Act, 1888 ("N.I.Act" for short) recorded vide two separate judgments and orders both dated 28-6-2006 passed by the Judicial Magistrate, First Class, Malegaon in Criminal Case No.173 of 2000 and Criminal Case No.174 of 2000 with slight modification so far as the imposition of fine of Rs.5,000/- is concerned. The Factual Matrix :
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3. The factual matrix reveal that the Respondent No.1- original complainant is running proprietary concerns under the name and style M/s Parekh Enterprises and M/s M.D.Process dealing in the business of processing and selling grey cloth.
4. The Respondent No.1 (complainant) has alleged that the accused used to be at Malegaon to purchase grey cloth from the shops of the complainant on credit in usual course of business. The complainant has maintained accounts of these business transactions in his books of accounts duly maintained in the regular - 3 -
course of business.
5. It is alleged that the applicant- accused during the course of regular business has purchased grey cloth on credit from the complainant. The accused in discharge of his liability, issued three cheques, detailed herein below:-
------------------------------------------------------ Sr. Date Cheque Amount Remark No. No.
------------------------------------------------------
1. 27-12-1999 618283 Rs.84,521/- ) All cheques ) dishonoured
2. 27-12-1999 618276 Rs.91,231/- )- due to ) stop payment
3. 27-12-1999 618277 Rs.8,20,623/- ) instructions ----------------------------------------------------- . All the above cheques were returned unpaid by bankers with cheque returned memos dated 12-1-2000.
6. The complainant issued statutory notices to the accused-applicants on 24-1-2000 and 25-1-2000 respectively, by Registered Post A.D. as well as under certificate of posting (U.P.C.) through his Advocate demanding the cheque amounts. The accused refused to accept R.P.A.D. notices. However, he received notices sent under certificate of posting. - 4 -
In spite of receipt of notices, the applicant-accused failed to repay the amount demanded. Hence two separate complaints were being filed under section 138 of N.I.Act.
7. The defence of the applicant- accused in the trial court was that the cheque book containing signed cheques was kept by him with his Munim, who lost it on 11.8.1999 as such he informed the bank on 12.8.1999. The Police reports were lodged on 9-2-2000 and 5-7-2000. In turn "stop payment" instructions were also issued to the banker with a request not to honour the subject cheques. The applicant/accused had further taken defence that there was no legally enforceable liability as such there was no question of issuing such cheques. Consequently, offence under Section 138 of NI Act could not be said to have been committed by the applicant-accused. He also challenged the service of notice.
8. All the above defences were negatived by both the Courts below. Both the Courts below concurrently held that cheques were given in discharge of legally enforceable liability payable to the complainant by the accused and that the accused deliberately and - 5 -
wilfully failed to honour subject cheques and thereby committed an act constituting an offence under Section 138 of NI Act. Both the Courts below further held that service of notice was legal and valid. There was no reply to the said notices. The complaints filed under Section 138 of N.I.Act were proved and established by the complainant.
9. Being aggrieved by the aforesaid judgments and orders passed by the Courts below, the present revision applications have been filed by the applicant/accused.
The Submissions :
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10. The learned Counsel for the applicant submits that statutory notices which were sent under Registered Post A.D.or Under Certificate of Posting were never received by the accused. At the rate service thereof has not been proved. He further submits that Respondent No.1 ought to have examined the postman and submitted the certificate from the Postal Department showing that the applicant had refused to accept the said notices. That the evidence of PW 1, complainant is not sufficient to prove that statutory notices were refused by the applicant. It - 6 -
is further urged that the postal envelopes sent under Registered Post A.D. and Under Certificate of Posting cannot be accepted as evidence. He, thus, submits that the complainant failed to prove service of notices on the accused.
11. The learned Counsel for the applicant-accused further submits that affidavit filed by way of examination-in-chief was not proved as such it ought not to have been relied upon. He further submits that account books were not produced by the complainant to prove legally enforceable liability. He further submits that composite questions were put while recording statement under Section 313 of Criminal Procedure Code. Therefore, there is no compliance of the said provision of law. Reliance is sought to be placed on some of the judgments of the Apex Court in support of this submission, the reference to which is not necessary in view of consideration recorded hereinafter.
12. At this juncture, I may place it on record that after having heard learned counsel for the applicant, this Court expressed its inability to admit these revisions and indicated that the revisions have - 7 -
no merit as such liable to be dismissed in limine. The accused, by an order dated 23.4.2000, was directed to remain present in the Court and matters were closed for reasoned orders and personal appearance of the accused. Accused did not remain present and chose to produce medical certificate of one Nandini Hospital, which, ultimately, turned out to be false and fabricated as indicated by me in paras- 32 to 34 hereafter.
