ROHITBHAI JIVANLAL PATEL versus STATE OF GUJARAT & ANR.

ROHITBHAI JIVANLAL PATEL

STATE OF GUJARAT & ANR.

(Criminal Appeal No.508 of 2019)

MARCH 15, 2019

[ABHAY MANOHAR SAPRE AND

DINESH MAHESHWARI, JJ.]

Negotiable Instruments Act, 1881 – ss. 118, 138 and 139 –Presumption u/ss. 118 and 139 – 7 cheques of Rs. 3 Lakhs each,drawn by the accused-appellant in favour of the complainant-respondent no.2 – Dishonoured – Trial Court dismissed the 7complaints cases filed by respondent no. 2 – High Court set asidethe said orders and convicted the appellant for the offence u/s.138– On appeal, held: Appellant could not deny his signature on thecheques in question – Said cheques were presented to the Bankconcerned within the period of their validity and were returnedunpaid for insufficient funds or for account being closed – All thebasic ingredients of s.138 as also of ss.118 and 139 were apparenton the face of the record – Trial Court took note of these facts andhad drawn the requisite presumption – Therefore, it was required tobe presumed that the cheques in question were drawn forconsideration and the holder of the cheques i.e., the respondentno.2 received the same in discharge of an existing debt – Onus,therefore, shifted on the appellant to rebut such presumption –However, even after purportedly drawing the presumption u/s.139,the Trial Court proceeded to question the want of evidence on thepart of the respondent no.2 as regards the source of funds foradvancing loan to the appellant and want of examination of relevantwitnesses who allegedly extended him money for advancing it tothe appellant – This approach of the Trial Court was at variancewith the principles of presumption in law – Appellant not able todischarge his burden of bringing on record such material whichcould tilt the preponderance of probabilities in his favour – Decisionof the Trial Court suffered from perversity and fundamental errorof approach – High Court justified in reversing the judgment of theTrial Court – Punishment as regards monetary terms not interfered

Abut, sentence of imprisonment modified – In each of the 7 cases, theappellant to pay fine, double the amount of each cheque (i.e. Rs. 6lakhs) – In case of default in payment of fine, the appellant toundergo simple imprisonment for one year – On recovery of theamount of fine, the respondent no. 2 be compensated to the tune ofRs. 5.5 lakhs in each case – In the event of imprisonment for defaultBin payment of fine, the sentences in all the 7 cases to run concurrently.

Partly allowing the appeal, the Court

HELD: 1.1 Ordinarily, the Appellate Court will not beupsetting the judgment of acquittal, if the view taken by TrialCCourt is one of the possible views of matter and unless theAppellate Court arrives at clear finding that the judgment ofthe Trial Court is perverse, i.e., not supported by evidence onrecord or contrary to what is regarded as normal or reasonable;or is wholly unsustainable in law. Such general restrictions areessentially to remind the Appellate Court that an accused isDpresumed to be innocent unless proved guilty beyond reasonabledoubt and judgment of acquittal further strengthens suchpresumption in favour of the accused. However, such restrictionsneed to be visualised in the context of the particular matter beforethe Appellate Court and the nature of inquiry therein. The sameErule with same rigour cannot be applied in matter relating tothe offence under Section 138 of the Negotiable Instruments Act,1881, particularly where presumption is drawn that the holderhas received the cheque for the discharge, wholly or in part, ofany debt or liability. Of course, the accused is entitled to bring onrecord the relevant material to rebut such presumption and toFshow that preponderance of probabilities are in favour of hisdefence but while examining if the accused has brought about aprobable defence so as to rebut the presumption, the AppellateCourt is certainly entitled to examine the evidence on record inorder to find if preponderance indeed leans in favour of theGaccused. [Para 11.1] [432-B-F]

1.2 The appellant could not deny his signature on thecheques in question that had been drawn in favour of thecomplainant on bank account maintained by the accused for asum of Rs. 3 lakhs each. The said cheques were presented to the

Bank concerned within the period of their validity and werereturned unpaid for the reason of either the balance beinginsufficient or the account being closed. All the basic ingredientsof Section 138 as also of Sections 118 and 139 NI Act are apparenton the face of the record. The Trial Court had also consciouslytaken note of these facts and had drawn the requisite presumption.Therefore, it is required to be presumed that the cheques inquestion were drawn for consideration and the holder of thecheques i.e., the complainant received the same in discharge ofan existing debt. The onus, therefore, shifts on the appellant toestablish probable defence so as to rebut such presumption.On the aspects relating to preponderance of probabilities, theaccused has to bring on record such facts and such circumstanceswhich may lead the Court to conclude either that the considerationdid not exist or that its non-existence was so probable that aprudent man would, under the circumstances of the case, act uponthe plea that the consideration did not exist. Though there maynot be sufficient negative evidence which could be brought onrecord by the accused to discharge his burden, yet mere denialwould not fulfil the requirements of rebuttal as envisaged underSection 118 and 139 of the NI Act. [Paras 14, 16] [434-D-F;435-H; 436-A-B]1.3 In the case at hand, even after purportedly drawing thepresumption under Section 139 of the NI Act, the Trial Courtproceeded to question the want of evidence on the part of thecomplainant as regards the source of funds for advancing loan tothe accused and want of examination of relevant witnesses whoallegedly extended him money for advancing it to the accused.This approach of the Trial Court had been at variance with theprinciples of presumption in law. After such presumption, the onusshifted to the accused and unless the accused had dischargedthe onus by bringing on record such facts and circumstances asto show the preponderance of probabilities tilting in his favour,any doubt on the complainant’s case could not have been raisedfor want of evidence regarding the source of funds for advancingloan to the appellant. The aspect relevant for consideration hadbeen as to whether the appellant has brought on record suchfacts/material/circumstances which could be of reasonablyprobable defence. In order to discharge his burden, the accused

ABCD

Aput forward the defence that in fact, he had had the monetarytransaction with the said Shri ‘J’ and not with the complainant.Apart from making certain suggestions in the cross-examination,the appellant has not adduced any documentary evidence to satisfyeven primarily that there had been some monetary transaction ofhimself with Shri ‘J’. Shri ‘J’ was cross-examined on variousBaspects as regards the particulars in the writing on the stamppaper and the date and time of the transactions. The statementof ‘J’ does not make out any case in favour of the appellant. [Paras17, 18, 18.3 & 18.4] [437-D-H; 438-G; 439-G-H]

