Validly Signed Blank Cheque Towards Some Dues Would Attract Presumption In Favour Of Payee U/S 139 NI Act: Karnataka High Court

A single judge bench of Justice Ramachandra D Huddar observed this while upholding the conviction handed down to accused Jayamma under section 138 of the Act, by the trial court and which was confirmed by the first appellate court.

The bench said “In the absence of any finding that the cheque in question was not signed by the petitioner–accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the complainant, it may reasonably be presumed that cheque was filled in by the complainant being the payee.”

The accused had approached court questioning judgment passed trial court dated 13/11/2013 and which was confirmed by the appellate court vide its order dated 05.03.2013. The accused has been convicted for the offence punishable under Section 138 of the N.I. Act and directed to pay fine of Rs.2,00,000, in default payment of fine, she shall undergo simple imprisonment for a period of four months.

In the revision petition it was contended that the cheque has been issued to one Jayamma. Admittedly, the name of the respondent (complainant) is Nagamma. Though the respondent says that she is called as Jayamma, but no document is produced to substantiate the same. The Revision Petitioner has produced documents to show that her name is Nagamma. As such, the provisions of Section 139 of the N.I. Act cannot be extended so to benefit the respondent i.e. the complainant.

Further, in absence of a cogent evidence, the courts below erred in holding that the accused has received cheque for a consideration from the complainant which is erroneous. The complainant has not placed any material before the Trial Court to show that she has paid Rs.1,00,000 to the accused.

The bench noted that provisions of the N.I. Act in particular, Sections 20, 87 and 139 make it amply clear that, a person who signs a cheque and makes it over to a payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability.

Further it said the penal provision of Section 138 of the Act is intended to be a deterrent to callous issuance of negotiable instruments such as cheques without serious intention to honour the promise implicit in the issuance of the same.

On going through the evidence of the complainant the bench said “So far as the name of complainant as Nagamma or Jayamma is concerned, though it is highlighted by the counsel for the accused that this Nagamma is not Jayamma etc. but both complainant and accused adduced the evidence identifying the complainant as Nagamma and Jayamma. That means she (complainant) is called Nagamma as well as Jayamma. Therefore, there is no substance in the submission of the counsel for the accused that the said cheque was misused etc. by the complainant.”

The court then accepted the finding of the courts below rejecting the plea of the accused that the complainant had misused blank signed cheque made over to her by the accused.

It said “In view of the admissions of the accused in the cross-examination, it can be said that the Trial Court and First Appellate Court are right in making such a factual finding based on the evidence placed on record.”

Then it observed “The provisions of Section 139 of the N.I Act, mandates that unless the contrary is proved, it is to be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 of the N.I. Act in discharge of any whole or any part of any debt or other liability. Needless to mention that the presumption contemplated under Section 139 of the N.I Act is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused, drawer of the cheque.”

Further it opined “The presumption under Section 139 of the N.I. Act is a presumption of law as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution 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 and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. It is said that presumption of innocence is undoubtedly a human right as contended on behalf of the revision petitioner - accused. However the guilt may be established by recourse to presumptions in law and presumptions of facts.”

Thus it held “There is no acceptable grounds to interfere with the concurrent findings of both the Courts.”

It also expressed that “It is well settled that in exercise of revision jurisdiction under Section 397 Cr.P.C., the High Court, does not in the absence of perversity, interfere in the concurrent factual findings. It is not for the Revisional Court to analyse and re-appreciate the evidence on record.”

Accordingly it dismissed the petition and directed the petitioner to deposit the fine amount before the Trial Court within four weeks from today.

Case Title: Jayamma And Jayamma @ Nagamma

Case No: CRIMINAL REVISION PETITION NO.6 OF 2014

Citation: 2023 LiveLaw (Kar) 60

Date of order: 03-02-2023

Appearance: K.S.Ganesh, Advocate for petitioner.

Shahnawaz M Mamadapur, Advocate for respondent.