13. On 1.7.2008, Mr.P.B.Vagyani, learned counsel informed this Court that his client/accused has collected case papers from him and prayed for discharge. Since the matters were already heard and ultimate fate of the cases was indicated and reasoned orders were to be passed, prayer made by Mr.Vagyani was rejected. With the result, he was not allowed to take discharge from the cases in hand. Now, both revisions are being disposed of for the following reasons:
Consideration :
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14. At the outset, I must observe that none of the judgments relied upon spelt out the submissions canvassed. None of the judgments supports the - 8 -
contentions raised. All these contentions were raised during the course of trial as well as before the lower Appellate Court. Both the Courts have rejected the same by reasoned order with which I concur.
15. The defence that the cheque book containing signed cheques was lost is nothing but an after thought. Apart from this, if the cheque book was lost or misplaced on 11th August, 1999, then why the police report was filed on two different dates i.e. 9th February, 2000 and 5th July, 2000, that too after expiry of six months, has not been explained by the applicant accused.
16. The signature appearing on the cheques in question have not been disputed by the accused during the course of trial.
17. In the case of K.Bhaskaran v. Sankaran Vaidhyan Balan (supra) the Apex Court held that once the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the N.I.Act can legally be drawn to infer that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act - 9 -
enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumption. The accused has failed to rebut this presumption as held by both the Courts below. It is, thus, not open to this Court to reappreciate the evidence and reach to a different conclusion, especially, in a revisional jurisdiction.
18. As stated by the Apex Court in the case of Hiten P. Dalal v. Bratindranath Banerjee, AIR 2001 SC 3897, the presumption available under 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 and the effect of this presumption is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the discharge of any liability. The Supreme Court further held that both Sections 138 and 139 of the Act required that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn and that it introduced an exception to the - 10 -
general rule as to the burden of proof in criminal cases and shifts the onus on to the accused and such a presumption was a presumption of law, as distinguished from a presumption of fact, which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduced evidence showing the reasonable possibility of the non existence of the presumed fact. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the court but to draw a statutory conclusion. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists". The Supreme Court - 11 -
further observed that the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
19. The concurrent findings of fact recorded by both the Courts below cannot be interfered with in the revisional jurisdiction of this Court as stated hereinabove unless they are found to be perverse or based on no evidence. No such case is made out by the learned Counsel for the applicant to entertain this revision application. (see State of Maharashtra v. Jagmohan Singh Kuldip Singh and others, 2004 CRI.L.J. others
4252; Selvaraj v. State of Tamilnadu, Tamilnadu Crimes 3
(2007) 435; Shri Shivshankar Tulsiram Pande v. State of Maharashtra,
Maharashtra 2004 ALL MR (Cri) 722; and Keshav Mahadeo Ingole v. State of Maharashtra, 2004 ALL Maharashtra MR
(Cri) 459.
20. The entire defence raised by the accused is that the alleged cheques, alleged to have been issued by the accused, were returned unpaid because of "stop - 12 -
payment" instructions. According to him, once the "stop payment" instructions are issued no offence under Section 138 of NI Act can be said to have been committed. The apex Court in the case of Goa Plast(P) Ltd. v. Chico Ursula D'Souza, (2004)2 SCC 235 upheld D'Souza
the view held in Modi Cements Ltd. v. Kuchil Kumar Nandi (1998) 3 SCC 249 that once a cheque is issued by a drawer, a presumption under Section 139 must follow and merely because the drawer issued notice to the drawee or to the Bank for stoppage of payment, it will not preclude an action under Section 138 of the Act by the drawee or the holder of the cheque in due course.
21. It is now well settled that Section 138 of the Act is applicable even when a cheque is issued from an already closed account as held in N.A.Issac v. Jeemon P.Abraham and another, 2005 ALL MR (Cri) 1519 another (SC). In the present case, stop payment instructions were issued by the accused after issuance of the cheque. Hence the submission made cannot be accepted. [See Modi Cements Ltd. v. Kuchil Kumar Nandi (supra)]
22. At this juncture, it is relevant to note that this Court in Yogendra Bhagatram Sachdev v. State of Maharashtra,
Maharashtra 2003 ALL MR (Cri) 639, has observed that - 13 -
failure to reply to the notice under Section 138 of the Act, without cogent reason would raise a presumption that the accused had, in fact, no defence whatsoever. In the present case, no cogent explanation has been given by the accused for not replying to the demand notice. The explanation sought to be furnished does not appeal to this Court. It was rightly rejected by the Courts below. The presumption of law was rightly raised by the Courts below.