1.4 The appellant could not deny his signatures on the saidCwriting but attempted to suggest that his signatures wereavailable on the blank stamp paper with Shri ‘J’. This suggestionis too remote and too uncertain to be accepted. No cogent reasonis available for the appellant signing blank stamp paper. It isalso indisputable that the cheques as mentioned therein with allDthe relevant particulars like cheque numbers, name of Bank andaccount number are of the same cheques which form the subjectmatter of these complaint cases. The said document bears thedate 21.03.2007 and the cheques were post-dated, starting from01.04.2008 and ending at 01.12.2008. No reason to discard thiswriting from consideration. [Para 18.6] [440-E-F]

1.5 The present one was clearly case where the decisionof the Trial Court suffered from perversity and fundamental errorof approach; and the High Court was justified in reversing thejudgment of the Trial Court. The observations of the Trial Courtthat there was no documentary evidence to show the source ofFfunds with the respondent to advance the loan, or that therespondent did not record the transaction in the form of receiptof even kachcha notes, or that there were inconsistencies in thestatement of the complainant and his witness, or that the witnessof the complaint was more in know of facts etc. would have beenGrelevant if the matter was to be examined with reference to theonus on the complaint to prove his case beyond reasonable doubt.These considerations and observations do not stand in conformitywith the presumption existing in favour of the complainant byvirtue of Sections 118 and 139 of the NI Act. The result of suchpresumption is that existence of legally enforceable debt is tobe presumed in favour of the complainant. When such apresumption is drawn, the factors relating to the want ofdocumentary evidence in the form of receipts or accounts or wantof evidence as regards source of funds were not of relevantconsideration while examining if the accused has been able torebut the presumption or not. The other observations as regardsany variance in the statement of complainant and witness; or wantof knowledge about dates and other particulars of the cheques;or washing away of the earlier cheques in the rains though theoffice of the complainant being on the 8[th] floor had also been ofirrelevant factors for consideration of probable defence of theappellant. Similarly, the factor that the complainant alleged theloan amount to be Rs. 22,50,000/- and seven cheques being ofRs. 3,00,000/- each leading to deficit of Rs. 1,50,000/-, is noteven worth consideration for the purpose of the determination ofreal questions involved in the matter. Significantly, the specificamount of loan (to the tune of Rs. 22,50,000/-) was distinctly statedby the appellant in the aforesaid acknowledgment dated21.03.2017. The Trial Court appears to have proceeded on amisplaced assumption that by mere denial or mere creation ofdoubt, the appellant had successfully rebutted the presumptionas envisaged by Section 139 of the NI Act. In the scheme of theNI Act, mere creation of doubt is not sufficient. The High Courthas conscientiously and carefully taken into consideration theviews of the Trial Court and after examining the evidence onrecord as whole, found that the findings of the Trial Court arevitiated by perversity. Hence, interference by the High Courtwas inevitable; rather had to be made for just and proper decisionof the matter. [Paras 19-21] [441-D-H; 442-A-D, F]

1.6 The findings of the High Court convicting the appellantfor offence under Section 138 of the NI Act are confirmed. In thetotality of the circumstances of this case and the nature of offencewhich is regulatory in nature, the punishment as regards monetaryterms calls for no interference but then, the sentence ofimprisonment deserve to be modified. The common judgmentand order dated 08.01.2018 in R/Criminal Appeal No. 1187/2017

CDE

Aconnected with R/Criminal Appeal Nos. 1191/2017 to 1196/2017by the High Court of Gujarat at Ahmedabad is maintained asregards conviction of the appellant for the offence under Section138 of the NI Act, 1881 for dishonour of 7 cheques in the sum ofRs. 3 lakhs each, as drawn by him in favour of the complainant-respondent No. 2; however, the sentence is modified in theBmanner that in each of these 7 cases, the appellant shall pay fineto the extent of double the amount of each cheque (i.e., sum ofRs. 6 lakhs in each case) within 2 months from today with thestipulation that in case of default in payment of fine, the appellantshall undergo simple imprisonment for period of one year. OnCrecovery of the amount of fine, the complainant-respondent No.2 shall be compensated to the tune of Rs. 5.5 lakhs in each case.In the event of imprisonment for default in payment of fine, thesentences in all the 7 cases shall run concurrently. [Paras 22,23.1 and 24] [442-G; 443-A-B, D-G]

DRangappa v. Sri Mohan (2010) 11 SCC 441 : [2010] 6SCR 507 – relied on.

Arulvelu and Anr. v. State represented by PublicProsecutor & Anr. (2009) 10 SCC 206 : [2009] 14 SCR1081; M.S. Narayana Menon alias Mani v. State ofEKerala and Anr. (2006) 6 SCC 39 : [2006] 3 Suppl.SCR 124 ; Kumar Exports v. Sharma Carpets (2009) 2SCC 519 : [2008] 17 SCR 572 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealGNo.508 of 2019.

From the Judgment and Order dated 08.01.2018 of the High Courtof Gujarat in Criminal Appeal (Against Acquittal) No. 1187 of 2017 withCriminal Appeal No. 1191 of 2017 to 1196 of 2017

Huzefa Ahmadi, Sr. Adv., Pradhuman Gohil, Mrs. Taruna SinghGohil, Himanshu Chaubey, Ms. Tanvi Bhatnagar, Advs. for the Appellant.

Abhiraj R. Trivedi, Shashank Bajpai, Ms. Shakur Sudha Shukla,Ms. Richa Pandey, Amit Dubey, Prakash Kumar Singh, Ms. HemantikaWahi, Ms. Jesal Wahi, Ms. Puja Singh, Ms. Parul Luthra, Advs. for theRespondents.

The Judgment of the Court was delivered by

DINESH MAHESHWARI, J. 1. Leave granted.

2. This appeal is directed against the common judgment and orderdated 08.01.2018 in R/Criminal Appeal No. 1187/2017 connected withR/Criminal Appeal Nos. 1191/2017 to 1196/2017 whereby, the High Courtof Gujarat at Ahmedabad has reversed the respective judgment andorders dated 09.06.2017 as passed by the 8[th] Additional Senior CivilJudge and Additional Chief Judicial Magistrate, Vadodara in 7 criminalcases[1] pertaining to the offence under Section 138 of the NegotiableInstruments Act, 1881 (‘the NI Act’) for dishonour of 7 cheques in thesum of Rs. 3 lakhs each, as said to have been drawn by the accused-appellant in favour of the complainant-respondent No. 2. In the impugnedjudgment and order dated 08.01.2018, the High Court has disapprovedthe acquittal of the accused-appellant and, while holding him guilty ofthe offence under Section 138 of the NI Act, has awarded him thepunishment of simple imprisonment for period of 1 year with fine tothe extent of double the amount of cheque (i.e., sum of Rs. 6 lakhs)with default stipulation of further imprisonment for period of 1 year ineach case; and, out of the amount payable as fine, the complainant-respondent No. 2 is ordered to be compensated to the tune of Rs. 5.5.lakhs in each case.

