TRIYAMBAK S. HEGDE versus SRIPAD
[2021] 9 S.C.R. 189, Supreme Court of India, 2021
Outcome: Case Partly allowed (Granted)
Segment: Arguments
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TRIYAMBAK S. HEGDE
v.
SRIPAD
(Criminal Appeal Nos. 849-850 of 2011)
SEPTEMBER 23, 2021
[N. V. RAMANA, CJI, SURYA KANT AND
A. S. BOPANNA, JJ.]
Negotiable Instruments Act, 1881 – ss. 118 and 139 – The
case of the appellant was that the respondent approached him to sell
his house – Pursuant to which an agreement dated 06.06.1996 was
executed by the respondent while receiving the advance amount of
Rs.3,50,000/- out of the total agreed price of Rs.4,00,000/- –
Subsequently, appellant found that the house was in respondent’s
father’s name and the respondent had no authority to sell the same
– Appellant demanded return of Rs.3,50,000/- – The respondent
instead of paying the entire amount, issued a cheque for sum of
Rs.1,50,000/- – When cheque was presented in the bank, it was
dishonoured with the endorsement ‘insufficient funds’ – Thereafter,
appellant issued notice to the respondent intimating the dishonorment
of cheque, which was not replied – Appellant filed complaint and
sought prosecution of the respondent u/s. 138 of the N.I. Act –
Judicial Magistrate, first class (JMFC) convicted respondent and
sentenced him to undergo simple imprisonment for 6 months and to
pay fine of Rs.2,00,000/- – The appeals filed before the Sessions
Judge were dismissed – Before the High Court, the respondent
contended that a relative of the appellant was junior in the office
of his advocate and due to such dominant position, the respondent
was made to sign on the agreement and the
cheque though the money
was not paid – Proceeding on the basis of this contention, the High
Court set aside the conviction of the respondent – On appeal, held:
Since the signature on the agreement and more particularly the
dishonored cheque was not disputed, the presumption as provided
in law u/ss. 118 and 139 of the N.I. Act had arisen – Such
presumption would remain till it is rebutted – The contention of the
respondent that a relative of the appellant was the junior of his
advocate and he has used his dominant position to secure the
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signature on the cheque, has absolutely no explanation whatsoever
to indicate the reason for which such necessity arose for him to
secure the signatures of the respondent, if there was no transaction
whatsoever between the parties – That apart, the said story was put
forth for the first time before the High Court – The respondent had
not replied to the notice intimating dishonor of cheque and put forth
such contention – It was neither raised before the JMFC nor before
the Sessions Judge – Further, there is no explanation as to why such an
advocate was engaged by the respondent to defend himself, whose
junior had used his dominant position to secure his signatures, in
the same case relating to dishonor of cheque – Also, it is difficult to
comprehend as to why a cheque of lesser amount Rs.1,50,000/- was
secured than full amount of Rs.3,50,000/-, if there was use of dominant
position by junior advocate – Keeping all these aspects in view, the
case put forth by the respondent does not satisfy the requirement of
rebuttal even if tested on touchstone of preponderance of probability
– The High Court was not justified in its conclusion – The order of
conviction by JMFC is confirmed – However, the sentence is modified,
the respondent sentenced to pay fine of Rs.2,50,000/- only.
Partly allowing the appeals, the Court
HELD: 1. From the facts arising in this case and the nature
of the rival contentions, the record would disclose
that the
signature on the documents at Exhibits P-6 and P-2 is not disputed.
Exhibit P-2 is the dishonoured cheque based on which the
complaint was filed. From the evidence tendered before the
JMFC, it is clear that the respondent has not disputed the
signature on the cheque. If that be the position, as noted by the
courts below a presumption would arise under Section 139 in favour
of the appellant who was the holder of the cheque. Insofar as the
payment of the amount by the appellant in the context of the
cheque having been signed by the respondent, the presumption
for passing of the consideration would arise as provided under
Section 118(a) of N.I. Act. The said provisions are explicit to the
effect that such presumption would remain, until the contrary is
proved. [Paras 11, 12 and 13][97-D-G; 198-A]
2. In the instant facts, the case put forth was that there was
a transaction between the parties where the respondent had
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agreed to sell the house towards which an advance amount of
Rs. 3,50,000/- (Rupees three lakhs fifty thousand only) was paid.
