BACKGROUND
The case of Kishan Rao v. Shankargouda[1] covers the core issue that whether the denial of the existence of loan or debt sufficient to rebut the presumption mentioned under section 139 of the Negotiable instruments act, 1881[2] and defines the extent of revisional jurisdiction of the High court given under section 401 of The Code of Criminal Procedure, 1973[3].
In the following case, the appellant (complainant) and the respondent (accused) had a pre-existing amicable relationship. The respondent approached the appellant to procure a loan of Rs 2,00,000 for one month to which the appellant agreed and extended the loan to the respondent on 25/12/2005. The respondent issued a post-dated cheque of date 25/1/2006 in the favor of the appellant for repayment of the loan. The cheque was dishonored due to insufficient funds when given for collection in the Bank of Maharashtra at Gulbarga. Further, the cheque was again represented on 1/3/2006 for collection on the respondent’s request but was again dishonored due to insufficient funds. The appellant issued a notice demanding the payment of Rs 2,00,000 which the respondent received on 14/3/2006 and replied on 31/2/2006 alleging that the cheque was stolen by the appellant. The Appellant filed a case by alleging an offense under section 138 of The Negotiable Instrument Act, 1881[4]. The trial court convicted the accused under section 138 of The Negotiable Instrument Act, 1881, and sentenced him to pay 2,50,000 and 6 months of imprisonment[5]. The appeal filed by the respondent was also dismissed however, The High Court denounced the conviction order during the revision of the case.
ISSUE
The High court reappreciated the evidence and pronounced that the respondent has been successful in creating a doubt in the mind of the High Court concerning the existence of any debt or liability henceforth, the High Court denounced the conviction order. On this order, The High Court the appellant presented his contentions stating that the conviction has been proved in the trial court and that the High Court in its revisional jurisdiction vested by section 397[6] and 401 of The Criminal Procedure Code, 1973 can only set aside conviction if the findings and evidence on record are perverse and fail to prove the offense against the accused.
Further, the appellant presented a bank official as its witness (PW2) who made it eloquent that the cheque wasn’t returned due to the absence of signatures but was returned due to insufficient funds and under section 139 of The Negotiable Instrument Act, 1881 the cheque is to be presumed to be dishonored[7] unless the contrary is proved. Hence, the appellant was also successful in proving that the cheque wasn’t stolen and believed that on this ground alone the order of The High Court should be set aside.
ANALYSIS OF ISSUES
The judgement given by The Supreme Court is articulate and provides premise and reasoning to buttress its decision. First, The Apex Court examined the extent of revisional jurisdiction of The High Court and pressed the judgement given in the case of the State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri[8] where it was held that the revisional jurisdiction of The High Court is supervisory in nature through which the court can correct any miscarriage of justice but there is an intelligible differentia between the revisional and appellate power of the court. Hence, The High Court cannot reappreciate the evidence and set aside the order of conviction in virtue of its revisional powers.
Further, the court relied on the judgement in the case of Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke[9] where it was held that the order of the magistrate cannot be set aside merely because, another conclusion can be drawn from the given evidence albeit, if the order is perverse and unreasonable it can be set aside by The High Court. Instead of the given judgement The Supreme Court classified the decision of The High Court as an arbitrary and capricious exercise of judicial discretion.
Furthermore, The Supreme Court scrutinized sections 118[10] and 139 of The Negotiable Instruments Act, 1881 by applying the definition of ‘proved’ from section 3 of The Evidence Act, 1872[11]. The Hon’ble Court cogently suggests that if the complainant is successful in proving that the instrument (in this case cheque) was drawn by the accused, the rule of presumptions mentioned under Section 118 and 139 of The Negotiable Instrument Act, 1881 helps to shift the burden of proof on the accused. The Hon’ble Court added that the denial of the existence of debt would not rebut the presumption because a presumption is not in itself evidence, but it makes a prima facie case for the complainant.
The Supreme Court further expounded upon the above mentioned point by pressing the judgment in the case of Kumar Exports Vs. Sharma Carpets[12] where it was held that the accused should adduce direct evidence to prove the non-existence of any consideration or debt which should be so probable that a prudent man in the given circumstances would act upon as if the debt doesn’t exists. The Supreme court also took into consideration the documentary evidence and witnesses adduced by the appellant which proved the existence of debt and held that the respondent did not come to the witness box to support his contentions additionally he also failed to rebut the aforementioned presumptions.
CONCLUSION
The Supreme Court held that High Court committed an error in setting aside the order of conviction and that the reappreciation of the evidence which has already been tried by the trial court is out of the scope of revisional jurisdiction of the court. The Supreme Court hence allowed the appeal and restored the decision of the appellate court. The Judgment is well structured and eloquently covers all the rules of presumptions which is to be made under section 139 of The Negotiable Instruments Act, 1881 alongside the rebuttal of such presumptions. The judgment scrutinizes the burden of proof in the case of dishonoring of the cheque. Such judgments help in making the provisions of the statute more cogent and ensure effective implementation of the law by providing various creative interpretations of the law.
Author(s) Name: Sarthak Mittal (Guru Gobind Singh Indraprastha University, Delhi)
References:
[1] (2018) 8 SC 165
[2] The Negotiable instruments act, 1881 (Act 3 of 1871), Section 139 of The Act refers to the presumptions made when a cheque is dishonored.
[3] The Code of Criminal Procedure, 1973 (Act no. 2 of 1974), Section 401 of the Procedure Talks about High Court’s revisional jurisdiction.
[4] Section 138 of The Negotiable instruments act, 1881 refers to dishonoring of cheque.
[5] Shankargouda vs. Kishan Rao, (2016) SCC Online Kar 8467
[6] Section 397 of The Code of Criminal Procedure, 1973 refers to the provision of calling of records for revision by The High Court.
[7] Dishonored cheque has been specified in Section 138 of The Negotiable Instruments Act, 1881
[8] (1999) 2 SCC 452, (Para 5, SCC p. 454-455)
[9] (2015) 3 SCC 123, (Para 14, SCC p. 135)
[10] Section 118 of The Negotiable Instruments Act, 1881 refers to the Presumptions which can be made in regard to Negotiable Instruments.
[11] The Evidence Act, 1872 (Act no. 1 of 1872), Section 3 of the Act defines ‘prove’ as to something which the court believes to exist or considers its existence so probable that a prudent man may ought.
[12] (2009) 2 SCC 513, (Para 20, SCC p. 520)