3. Briefly put, the substance of allegations and assertions of thecomplainant-respondent No. 2 in each of the 7 cases aforesaid had beenas follows: He was having his office in Windor Plaza at Alkapuri,Vadodara and had been visiting the shop of his friend Shri Jagdishbhai inNational Plaza in the same locality; the accused-appellant, trader ofedible spices, had his shop near the shop of Shri Jagdishbhai and in duecourse of time, the accused, the complainant and the said Shri Jagdishbhai

1Nos. 44345/2009, 46499/2008, 46254/2008, 48420/2008, 40321/2008, 48631/2008and 46503/2008 respectively.

Abecame good friends. The complainant alleged that after developing suchfriendship, the accused demanded from him sum of Rs. 22,50,000/- asloan for his immediate requirement; and he (the complainant) extendedsuch loan to the accused for short term by collecting money in piecemealfrom his business group. According to the complainant, upon regulardemand for re-payment, the accused gave him cheques of different datesBdrawn on Corporation Bank, Alkapuri Branch, Vadodara and also gavethe acceptance for re-payment on stamp paper. The complainant allegedthat the cheques so issued by the accused, on being presented to theBank for collection, were returned unpaid either for the reason that the“opening balance was insufficient”or for the reason that the “accountCwas closed”. While alleging that the intention of the accused had beenof breach of trust and cheating, the complainant pointed out that he gotserved the notices on the accused after dishonour of the cheques but didnot receive the requisite payment. It is noticed that in some of the cases,the accused-appellant did send his reply, denying the transaction as alleged.D4. With the allegations and assertions aforesaid, the complainant-respondent No. 2 filed the above-mentioned 7 complaint cases againstthe accused-appellant in the months of June to November, 2008. In trial,the complainant examined himself as PW-1 and the said Shri Jagdishbhaias PW-2. The complainant also produced the relevant documentaryevidence including the cheques in question; the Bank returning memosEand intimation letters; the demand notices; the replies wherever sent bythe appellant; and the written acknowledgement on stamp paper bythe accused. The accused was examined under Section 313 of the Codeof Criminal Procedure, 1973 where he asserted that he had no moneytransaction with the complainant; and had neither issued any cheque norFwritten any note for any legal debt in favour of the complainant. Theaccused-appellant, however, asserted that several years in the past, hehad some transaction with the said Shri Jagdishbhai and the chequesand blank stamp paper lying with Shri Jagdishbhai have been fraudulentlymisused to unlawfully recover the money from him. The accused-appellant, however, did not lead any evidence.G

5. After having heard the parties, the Trial Court formulated similarpoints for determination in each of these 7 cases which could be noticedas under[2]:

2The extraction is from the judgment of the Trial Court in Criminal Case No. 46499 ofH2008.

“1. Whether the complainant proves that the accused hasissued and handed over the Cheque bearing No. 763346 ofRs. 3, 00,000/- towards legal due amount from the accountmaintained by him, and upon presenting the said cheque inbank of the complainant for encashment, the same wasreturned back unpaid with endorsement of the bank “Today’sopening balance is insufficient” and thereafter thecomplainant has served demand notice to the accused andthe said notice has been served to the accused even though,the accused has not paid the cheque amount within thestipulated Notice period and thereby the accused hascommitted offence punishable under section 138 of theNegotiable Instrument Act?

2. What order?”

6. After examining the record, the Trial Court found that theaccused had admitted his signature on the cheques and, with referenceto the decision of this Court in the case of Rangappa v. Sri Mohan :(2010) 11 SCC 441, drew the presumption envisaged by Section 139of NI Act.

6.1. However, after having drawn the presumption, the Trial Courtfound several factors in favour of the accused and observed, inter alia,that: (a) there was no documentary evidence to show the source ofincome for advancing the loan to the accused; (b) the complainant failedto record the transaction in the form of receipts, promissory notes oreven kaccha notes; (c) vague and uncertain statement was made by thecomplainant as compared to the statement of his witness-Shri Jagdishbhai;(d)the complainant had no knowledge about the dates and other particularsof such cheques; (e) the witness of complainant was in know of thefacts more than the complainant; (f) the complaint allegedly extendedthe loan to the tune of Rs. 22,50,000/- but the 7 cheques in these caseswere of Rs. 3,00,000/- each and there was no explanation from thecomplainant as regards the remaining Rs. 1,50,000/-; and (g) thesuggestion about washing away of the earlier cheques in rains was alsodoubtful when the complainant’s office was on the 8[th] floor of WindorPlaza.

A6.2 With reference to the aforesaid factors and circumstances,the Trial Court concluded that the accused was successful in bringingrebuttal evidence to the requisite level of preponderance of probabilities;and observed that the complainant had failed to prove, beyond allreasonable doubt, that the cheques were issued in part payment of theloan amount of Rs. 22,50,000/-. Hence, all the 7 complaint cases wereBdismissed by similar but separate judgment and orders dated 09.06.2017while observing as under[3]:-

“19……All these circumstances creates doubt of thecomplainant (sic) as alleged and accused has brought onrecord rebuttable evidence upto to requisite level ie.Preponderance of probabilities and as such consideringsection 5,6,32 and 118 and 139 of N.I. Act complainant failedto prove complaint beyond reasonable doubt that the chequehas been issued for the recoverable debt/liability.

22. Therefore as discussion made herein above thecomplainant failed to prove that the disputed cheque has beenissued by the accused for the part payment of transaction ofRs. 22,50,000/- therefore accused is entitled to get acquittalwho has brought on record the circumstances which rebut theEpresumption under section 118,119, of N.I. Act… (sic)”

7. Against the aforementioned judgment and orders of acquittal,the complainant preferred appeals before the High Court of Gujarat,which have been considered and decided together by the impugnedcommon judgment and order dated 08.01.2018. The High Court observedFthat the presumption under Sections 118 and 139 of the NI Act wasrequired to be drawn that the cheques were issued for consideration anduntil contrary was proved, such presumption would hold good; that thecomplainant had proved legally enforceable debt in the oral as alsodocumentary evidence, including the written acknowledgment by theGaccused on stamp paper; and that except bare denial, nothing was broughton record by the accused to dislodge the proof adduced by thecomplainant.