The cheque issued by the respondent was towards part repayment
of the advance amount since the appellant realized that the
respondent did not have proper title to the property and the
transaction could not be carried forward. Since the signature on
the agreement (Exhibit P-6) and more particularly the dishonored
cheque (Exhibit P-2) was not disputed, the presumption as
provided in law had arisen. Such presumption would remain till it
is rebutted. The question however is as to whether, either from
the material available on record or the nature of contentions put
forth it could be gathered that the presumption had been rebutted
by the respondent. As noted by the High Court, the contention of
the respondent was that the relative of the appellant was the junior
in the office of his advocate, who represented the respondent in
a civil case. In that light, it was further contended that due to
such dominant position, the respondent was made to sign on the
agreement and the cheque though the money had not been paid.
The said story was urged for the first time before the High Court.
There is no such suggestion or admission to that effect as contended
by the learned counsel for the respondent. In fact, the suggestion
made to PW1 in his cross-examination is to contend that the
cousin of the appellant was an advocate and as to whether he had
consulted him before entering into the agreement, to which PW1
has answered that he did not find the need to do so. The admission
that his cousin is an advocate does not lead to the conclusion
that he had admitted that he was in a dominant position. [Para
17][200-D-H; 201-A]
3. Further, though the respondent had put forth the
contention that a relative of the appellant was the junior of his
advocate and he has used his dominant position to secure the
signature on the cheque, there is absolutely no explanation
whatsoever to indicate the reason for which such necessity arose
for him to secure the signatures of the respondent, if there was
no transaction whatsoever between the parties. That apart, the
said story even to be examined was put forth for the first time
before the High Court. As is evident from the records the notice
issued by the appellant intimating the dishonorment of the cheque
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and demanding payment, though received by the respondent has
not been replied. In such situation, the first opportunity available
to put forth such contention if true was not availed. Even in the
proceedings before the learned JMFC, the respondent has not
put forth such explanation in the statement recorded under Section
313 of CrPC nor has the respondent chosen to examine himself
or any witness in this regard. The said contention had not been raised
even in the appeal filed before the learned Sessions Judge. [Para
19][201-E-H; 202-A-B]
4. Further, the story as put forth apart from being an
afterthought, ex facie appears to be contrary to the records, as it
is seen that the advocate in question whose junior was in a
dominant position is the same learned advocate who had defended
the respondent in this litigation. If what was being stated was the
true fact, the respondent would have brought the same to the
notice of the said advocate and in such situation would not have
engaged the same advocate against whose junior he had a
grievance and engage him to represent the case relating to
dishonor cheque which was of the same subject matter. Further, if
the cheque was secured in such circumstance and was not voluntary,
it is difficult to comprehend as to why it would have been drawn
for Rs.1,50,000/- (Rupees one lakh fifty thousand only) only when
it is the case of the appellant that the advance amount paid was
Rs.3,50,000/-(Rupees three lakh fifty thousand only) and had to
get back the entire advance paid. The natural conduct would have
been to secure for the full amount if that was the situation. Keeping
all these aspects in view, the case put forth by the respondent
does not satisfy the requirement of rebuttal even if tested on the
touchstone of preponderance of probability. Therefore, in the
present facts it cannot be held that the presumption which had
arisen in favour of the appellant had been successfully rebutted by
the respondent herein. The High Court therefore was not justified
in its conclusion. [Para 20][202-B-F]
K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr. (1999)
7 SCC 510 : [1999] 3 Suppl. SCR 271 – relied on.
Basalingappa v. Mudibasappa (2019) 5 SCC 418 : [2019]
6 SCR 555 – distinguished.
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K. Chinnaswamy Reddy v. State of Andhra Pradesh and
Anr. AIR 1962 SC 1788 : [1963] SCR 412; Kaushalya
Devi Massand v. Roopkishore Khore (2011) 4 SCC 593
: [2011] 3 SCR 879 – referred to.
Case Law Reference
[1999] 3 Suppl.  SCR 271
relied on
Para 13
[2019] 6 SCR 555
distinguished
Para 14
[1963] SCR 412
referred to
Para 18
[2011] 3 SCR 879
referred to
Para 21
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos.849-850 of 2011.
From the Judgment and Order dated 01.12.2009 of the High Court
of Karnataka, Circuit Bench at Dharwad in Criminal Revision Petition
No.1282 of 2006 and Criminal Revision Petition No.1481 of 2006.