23. The accused has also not shown any prejudice suffered due to alleged composite questions alleged to have been put to him under Section 313 of Cr.P.C. The contention raised in this behalf is misplaced. It needs no investigation.
24. So far as examination of the postman in support of the postal endorsement "refused" is concerned,it was not necessary in view of law laid down by Apex Court as well as this Court in Puwada Venkateswara Rao v. Chidamana Venkata Ramana, Ramana AIR
1976 SC 869, and this Court in Shamshadbi Naga Pinjari v. Gunvantibai Rasnebi, 1973 Mh.L.J.
Rasnebi 51 and Laxman Irayya Yenganti v. State of Maharashtra, 1995 Mh L.J. Maharashtra
- 14 -
25. So far as notice sent under certificate of posting is concerned, it has not only raised as presumption of posting but also of having received the notice in view of Amrutlal Weljibhai Rathod v. Vishwasrao Deorao Patil,
Patil 1990 Mh.L.J.79. Hence
submission canvassed in this behalf is without any merit.
26. None of the contentions raised warrants fresh consideration at the hands of this Court.
27. In the result, both the revisions applications are without any merit and liable to be dismissed. Hence dismissed in limine. Accused is directed to surrender before trial Court on or before 20th August, 2008.
28. In view of dismissal of revision applications, the criminal applications taken out therein are dismissed as infructuous.
Why Contempt Action :
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29. At this juncture it is relevant to note the observations made by the lower Appellate Court in the operative part of the order reading as under :- - 15 -
"Today i.e. on 27-3-2008 in view of the order passed on Exh.1 and as the accused is avoiding to attend the Court on different grounds since long back, the judgment is pronounced in
absence of the accused. Issue conviction warrant accordingly The copy of the judgment be attached to the Conviction Warrant for the accused."
(Emphasis supplied)
30. Having seen the aforesaid endorsement, during the course of hearing of these revision applications, the applicant/accused was directed to remain present before this Court on 29-4-2008.
31. The applicant instead of remaining present, produced a Medical Certificate dated 24-8-2008, said to have been issued by one Nandini Hospital, Pali, Marwar (Rajasthan) certifying therein that the accused Mr.Gautam Chopda was admitted in their Hospital on 28-4-2008 and expected to remain in the hospital for 2/3 days.
32. The above certificate produced did not inspire judicial confidence of this Court. This Court,therefore, issued notice to Nandini Hospital, Pali, Marwar (Rajasthan) directing the hospital to produce medical papers with respect to admission of - 16 -
the accused Mr.Gautam Chopda in their hospital. The Registry was directed to communicate this order to concerned hospital. Accordingly, order was communicated to the concerned hospital.
33. The learned Advocate for the applicant has produced on record a letter written to him by the said Nandini Hospital dated 4-7-2008. The contents of which are as under :-
Sir,
Our letter dated 29th June 2008 already dispatched by courier. We had not issued any certificate dated 28-4-2008 to Mr.Gautam Chand Chopra regarding his admission in this hospital on 28-4-2008 as he was never admitted in this hospital on 28-4-2008.
Note: This letter is in addition to the
letter dated 29-6-2008 which you have not
received till now. Thus we are sending this
by fax to avoid your inconvenience.
Sd/-
July 4, 2008 Dr.B.K.Goyal". (Emphasis supplied).
34. The reading of the aforesaid letter written by Nandini Hospital under the signature of Dr.D.B.Goyal goes to show that the accused -applicant Mr.Gautam - 17 -
Chopada was never admitted in the said Hospital. This factual matrix goes to show that Mr.Gautam Chopada tried to mislead this Court by producing a false and fabricated document and thereby interfered with administration of justice. He also tried to play fraud on this Court.
35. In the case of S.P.Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs.and others, AIR others
1994 (SC) 853, the Supreme Court observed that the Court of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
36. In the factual scenario drawn hereinabove, I am of the view that filing of the fabricated, bogus and false document before this Court, prima facie amounts to contempt of this court since it had interfered with the administration of justice.
37. In the above view of the matter, issue show cause notice to the applicant-accused - Mr.Gautam - 18 -
Chand Chopda to explain as to why he should not be prosecuted for having committed contempt of this court. Notice be made returnable after three weeks, i.e., on 12th August, 2008.
38. These revisions, for further action, be placed before the Court dealing with contempt jurisdiction. The contemnor to remain present on 12th August 2008. JUDGE
Devajyoti Barman
(Expert) 24 October 2011
Without the original copy of the cheque, the complaint would fail.