3 Again, the extraction is from the judgment of the Trial Court in Criminal Case No.46499 of 2008.H

7.1 The High Court observed that if the transaction in questionwas not reflected in the accounts and income-tax returns, that would atbest hold the assesse or lender liable for action under the income-taxlaws but, if the complainant succeeds in showing the lending of amount,the existence of legally enforceable debt cannot be denied. The HighCourt also observed that the issue regarding washing away of the chequesin rain water was of no significance when the accused had accepted hisliability in clear terms. The High Court found that the defence plea ofthe accused that the money was given as hand loan by his friend ShriJagdishbhai got falsified by the version of the said Shri Jagdishbhai, whowas examined as witness on behalf of the complainant. The HighCourt, therefore, set aside the impugned orders and, while convictingthe accused-appellant for the offence under Section 138 of the NI Act,sentenced him in the manner noticed hereinbefore. The High Court,inter alia, observed and held as under:

“24. It is necessary at this stage also to refer to the emphasislaid by the learned counsel appearing for the respondent No.2on the source of the fund which has been lent by the appellant.It has emerged from the detailed examination of the record,as also detailed examination-in-chief as well as cross-examination, that the complainant runs the business. He alsomaintains the books of account and he has his own factoryin the name and style of ‘Ashirwad Enterprise’ andmanufactures plastic. The said factory is situated at Jambusar.Ordinarily, any prudent business person would prefer totransact by cheque while lending money, but it is quite oftennoticed that the cash transactions in the business would allowhuge sum of money as cash, which sometimes are shown inthe books of account as cash on hands or otherwise as amountavailable on books. Assuming that cheque transaction oflending of amount is absent and income-tax returns also donot reflect such amount, that at the best would hold theassessee or lender liable for action under the Income-tax laws.However, otherwise, if he succeeds in showing lending of suchamount, both by oral evidence of himself and his friend, onwhom even respondent No.2 relies upon and from the writingof the respondent No.2 given separately along with seven

cheques signed by him, what possible reasons could weighwith the Court to deny the existence of legally enforceabledebt in such glaring circumstances.

25. Considering the fact that the complainant maintains hisbooks of account, coupled with the fact that the respondentNo.2 had merely refuted on flimsy ground of his havingtransacted with witness Jagdishbhai and not with thecomplainant, has failed to discharge the burden which hadshifted upon him. It is to be noted that the respondent No.2has admitted his signature on the impugned cheque. At nopoint of time, the cheque has been disputed……Once this factis acknowledged that the signature on the cheque is that ofthe respondent No. 2-accused, section 139 of the NegotiableInstruments Act would mandate the presumption that thecheque concerns legally enforceable debt or liability. Ofcourse, this presumption is in the nature of rebuttal and onusis on the accused thereafter to raise probable defence.

25.1 As can be noted from the chronology of events and thematerial that has been placed before this Court that thedefence raised by the accused is not at all probable. Therespondent No.2-accused states that the money was given asa hand loan by his friend Jagdishbhai and not the appellant,also gets falsified completely by the version of Jagdishbhai.It appears that in case of all the seven cheques when noticeswere given prior to the filing of the complaint, he has chosennot to reply to four of the notices. Either on account ofinsufficiency of the funds or because he has closed accountthat the cheques could not be realized. All these circumstancescumulatively lead this Court to conclude that the appellantsucceeded in proving the legally enforceable debt and noprobable defence for rebutting the statutory presumption israised by the respondent No.2.

25.2 Initial presumption as contemplated under section 139of the Negotiable Instruments Act, when the proof of lendingof the money and acceptance of the signatures on the cheques,shall need to be raised by the Court in favour of the appellant.

28. ………. Reasonably, when the appellant had proved thelegally enforceable debt, not only through his own evidence,but also through the evidence of his friend Jagdishbhai andalso other contemporaneous record, more particularly, thedocument at Exhibit 24, which is writing by which therespondent No.2 clearly indicates and accepts his liability tothe tune of Rs. 22.50 lakh. Thus, the burden had shifted uponthe respondent No. 2. The presumption which was needed tobe drawn by the Court under section 118 of the NegotiableInstruments Act would oblige the Court to presume that thecheque had been issued for consideration and until contraryis proved, such presumption would hold the ground. Exceptthe bare denial, nothing has been found to come on record todislodge the positive proof that has been adduced by theappellant.29. In the opinion of this Court, the entire argument that therainy water could not have washed away the cheques, palesinto insignificance and is not argument worth consideration,more particularly, when the respondent-accused in no unclearterms had accepted his liability of his having accepted theamount of Rs. 22.50 lakh from the complainant and it alsodeclared the issuance of seven cheques of particular datestowards such legally enforceable debt. If it was anunderstanding between the parties qua issuance of freshcheques, with an ostensible reason of old cheques havingwashed away, those are the non-issues. This Court cannot beoblivious of the fact that section 138 of the NegotiableInstruments Act has been made penal provision not only forthe cheques to give acceptability in the transaction, but it isthe economic blood-line of the country and, therefore, thelaw makers have made the special rules of evidence byintroducing sections 118 and 139 of the NegotiableInstruments Act.

30. The trial Court has committed serious error by notdischarging its obligation of recognizing the evidentiary valueand not appreciating the positive evidence which led to the

[2019] 5 S.C.R.

Areasonable proof of legally enforceable debt existing on theside of the original complainant.”