Rajesh Inamdar, Javedur Rehman, Rauf Rahim, Advs. for the
Appellant.
G. V. Chandrasekar, N. K. Verma, Ms. Apeksha D., Ms. Anjana
Chandrashekar, Advs. for the Respondent.
The Judgment of the Court was delivered by
A. S. BOPANNA, J.
1. The appellant is before this Court assailing the common order
dated 01.12.2009 in Criminal Revision Petition No.1282/2006 connected
with Criminal Revision Petition No.1481/2006 passed by the High Court
of Karnataka. Through the said order the learned Single Judge has allowed
Criminal Revision Petition No.1282/2006 filed by the respondent herein.
The Criminal Revision Petition No.1481/2006 filed by the appellant herein
has been dismissed. Consequently, the conviction of the respondent,
ordered by the learned Judicial Magistrate and affirmed by the learned
Session Judge is set aside.
2. The case of the appellant
is that the respondent who was known
to him for the past few years approached the appellant and informed
that due to his financial difficulty he intends to sell the house situate in
Sirsi town. The appellant agreed to purchase the same for the negotiated
total sale consideration of Rs.4,00,000/- (Rupees four lakhs only). An
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agreement dated 06.06.1996 was executed by the respondent while
receiving the advance amount of Rs.3,50,000/- (Rupees three lakhs fifty
thousand only). Subsequently, when the appellant made certain enquiries,
he learnt that the house stood in the name of the father of the respondent
and the respondent did not have the authority to sell the same. In that
view, the appellant demanded the return of Rs. 3,50,000/- (Rupees three
lakhs fifty thousand only) which he had paid as the advance amount.
The respondent instead of paying the entire amount, issued a cheque
dated 17.05.1998 for the sum of Rs. 1,50,000/- (Rupees one lakh fifty
thousand only) being part of the amount. The appellant presented the
cheque for realisation on 20.05.1998 when it came to be dishonoured
with the endorsement ‘insufficient funds’.
3. The appellant therefore got issued a notice informing the
respondent about the cheque being dishonoured and also demanding
payment of the cheque amount. The respondent, though received the
notice, failed to respond to the same. In that view, the appellant filed a
complaint under Section 200 of the Criminal Procedure Code (for short
‘CrPC’) on 14.07.1998 in the Court of the Judicial Magistrate, First
Class (for short ‘JMFC’) at Sirsi which was registered as Criminal Case
No.790/2000. Through the said complaint the appellant sought prosecution
of the respondent under Section 138 of the Negotiable Instruments Act,
1881
(for short ‘N.I. Act’). The learned JMFC after providing opportunity
to both the parties convicted the respondent through the judgment dated
09.06.2005 for the offence punishable under Section 138 of the N.I.
Act; sentenced the respondent to undergo simple imprisonment for six
months and to pay the fine of Rs. 2,00,000/- (Rupees two lakhs only). In
default of payment of the fine amount, the accused was ordered to
undergo simple imprisonment for a further period of three months. Out
of the fine amount, Rs. 1,95,000/- (Rupees one lakh ninety-five thousand
only) was ordered to be paid to the appellant as compensation.
4. The respondent herein claiming to be aggrieved by the said
judgment dated 09.06.2005 passed by the JMFC, filed an appeal before
the District & Sessions Judge, Uttara Kannada, Karwar in Criminal
Appeal No.57/2005. The appellant herein also filed an appeal in Criminal
Appeal No.65/2005 before the District and Sessions Judge seeking that
the sentence imposed on the respondent by the Learned JMFC be
enhanced, as the compensation of Rs. 1,95,000/- (Rupees one lakh ninety-
five thousand only) ordered to be paid to the appellant is insufficient.
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The learned Sessions Judge having re-examined the matter and on
reassessing the evidence dismissed both the appeals through separate
judgments both dated 22.04.2006. The respondent herein, in that view,
filed the Revision Petition in Criminal Revision Petition No.1282/2006
and the appellant herein filed the connected Revision Petition No.1481/
2006 before the High Court. The learned Single Judge, as noted has
allowed the Revision Petition filed by the respondent herein and set aside
the conviction order passed by the learned JMFC, which had been
confirmed by the learned Sessions Judge. It is in that background, these
appeals have arisen for consideration.
5. We have heard Mr. Rajesh Inamdar, learned counsel for the
appellant, Mr. G.V. Chandrasekar, learned counsel for the respondent
and perused the appeal papers.
