Excerpt
The Supreme Court in a judgement on 9 March 2021, while hearing an appeal petition against the High Court of Himachal Pradesh observed that the statement of the accused recorded u/s 313 of the Criminal Procedure Code was not substantive evidence that could rebut the presumption, that the cheques were issued for consideration framed u/s 39 of the Negotiable Instruments Act.
Facts of the Case
In this case, the Appellant was an accused who had approached the complainant in his factory at Moginand. The Appellant showed interest in purchasing non-woven fabric from the complainant which was sold and delivered to him later according to the order. In lieu of the payment, the Appellant issued two cheques dated 15 October 2010 and 1 November 2010 from her account of Punjab National Bank, Karnal in the name of the complainant. While the cheques were presented in Punjab National Bank, they were returned on the account of insufficient funds. Thereafter, the complainant sent two legal notices to the appellant-accused on two addresses. Even after the serving of notices, neither the Appellant responded to the notices nor made payment in furtherance of it within the statutory period.
The preliminary evidence was recorded by the complainant before the learned Trial Judge and consequently, the appellant was directed to be summoned for the offence punishable under Section 138 of the NI Act. The accused pleaded not guilty and demanded a trial. In the conclusion of the recording of the evidence of the complainant, the accused gave his statement under Section 313 of CrPC where he pleaded innocence but did not provide any evidence. The Trial Court returned the finding of the acquittal of the Appellant which became the issue of appeal in the High Court. After taking into consideration all the material on record, the High Court set aside the finding of the Trial judge and held the accused guilty of the offence under Section 138 of NI Act which became the issue of the appeal in the Supreme Court
Pleadings Before the Court
In this case, the learned Counsel on behalf of the Appellant submitted that the claimant was unable to demonstrate that the material/goods were ever sent or obtained by the Appellant, despite the fact that the duty of proof rested with the complainant under the terms of the complaint. It was further submitted that the mere issuance of the cheques by the Appellant would not have been sufficient to justify that the cheques were given in discharge of any debt or other responsibility if the claimant had not met his prima facie burden. It was also contended that the High Court’s finding in the impugned judgment was contrary to well-established legal principles that the Apex Court had considered in interpreting the mandate of Sections 118(a), 138, and 139 of the Act. As a result, the decision was legally unsound.
On the other hand, the learned Counsel on behalf of the Respondent supported the finding of the High court and submitted that there was enough evidence on file to show that these cheques were given in lieu of invoices issued after delivery of goods, which were properly displayed.
Court’s Observation
The bench of the Supreme Court comprising Justices Indu Malhotra and Ajay Rastogi observed that in accordance with the rules of the Act, the onus would transfer on the accused on proof of issuance of the cheque to rebut the presumption that the cheque was given not for the discharge of any debt or liability.
It was further observed that the accused’s statement, as recorded u/s 313 of the Code, was not substantive defence testimony, rather an opportunity for the accused to clarify the incriminating circumstances that surfaced in the prosecution case. As a result, there was no proof to refute the assumption that the checks were given for consideration.
Court’s Judgement
In this case, the Court ruled that there was no error in the judgement of the High Court in recording the findings of the guilt of the Appellant. It supported the judgement of the High Court of convicting the accused for the offence committed u/s 138 of the NI Act. It also directed that the bail bonds should be cancelled and the accused should either pay the fine or serve the sentence according to the Order given by the High Court.
Case Name: Sumeti Vij vs. Paramount Tech Fab Industries [CrA 292 of 2021]
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