8. Assailing the judgment and order so passed by the High Court,learned counsel for the accused-appellant has contended that theimpugned judgment is contrary to the principles laid down in the case ofBArulvelu and Anr. v. State represented by Public Prosecutor & Anr.:(2009) 10 SCC 206, particularly when the High Court has set asidethe considered judgment and orders of the Trial Court without pointingout any perversity therein. The learned counsel has argued, with referenceto the decisions in M.S. Narayana Menon alias Mani v. State of Keralaand Anr: (2006) 6 SCC 39 and Kumar Exports v. Sharma Carpets:C(2009) 2 SCC 519, that the High Court has failed to appreciate thesettled principle of law that the accused is only required to show probabledefence to be acquitted of the charges under Section 138 of the NI Act.The learned counsel has referred to the reasons assigned by the TrialCourt to acquit the accused-appellant and has submitted that contradictoryDstatements have been made by the complainant and the witness; that noclear and cogent evidence has been brought on record to prove thesource of funds for advancing any loan by the complainant; that admittedly,the complainant did not have the amount of Rs. 22,50,000/- and thesame was arranged through his friends and relatives but he madevacillating statement in that regard and none of such relatives or friendsEwas examined as witness; that the witness for the complainant had moreknowledge about the transaction than the complainant; that thecomplainant appeared to have rather no knowledge regarding thepayments, funds and the period of transaction; and that there was noexplanation as to how the complainant was claiming Rs. 22,50,000/- asFthe debt, when the sum total of the instalments (cheques) comes toRs. 21,00,000/- only. The learned counsel would also argue thatcomplainant has heavily relied on the stamp paper dated 21.03.2007 butthen, admittedly, the complainant had not signed on the said stamp paper;and this document, neither notarised nor registered anywhere and onlybearing the signatures of the appellant and of the said Shri Jagdishbhai,Gis not of any evidentiary value for the case of the complainant. Accordingto the learned counsel, the accused-appellant has established his bonafidedefence that he had financial transaction with Shri Jagdishbhai in thepast; that he gave 7 blank cheques to Shri Jagdishbhai and signed on astamp paper as security against such transaction; and that such cheques

and stamp paper were sought to be misused by the complainant. Thelearned counsel has contended that in the given circumstances, thejudgment and orders of the Trial Court acquitting the accused-appellantof the offence under Section 138 of the NI Act deserve to be restoredand the impugned judgment and order dated 08.01.2018 deserves to beset aside. The learned counsel would also submit in the alternative thatin any case, the punishment as awarded in this case is much on thehigher side and deserves to be reduced.

9. Per contra, the learned counsel for the complainant-respondentNo. 2 has duly supported the impugned judgment and has submitted thatthe accused-appellant has only put forward vague and unsure defencethat has no basis or support and stands falsified from the material onrecord. The learned counsel has submitted that not only the presumptionunder Section 139 NI Act has not been dislodged, in fact, the case of thecomplainant is fortified in view of the unequivocal acknowledgementand undertaking stated by the accused-appellant on the stamp paper;and in the given circumstances, the High Court has rightly convicted himfor the offence under Section 138 of the NI Act.

10. Having given anxious consideration to the rival submissionsand having examined the record, we are clearly of the view that asregards conviction of the accused-appellant for the offence under Section138 NI Act, the impugned judgment and order dated 08.01.2018 doesnot call for any interference but, on the facts and in the circumstancesof this case, the punishment as awarded by the High Court deserves tobe modified.

11. According to the learned counsel for the accused-appellant,the impugned judgment is contrary to the principles laid down by thisCourt in the case of Arulvelu (supra) because the High Court has setaside the judgment of the Trial Court without pointing out any perversitytherein. The said case of Arulvelu (supra) related to offences underSections 304-B and 498-A IPC. Therein, on the scope of the powers ofAppellate Court in an appeal against acquittal, this Court observed asfollows:

“36. Carefully scrutiny of all these judgments lead to thedefinite conclusion that the appellate court should be veryslow in setting aside judgment of acquittal particularly in

Acase where two views are possible. The trial court judgmentcannot be set aside because the appellate court’s view is moreprobable. The appellate court would not be justified in settingaside the trial court judgment unless it arrives at clearfinding on marshalling the entire evidence on record that thejudgment of the trial court is either perverse or whollyBunsustainable in law.”

11.1 The principles aforesaid are not of much debate. In otherwords, ordinarily, the Appellate Court will not be upsetting the judgmentof acquittal, if the view taken by Trial Court is one of the possible viewsof matter and unless the Appellate Court arrives at clear finding thatCthe judgment of the Trial Court is perverse, i.e., not supported by evidenceon record or contrary to what is regarded as normal or reasonable; or iswholly unsustainable in law. Such general restrictions are essentially toremind the Appellate Court that an accused is presumed to be innocentunless proved guilty beyond reasonable doubt and judgment of acquittalDfurther strengthens such presumption in favour of the accused. However,such restrictions need to be visualised in the context of the particularmatter before the Appellate Court and the nature of inquiry therein. Thesame rule with same rigour cannot be applied in matter relating to theoffence under Section 138 of the NI Act, particularly where presumptionis drawn that the holder has received the cheque for the discharge, whollyEor in part, of any debt or liability. Of course, the accused is entitled tobring on record the relevant material to rebut such presumption and toshow that preponderance of probabilities are in favour of his defencebut while examining if the accused has brought about probable defenceso as to rebut the presumption, the Appellate Court is certainly entitled

Fto examine the evidence on record in order to find if preponderanceindeed leans in favour of the accused.

12. For determination of the point as to whether the High Courtwas justified in reversing the judgment and orders of the Trial Court andconvicting the appellant for the offence under Section 138 of the NI Act,Gthe basic questionsto be addressed to are two-fold:as to whether thecomplainant-respondent No. 2 had established the ingredients of Sections118 and 139 of the NI Act, so as to justify drawing of the presumptionenvisaged therein; and if so, as to whether the accused-appellant hadbeen able to displace such presumption and to establish probabledefence whereby, the onus would again shift to the complainant?H

13. We may usefully take note of the provisions contained inSections 118 and 139, being the special rules of evidence applicable tothe case as follows[4]:

“118. Presumption as to negotiable instruments.—— Until thecontrary is proved, the following presumptions shall bemade:—

(a) of consideration——that every negotiable instrument was madeor drawn for consideration, and that every such instrument,when it has been accepted, indorsed, negotiated or trans-ferred, was accepted, indorsed, negotiated or transferred forconsideration;

(b) as to date—that every negotiable instrument bearing datewas made or drawn on such date;

(c) as to time of acceptance——that every accepted bill of ex-change was accepted within reasonable time after its dateand before its maturity;

(d) as to time of transfer——that every transfer of negotiableinstrument was made before its maturity;

(e) as to order of indorsements——that the indorsements appear-ing upon negotiable instrument were made in the order inwhich they appear thereon;

(f) as to stamps— that lost promissory note, bill of exchange orcheque was duly stamped;

(g) that holder is holder in due course——that the holder of anegotiable instrument is holder in due course;

4The principal and charging part of Section 138 NI Act may also be extracted for readyreference as follows:

“138 Dishonour of cheque for insufficiency, etc., of funds in the account. ——Where any cheque drawn by person on an account maintained by him with bankerfor payment of any amount of money to another person from out of that account forthe discharge, in whole or in part, of any debt or other liability, is returned by the bankGunpaid, either because of the amount of money standing to the credit of that account isinsufficient to honour the cheque or that it exceeds the amount arranged to be paid fromthat account by an agreement made with that bank, such person shall be deemed to havecommitted an offence and shall, without prejudice to any other provisions of this Act,be punished with imprisonment for [a term which may be extended to two years], orwith fine which may extend to twice the amount of the cheque, or with both:****** ***”H

Provided that, where the instrument has been obtained fromits lawful owner, or from any person in lawful custody thereof,by means of an offence or fraud, or has been obtained fromthe maker or acceptor thereof by means of an offence offraud, or for unlawful consideration, the burden of provingthat the holder is holder in due course lies upon him.”