6. Before the learned Magistrate, the appellant had examined
himself as PW1 and got marked the documents at Exhibits P1 to P6.
The deposition of the appellant as PW1 indicated that the appellant and
the respondent were known to each other for about 7 to 8 years prior to
the transaction in question. In that view, in the year 1996 the respondent
approached the appellant, explained his financial difficulties and due to
his financial need, offered to sell the property situate in Sirsi. In that
light, the price was finalised at Rs. 4,00,000/-(Rupees four lakhs only)
and on executing an agreement dated 06.06.1996 (Exhibit P-6), the
advance amount of
Rs. 3,50,000/-(Rupees three lakhs fifty thousand
only) was paid. The balance amount of Rs. 50,000/- (Rupees fifty
thousand only) was to be paid at the time of registration and the transaction
was to be completed within six months. It is alleged that the respondent
kept on postponing the registration on one pretext or the other. Therefore,
on an enquiry the appellant learnt that the property was in fact in the
name of the father of the respondent and the respondent was not the
absolute owner. Since the respondent was not authorised to sell, the
appellant proceeded to cancel the agreement and demanded to pay back
the advance amount. In that view, the cheque dated 17.05.1998 (Exhibit
P-2) was drawn by the respondent for the sum of Rs. 1,50,000/- (Rupees
one lakh fifty thousand only) which was towards part of the advance
amount paid by him. The cheque on being presented was however
dishonoured. The memo issued by the bank was marked as Exhibit P-3.
The notice issued by the appellant and the postal receipt was marked as
Exhibits P-4 and P-5. The respondent did not choose to tender any rebuttal
TRIYAMBAK S. HEGDE v. SRIPAD
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evidence in the Court of JMFC, though he disputed the incriminating
circumstances which were put to him while recording the statement
under Section 313 of the CrPC.
7. In that background, the learned JMFC on taking note that the
signature on the agreement dated Exhibit P-6, more particularly on the
cheque at Exhibit P-2 being admitted, it raised presumption under Section
118 and 139 of the N.I. Act, which had not been rebutted. Therefore,
the learned JMFC convicted the respondent. As noted, the learned
Sessions Judge on re-appreciating the evidence had confirmed the
conviction and sentence. The respondent however put forth the contention
in the Revision Petition only at the time of argument, that the appellant
did not pay the amount but his signature had been secured on the cheque
(Exhibit P-2) and the agreement (P-6) under peculiar circumstances. It
was contended on his behalf that he was a party to a case in the Court
of the Civil Judge, Sirsi wherein he had engaged the services of an
advocate by name Mr. Rama Joshi. It was his further case that Mr.
Vishwanath Hegde who is the junior of Mr. Rama Joshi happens to be
the relative of the appellant herein. He, thus being in a dominant position
had obtained the signature.
8. The learned Single Judge having accepted the said contention
which was raised in the Revision for the first-time during arguments
proceeded to hold that the appellant had not discharged the burden of
proving that he had paid Rs. 3,50,000/- (Rupees three lakhs fifty thousand
only) to the respondent and that the cheque had been issued towards
payment of a part of the same. The learned Single Judge was also of the
opinion that the agreement at Exhibit P-6 cannot be believed, as well.
9. Mr. Rajesh Inamdar, the learned counsel appearing on behalf
of the appellant has contended that the signature on the documents at
Exhibit P-6 and the cheque at Exhibit P-2 is not disputed by the
respondent. In that view, it is contended that the learned JMFC was
justified in raising a presumption against the respondent and convicting
him since there was no rebuttal evidence or contrary material whatsoever.
It is contended that the document at Exhibit P-6 was relied to indicate
that there was a transaction entered into between the parties towards
which the payment was made but the manner in which the High Court
has adverted to the said document is beyond the scope of the requirement
in a proceeding under Section 138 of the N.I. Act. In that circumstance,
it is contended that the learned Single Judge has proceeded at a tangent
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and has set aside the concurrent judgments of the courts below, though
limited scope was available in a Revision Petition.
10. Mr. G.V. Chandrasekar, the learned counsel for the respondent
submitted that the trial court and the lower appellate court has not
examined the case in its correct perspective. Instead, merely because
the signature on the cheque was admitted the courts jumped to the
conclusion by raising a presumption, though there was no evidence on
record to show that the appellant possessed the funds and the same had
been actually paid by him to the respondent to constitute legally
recoverable debt. It is contended that the High Court was justified in
examining and concluding with regard to the circumstance under which
the cheque had been signed and, in that light, had set aside the conviction.
The order therefore does not call for interference is his contention.
11. From the facts arising in this case and the nature of the rival
contentions, the record would disclose that the signature on the documents
at Exhibits P-6 and P-2 is not disputed. Exhibit P-2 is the dishonoured
cheque based on which the complaint was filed. From the evidence
tendered before the JMFC, it is clear that the respondent has not disputed
the signature on the cheque. If that be the position, as noted by the
courts below a presumption would arise under Section 139 in favour of
the appellant who was the holder of the cheque. Section 139 of the N.I.
Act reads as hereunder: -
“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.”
12. Insofar as the payment of the amount by the appellant in the
context of the cheque having been signed by the respondent, the
presumption for passing of the consideration would arise as provided
under Section 118(a) of N.I. Act which reads as hereunder: -
“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, indorsed, negotiated or transferred for
consideration.”
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[A. S. BOPANNA, J.]
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13. The above noted provisions are explicit to the effect that such
presumption would remain, until the contrary is proved. The learned
counsel for the appellant in that regard has relied on the decision of this
court in K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr. (1999)
7 SCC 510 wherein it is held as hereunder: -
“9. As the signature in the cheque is admitted to be that of the
accused, the presumption envisaged in Section 118 of the Act can
legally be inferred that the cheque was made or drawn for
consideration on the date which the cheque bears. Section 139 of
the Act enjoins on the Court to presume that the holder of the
cheque received it for the discharge of any debt or liability. The
burden was on the accused to rebut the aforesaid presumption.
The Trial Court was not persuaded to rely on the interested
testimony of DW-1 to rebut the presumption. The said finding
was upheld by the High Court. It is not now open to the accused
to contend differently on that aspect.”
14. The learned counsel for the respondent has however referred
to the decision of this Court in Basalingappa vs. Mudibasappa
(2019) 5 SCC 418 wherein it is held as hereunder: -
“25. We having noticed the ratio laid down by this Court in the
above cases on Sections 118 (a) and 139, we now summarise the
principles enumerated by this Court in following manner:
25.1. Once the execution of cheque is admitted Section 139 of
the Act mandates a
presumption that the cheque was for the
discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise the probable
defence. The standard of proof for rebutting the presumption is
that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely
on evidence led by him or the accused can also rely on the materials
submitted by the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be drawn not
only from the materials brought on record by the parties but also
by reference to the circumstances upon which they rely.
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25.4. That it is not necessary for the accused to come in the
witness box in support of his defence, Section 139 imposed an
evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness
box to support his defence.
26. Applying the preposition of law as noted above, in facts of the
present case, it is clear that signature on the cheque having been
admitted, a presumption shall be raised under Section 139 that the
cheque was issued in discharge of debt or liability. The question
to be looked into is as to whether any probable defence was raised
by the accused. In cross-examination of PW1, when the specific
question was put that cheque was issued in relation to loan of
Rs.25,000 taken by the accused, PW1 said that he does not
remember. PW1 in his evidence admitted that he retired in 1997
on which date he received monetary benefit of Rs.8 lakhs, which
was encashed by the complainant. It was also brought in the
evidence in the evidence that in the year 2010, the complainant
entered into a sale agreement for which he paid an amount of
Rs.4,50,000 to Balana Gouda towards sale consideration. Payment
of Rs.4,50,000 being admitted in the year 2010 and further payment
of loan of Rs.50,000 with regard to which Complaint No.119 of
2012 was filed by the complainant, copy of which complaint was
also filed as Ext. D-2, there was burden on the complainant to
prove his financial capacity. In the year 2010-2011, as per own
case of the complainant, he made payment of Rs.18 lakhs. During
his cross-examination, when financial capacity to pay Rs. 6 lakhs
to the accused was questioned, there was no satisfactory reply
given by the complainant. The evidence on record, thus, is a
probable defence on behalf of the accused, which shifted the
burden on the complainant to prove his financial capacity and
other facts.”