“139. Presumption in favour of holder —— It shall bepresumed, unless the contrary is proved, that the holder is acheque received the cheque of the nature referred to in section138 for the discharge, in whole or in part, if any debt orother liability.”

14. So far the question of existence of basic ingredients for drawingof presumption under Sections 118 and 139 the NI Act is concerned,apparent it is that the accused-appellant could not deny his signature onthe cheques in question that had been drawn in favour of the complainanton bank account maintained by the accused for sum of Rs. 3 lakhsDeach. The said cheques were presented to the Bank concerned withinthe period of their validity and were returned unpaid for the reason ofeither the balance being insufficient or the account being closed. All thebasic ingredients of Section 138 as also of Sections 118 and 139 areapparent on the face of the record. The Trial Court had also consciouslyEtaken note of these facts and had drawn the requisite presumption.Therefore, it is required to be presumed that the cheques in questionwere drawn for consideration and the holder of the cheques i.e., thecomplainant received the same in discharge of an existing debt. Theonus, therefore, shifts on the accused-appellant to establish probabledefence so as to rebut such presumption.F

15. In Rangappa v. Sri Mohan : (2010) 11 SCC 441, this Courthas reiterated and summarised the principles relating to presumptionsunder Sections 118 and 139 of the NI Act and rebuttal thereof in thefollowing:-

“26. In the light of these extracts, we are in agreement withthe respondent claimant that the presumption mandated bySection 139 of the Act does indeed include the existence of alegally enforceable debt or liability. To that extent, theimpugned observations in Krishna Janardhan Bhat may not becorrect. However, this does not in any way cast doubt on the

correctness of the decision in that case since it is based onthe specific facts and circumstances therein. As noted in thecitations, this is of course in the nature of rebuttalpresumption and it is open to the accused to raise defencewherein the existence of legally enforceable debt or liabilitycan be contested. However, there can be no doubt that thereis an initial presumption which favours the complainant.

27. Section 139 of the Act is an example of reverse onusclause that has been included in furtherance of the legislativeobjective of improving the credibility of negotiableinstruments. While Section 138 of the Act specifies strongcriminal remedy in relation to the dishonour of cheques, therebuttable presumption under Section 139 is device toprevent undue delay in the course of litigation. However, itmust be remembered that the offence made punishable bySection 138 can be better described as regulatory offencesince the bouncing of cheque is largely in the nature of acivil wrong whose impact is usually confined to the privateparties involved in commercial transactions. In such ascenario, the test of proportionality should guide theconstruction and interpretation of reverse onus clauses andthe defendant-accused cannot be expected to discharge anunduly high standard of proof.

28. In the absence of compelling justifications, reverse onusclauses usually impose an evidentiary burden and not apersuasive burden. Keeping this in view, it is settled positionthat when an accused has to rebut the presumption underSection 139, the standard of proof for doing so is that of“preponderance of probabilities”. Therefore, if the accusedis able to raise probable defence which creates doubts aboutthe existence of legally enforceable debt or liability, theprosecution can fail. As clarified in the citations, the accusedcan rely on the materials submitted by the complainant in orderto raise such defence and it is conceivable that in somecases the accused may not need to adduce evidence of his/her own.”

16. On the aspects relating to preponderance of probabilities, theaccused has to bring on record such facts and such circumstances which

Amay lead the Court to conclude either that the consideration did not existor that its non-existence was so probable that prudent man would,under the circumstances of the case, act upon the plea that theconsideration did not exist. This Court has, time and again, emphasizedthat though there may not be sufficient negative evidence which couldbe brought on record by the accused to discharge his burden, yet mereBdenial would not fulfil the requirements of rebuttal as envisaged underSection 118 and 139 of the NI Act. This court stated the principles in thecase of Kumar Exports (supra) as follows:

“20. The accused in trial under Section 138 of the Act hastwo options. He can either show that consideration and debtdid not exist or that under the particular circumstances of thecase the non-existence of consideration and debt is soprobable that prudent man ought to suppose that noconsideration and debt existed. To rebut the statutorypresumptions an accused is not expected to prove his defencebeyond reasonable doubt as is expected of the complainant

in criminal trial. The accused may adduce direct evidenceto prove that the note in question was not supported byconsideration and that there was no debt or liability to bedischarged by him. However, the court need not insist in everycase that the accused should disprove the non-existence ofconsideration and debt by leading direct evidence becausethe existence of negative evidence is neither possible norcontemplated. At the same time, it is clear that bare denial ofthe passing of the consideration and existence of debt,apparently would not serve the purpose of the accused.Something which is probable has to be brought on record forgetting the burden of proof shifted to the complainant. Todisprove the presumptions, the accused should bring on recordsuch facts and circumstances, upon consideration of which,the court may either believe that the consideration and debtdid not exist or their non-existence was so probable that aprudent man would under the circumstances of the case, actupon the plea that they did not exist. Apart from adducingdirect evidence to prove that the note in question was notsupported by consideration or that he had not incurred anydebt or liability, the accused may also rely upon circumstantial

evidence and if the circumstances so relied upon arecompelling, the burden may likewise shift again on to thecomplainant. The accused may also rely upon presumptionsof fact, for instance, those mentioned in Section 114 of theEvidence Act to rebut the presumptions arising under Sections118 and 139.

21. The accused has also an option to prove the non-existenceof consideration and debt or liability either by letting inevidence or in some clear and exceptional cases, from thecase set out by the complainant, that is, the averments in thecomplaint, the case set out in the statutory notice and evidenceadduced by the complainant during the trial. Once suchrebuttal evidence is adduced and accepted by the court,having regard to all the circumstances of the case and thepreponderance of probabilities, the evidential burden shiftsback to the complainant and, therefore, the presumptionsunder Sections 118 and 139 of the Act will not again come tothe complainant’s rescue.”