15. In that light, it is contended that the very materials produced
by the appellant and the answers relating to lack of knowledge of property
details by PW-1 in his cross- examination would indicate that the
transaction is doubtful and no evidence is tendered to indicate that the
amount was paid. In such event, it was not necessary for the respondent
to tender rebuttal evidence but the case put forth would be sufficient to
indicate that the respondent has successfully rebutted the presumption.
TRIYAMBAK S. HEGDE v. SRIPAD
[A. S. BOPANNA, J.]
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16. On the position of law, the provisions referred to in Section
118 and 139 of N.I. Act as also the enunciation of law as made by this
Court needs no reiteration as there is no ambiguity whatsoever. In,
Basalingappa vs. Mudibasappa (supra) relied on by the learned
counsel for the respondent, though on facts the ultimate conclusion therein
was against raising presumption, the facts and circumstances are entirely
different as the transaction between the parties as claimed in the said
case is peculiar to the facts of that case where the consideration claimed
to have been paid did not find favour with the Court keeping in view the
various transactions and extent of amount involved. However, the legal
position relating to presumption arising under Section 118 and 139 of
N.I. Act on signature being admitted has been reiterated. Hence, whether
there is rebuttal or not would depend on the facts and circumstances of
each case.
17. In the instant facts, as noted, the case put forth was that there
was a transaction between the parties where the respondent had agreed
to sell the house towards which an advance amount of Rs.3,50,000/-
(Rupees three lakhs fifty thousand only) was paid. The cheque issued
by the respondent was towards part repayment of the advance amount
since the appellant realized that the respondent did not have proper title
to the property and the transaction could not be carried forward. Since
the signature on
the agreement (Exhibit P-6) and more particularly the
dishonored cheque (Exhibit P-2) was not disputed, the presumption as
provided in law had arisen. Such presumption would remain till it is
rebutted. The question however is as to whether, either from the material
available on record or the nature of contentions put forth it could be
gathered that the presumption had been rebutted by the respondent. As
noted by the High Court, the contention of the respondent was that the
relative of the appellant was the junior in the office of his advocate, Mr.
Rama Joshi, who represented the respondent in a civil case. In that light,
it was further contended that due to such dominant position, the respondent
was made to sign on the agreement and the cheque though the money
had not been paid. The said story was urged for the first time before the
High Court. There is no such suggestion or admission to that effect as
contended by the learned counsel for the respondent. In fact, the
suggestion made to PW1 in his cross-examination is to contend that the
cousin of the appellant was an advocate and as to whether he had
consulted him before entering into the agreement, to which PW1 has
answered that he did not find the need to do so. The admission that his
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cousin is an advocate does not lead to the conclusion that he had admitted
that he was in a dominant position.
18. The Learned Single Judge however while accepting the said
story has referred to certain discrepancies in the agreement (Exhibit P-
6) relating to the details of the property and the appellant having admitted
with regard to not having visited the property or having knowledge of
the location of the property. Such consideration, in our opinion, was not
germane and was beyond the scope of the nature of litigation. The validity
of the agreement in the manner as has been examined by the learned
Single Judge may have arisen if the same was raised as an issue and
had arisen for consideration in a suit for specific performance of the
agreement. The decision in K. Chinnaswamy Reddy vs. State of Andhra
Pradesh and Anr. AIR 1962 SC 1788 relied on by the learned counsel
for the respondent would not be of assistance in the present facts. Firstly,
in the said decision this Court has expressed the limited power available
to the High Court in Revision Petition. Even otherwise, we have
disapproved the manner in which the learned Single Judge has proceeded
to examine the matter on contentions which were not raised as a
foundation before the Trial Court. In the instant case, the said agreement
(Exhibit P-6) had been relied upon only to the limited extent to indicate
that there was a transaction between the parties due to which the amount
to be repaid had been
advanced. To that extent the document had been
proved in evidence and such evidence had not been discredited in the
cross-examination.
19. Further, though the respondent had put forth the contention
that a relative of the appellant was the junior of his advocate and he has
used his dominant position to secure the signature on the cheque, there
is absolutely no explanation whatsoever to indicate the reason for which
such necessity arose for him to secure the signatures of the respondent,
if there was no transaction whatsoever between the parties. That apart,
the said story even to be examined was put forth for the first time before
the High Court. As is evident from the records the notice issued by the
appellant intimating the dishonorment of the cheque and demanding
payment, though received by the respondent has not been replied. In
such situation, the first opportunity available to put forth such contention
if true was not availed. Even in the proceedings before the learned JMFC,
the respondent has not put forth such explanation in the statement
recorded under Section 313 of CrPC nor has the respondent chosen to
TRIYAMBAK S. HEGDE v. SRIPAD
[A. S. BOPANNA, J.]