17. In the case at hand, even after purportedly drawing thepresumption under Section 139 of the NI Act, the Trial Court proceededto question the want of evidence on the part of the complainant as regardsthe source of funds for advancing loan to the accused and want ofexamination of relevant witnesses who allegedly extended him moneyfor advancing it to the accused. This approach of the Trial Court hadbeen at variance with the principles of presumption in law. After suchpresumption, the onus shifted to the accused and unless the accused haddischarged the onus by bringing on record such facts and circumstancesas to show the preponderance of probabilities tilting in his favour, anydoubt on the complainant’s case could not have been raised for want ofevidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whetherthe accused-appellant has brought on record such facts/material/circumstances which could be of reasonably probable defence.

18. In order to discharge his burden, the accused put forward thedefence that in fact, he had had the monetary transaction with the saidShri Jagdishbhai and not with the complainant. In view of such plea ofthe accused-appellant, the question for consideration is as to whether

Athe accused-appellant has shown reasonable probability of existenceof any transaction with Shri Jagdishbhai? In this regard, significant it isto notice that apart from making certain suggestions in the cross-examination, the accused- appellant has not adduced any documentaryevidence to satisfy even primarily that there had been some monetarytransaction of himself with Shri Jagdishbhai. Of course, one of theBallegations of the appellant is that the said stamp paper was given to ShriJagdishbhai and another factor relied upon is that Shri Jagdishbhai hadsigned on the stamp paper in question and not the complainant.

18.1 We have examined the statement of Shri Jagdishbhai as alsothe said writing on stamp papers and are unable to find any substance inCthe suggestions made on behalf of the accused-appellant.

18.2 The said witness Shri Jagdishbhai, while pointing out hisacquaintance and friendship with the appellant as also with therespondent, asserted in his examination-in-chief, inter alia, as under:

D“Accused when he comes to our shop where the complainantin the matter Shashimohan also be present that in both thecomplainant and accused being our friends, were madeacquaintance with each other. The accused had necessity ofmoney in his business, in my presence, had demandedRs.22,50,000/- (Rupees twenty two lacs fifty thousandly) onEtemporary basis. And thereafter, the complainant from hisfamily members by taking in piecemeal had given to theaccused in my presence. Thereafter, on demanding the moneyby the complainant, the accused had given seven (7) chequesto the complainant in our presence but such cheques beingFwashed out in rainy water and on informing me by thecomplainant I had informed to the accused. Thereafter,Rohitbhai had given other seven (7) cheques to thecomplainant in my presence and the deed was executed onRs. 100/- stamp paper in there is my signature.”

G18.3This witness was cross-examined on various aspectsas regards the particulars in the writing on the stamp paper and the dateand time of the transactions. In regard to the defence as put in thecross-examination, the witness stated as under:

“I have got shop in National Plaza but in rain no water logginghas taken place. It is not true that there had been no financialH

dealings between me and the accused today. It is not true thatI had given rupees ten lacs to the accused Rohitbhai ontemporary basis. It is not true that for the amount given to theaccused, I had taken seven blank duly cheques also blankstamp paper without signature. It is not true that there wasquarrel between me and the accused in the matter of paymentof interest. It is not true that even after the payment of Rs. tenlacs and the huge amount of the interest in the matter ofinterest quarrel was made. It is not true that due to the reasonof quarrel with the accused, in the cheques of the accusedlying with me by making obstinate writing has filed the falsecomplaint through Shashimohan Goyanka. It is not true thatno financial dealings have taken place between thecomplainant and the accused. therefore I also the complainantboth at the time of evidence the accused at what place, onwhat date at what time, the amount taken has not been ableto make clearly. (sic) It is not true that the blank stamp paperduly signed were lying in which obstinate writing has beenmade therefore the same has not been registered through subregistrar. It is not true that the dealings have been madebetween me and accused therefore there is my signature andthe signature of the accused and the complainant has notsigned. It is not true that any types of dealings between theaccused and the complainant having not been done in mypresence therefore in my statement no clarification has beengiven. It is not true that the accused in my presence asmentioned in the complaint any cheque has not been given. Itis not true that I in collusion with the complainant to usurpthe false amount the false complaint has been filed throughShashimohan Goyanka. It is not true that in support of thecomplaint of Shashimohan Goyanka is giving falsestatement.”

18.4 The statement of Shri Jagdishbhai does not make out anycase in favour of the accused-appellant. It is difficult to say that bymerely putting the suggestion about the alleged dealing to Shri Jagdishbhai,the accused-appellant has been able to discharge his burden of bringingon record such material which could tilt the preponderance of probabilitiesin his favour.

A18.5 The acknowledgement on the stamp paper as executed bythe appellant on 21.03.2007 had been marked with different exhibitnumbers in these 7 cases. In Complaint Case No. 46499 of 2008, thesame is marked as Ex. 54 and reads as under :

“Today the executor I Rohit Patel Ranchhodray Masala is aBpartner. Due to the financial difficulties having been arised,I have taken Rs.22,500,000/- (Rupees twenty two thousandfifty thousand only- sic) from my group which are to be paidto Shashimohan Goyanka.

With reference to that today I have given seven (7) chequesCof Corporation Bank, Alkapuri Branch bearing No. 763346to 762252 amounting to Rs. 22,50,000/- (Rupees twenty twolacs fifty thousand only) Dates : (1) 01/4/08, (2) 01/05/08 (3)01/07/08, (4) 01/08/08 (5) 01/10/08 (6) 01/11/08 (7) 01/12/08 the account of which is 40007.

DEarliest these cheques were given but due to rainy waterlogging the said cheques having been washed out (7) chequeshave again been given which is acceptable to me.”

18.6 The fact of the matter remains that the appellant could notdeny his signatures on the said writing but attempted to suggest that hisEsignatures were available on the blank stamp paper with Shri Jagdishbhai.This suggestion is too remote and too uncertain to be accepted. Nocogent reason is available for the appellant signing blank stamp paper.It is also indisputable that the cheques as mentioned therein with all therelevant particulars like cheque numbers, name of Bank and accountnumber are of the same cheques which form the subject matter of theseFcomplaint cases. The said document bears the date 21.03.2007 and thecheques were post-dated, starting from 01.04.2008 and ending at01.12.2008. There appears absolutely no reason to discard this writingfrom consideration.