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examine himself or any witness in this regard. The said contention had
not been raised even in the appeal filed before the learned Sessions
Judge.
20. Further, the story as put forth apart from being an afterthought,
ex facie appears to be contrary to the records since the contention on
behalf of the respondent is that the dominant position of the junior
advocate in the office of Mr. Rama Joshi was used to secure the signature
when the respondent had engaged the said advocates in an earlier civil
case. From the cause title in the present case, in Criminal Case No.790/
2000 before the JMFC, it is seen that Mr. Rama Joshi is the same learned
advocate who had defended the respondent in this litigation. If what
was being stated was the true fact, the respondent would have brought
the same to the notice of the said advocate and in such situation would
not have engaged the same advocate against whose junior he had a
grievance and engage him to represent the case relating to dishonor
cheque which was of the same subject matter. Further, if the cheque
was secured in such circumstance and was not voluntary, it is difficult to
comprehend as to why it would have been drawn for Rs.1,50,000/-
(Rupees one lakh fifty thousand only) only when it is the case of the
appellant that the advance amount paid was Rs.3,50,000/-(Rupees three
lakh fifty thousand only) and had to get back the entire advance paid.
The natural conduct would have
been to secure for the full amount if
that was the situation. Keeping all these aspects in view, the case put
forth by the respondent does not satisfy the requirement of rebuttal even
if tested on the touchstone of preponderance of probability. Therefore,
in the present facts it cannot be held that the presumption which had
arisen in favour of the appellant had been successfully rebutted by the
respondent herein. The High Court therefore was not justified in its
conclusion.
21. Having arrived at the above conclusion, it would be natural to
restore the judgment of the Learned JMFC. Though in that regard, we
confirm the order of conviction, we have given our thoughtful
consideration relating to the appropriate sentence that is required to be
imposed at this stage, inasmuch as; whether it is necessary to imprison
the respondent at this point in time or limit the sentence to imposition of
fine. As noted, the transaction in question is not an out and out commercial
transaction. The very case of the appellant before the Trial Court was
that the respondent was in financial distress and it is in such event, he
had offered to sell his house for which the advance payment was made
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by the appellant. The subject cheque has been issued towards repayment
of a portion of the advance amount since the sale transaction could not
be taken forward. In that background, what cannot also be lost sight of
is that more than two and half decades have passed from the date on
which the transaction had taken place. During this period there would
be a lot of social and economic change in the status of the parties. Further,
as observed by this Court in Kaushalya Devi Massand vs. Roopkishore
Khore (2011) 4 SCC 593, the gravity of complaint under N.I. Act cannot
be equated with an offence under the provisions of the Indian Penal
Code, 1860 or other criminal offences. In that view, in our opinion, in the
facts and circumstances of the instant case, if an enhanced fine is imposed
it would meet the ends of justice. Only in the event the respondent-
accused not taking the benefit of the same to pay the fine but committing
default instead, he would invite the penalty of imprisonment. Hence,
appropriate modification is made to the sentence in the manner as
indicated hereinbelow:
22. For all the aforestated reasons, the following order;
(i)
The order dated 01.12.2009 passed by the High Court in
Criminal Revision Petition No. 1282/2006 and 1481/2006
are set aside.
(ii)
The conviction ordered in C.C. No.790/2000 by the learned
JMFC is restored.
 (iii) The sentence to undergo simple imprisonment for six months
and fine of Rs.2,00,000/- (Rupees two lakhs only) is
however
modified. The Respondent/Accused is instead sentenced to
pay the fine of Rs. 2,50,000/- (Rupees two lakhs fifty
thousand only) within three months. In default of payment
of fine the Respondent/Accused shall undergo simple
imprisonment for six months.
 (iv) From the fine amount, a sum of Rs. 2,40,000/- (Rupees two
lakhs forty thousand only) shall be paid to the Appellant/
Complainant as compensation.
 (v)
The Appeals No. 849-850/2011 are accordingly allowed in
part.
(vi)
The pending applications, if any, stand disposed of.
Ankit Gyan
Appeals partly allowed.
TRIYAMBAK S. HEGDE v. SRIPAD
[A. S. BOPANNA, J.]