18.7 One of the factors highlighted on behalf of the appellant isGthat the said writing does not bear the signature of the complainant butand instead, it bears the signatures of said Shri Jagdishbhai. We findnothing unusual or objectionable if the said writing does not bear thesignatures of the complainant. The said writing is not in the nature ofany bi partite agreement to be signed by the parties thereto. It had been

writing in the nature of acknowledgement by the accused-appellantabout existence of debt; about his liability to repay the same to thecomplainant; about his having issued seven post-dated cheques; aboutthe particulars of such cheques; and about the fact that the chequesgiven earlier had washed away in the rain water logging. Obviously, thiswriting, to be worth its evidentially value, had to bear the signatures ofthe accused, which it does. It is not unusual to have witness to such adocument so as to add to its authenticity; and, in the given status andrelationship of the parties, Shri Jagdishbhai would have been the bestwitness for the purpose. His signatures on this document, therefore,occur as being the witness thereto. This document cannot be ruled outof consideration and existing this writing, the preponderance ofprobabilities lean heavily against the accused-appellant.

19. Hereinabove, we have examined in detail the findings of theTrial Court and those of the High Court and have no hesitation inconcluding that the present one was clearly case where the decisionof the Trial Court suffered from perversity and fundamental error ofapproach; and the High Court was justified in reversing the judgment ofthe Trial Court. The observations of the Trial Court that there was nodocumentary evidence to show the source of funds with the respondentto advance the loan, or that the respondent did not record the transactionin the form of receipt of even kachcha notes, or that there wereinconsistencies in the statement of the complainant and his witness, orthat the witness of the complaint was more in know of facts etc. wouldhave been relevant if the matter was to be examined with reference tothe onus on the complaint to prove his case beyond reasonable doubt.These considerations and observations do not stand in conformity with

the presumption existing in favour of the complainant by virtue of Sections118 and 139 of the NI Act. Needless to reiterate that the result of suchpresumption is that existence of legally enforceable debt is to bepresumed in favour of the complainant. When such presumption isdrawn, the factors relating to the want of documentary evidence in the

form of receipts or accounts or want of evidence as regards sourceoffunds were not of relevant consideration while examining if the accusedhas been able to rebut the presumption or not. The other observations asregards any variance in the statement of complainant and witness; orwant of knowledge about dates and other particulars of the cheques; orwashing away of the earlier cheques in the rains though the office of the

Acomplainant being on the 8[th] floor had also been of irrelevant factors forconsideration of probable defence of the appellant. Similarly, the factorthat the complainant alleged the loan amount to be Rs. 22,50,000/- andseven cheques being of Rs. 3,00,000/- each leading to deficit of Rs.1,50,000/-, is not even worth consideration for the purpose of thedetermination of real questions involved in the matter. May be, if theBtotal amount of cheques exceeded the alleged amount of loan, slenderdoubt might have arisen, but, in the present matter, the total amount of 7cheques is lesser than the amount of loan. Significantly, the specificamount of loan (to the tune of Rs. 22,50,000/-) was distinctly stated bythe accused-appellant in the aforesaid acknowledgment dated 21.03.2017.

20. On perusing the order of the Trial Court, it is noticed that theTrial Court proceeded to pass the order of acquittal on the mere groundof ‘creation of doubt’. We are of the considered view that the TrialCourt appears to have proceeded on misplaced assumption that bymere denial or mere creation of doubt, the appellant had successfullyDrebutted the presumption as envisaged by Section 139 of the NI Act. Inthe scheme of the NI Act, mere creation of doubt is not sufficient.

21. The result of discussion in the foregoing paragraphs is that themajor considerations on which the Trial Court chose to proceed clearlyshow its fundamental error of approach where, even after drawing theEpresumption, it had proceeded as if the complainant was to prove hiscase beyond reasonable doubt. Such being the fundamental flaw on thepart of the Trial Court, the High Court cannot be said to have actedillegally or having exceeded its jurisdiction in reversing the judgment ofacquittal. As noticed hereinabove, in the present matter, the High Courthas conscientiously and carefully taken into consideration the views ofFthe Trial Court and after examining the evidence on record as whole,found that the findings of the Trial Court are vitiated by perversity. Hence,interference by the High Court was inevitable; rather had to be madefor just and proper decision of the matter.

22. For what has been discussed hereinabove, the findings of theGHigh Court convicting the accused-appellant for offence under Section138 of the NI Act deserves to be, and are, confirmed.

23. Coming to the question of punishment for the offence aforesaid,as noticed, the High Court has awarded the punishment of simpleimprisonment for period of one year together with fine to the extent ofHdouble the amount of cheque (i.e., sum of Rs. 6 lakhs) with default

stipulation of further imprisonment for period of one year in each case;and, out of the amount payable as fine, the complainant-respondent No.2 is ordered to be compensated to the tune of Rs. 5.5 lakhs in each case.In the totality of the circumstances of this case and looking to the natureof offence which is regulatory in nature, while we find that the punishmentas regards monetary terms calls for no interference but then, the sentenceof imprisonment deserve to be modified.

23.1 In the singular and peculiar circumstances of this case, wherethe matters relating to 7 cheques issued by the appellant in favour ofrespondent No. 2 for sum of Rs. 3 lakhs each are being consideredtogether; and the appellant is being penalised with double the amount ofcheques in each case i.e., in all sum of Rs. 42,00,000/-, in our view, theappellant deserves to be extended another chance to mend himself bymaking payment of fine, of course, with the stipulation that in case ofdefault in payment of the amount of fine, he would undergo simpleimprisonment for period of one year.

24. Therefore, this appeal is partly allowed in the following terms:The common judgment and order dated 08.01.2018 in R/Criminal AppealNo. 1187/2017 connected with R/Criminal Appeal Nos. 1191/2017 to1196/2017 by the High Court of Gujarat at Ahmedabad is maintained asregards conviction of the accused-appellant for the offence under Section138 of the Negotiable Instruments Act, 1881 for dishonour of 7 chequesin the sum of Rs. 3 lakhs each, as drawn by him in favour of thecomplainant-respondent No. 2; however, the sentence is modified in themanner that in each of these 7 cases, the accused-appellant shall payfine to the extent of double the amount of each cheque (i.e., sum ofRs. 6 lakhs in each case) within 2 months from today with the stipulationthat in case of default in payment of fine, the accused-appellant shallundergo simple imprisonment for period of one year. On recovery ofthe amount of fine, the complainant-respondent No. 2 shall becompensated to the tune of Rs. 5.5 lakhs in each case. In the event ofimprisonment for default in payment of fine, the sentences in all the 7cases shall run concurrently.

25. The Trial Court shall take steps for enforcement of thisjudgment forthwith.

Divya Pandey

Appeal partly allowed.