BIR SINGHversusMUKESH KUMAR

24               SUPREME COURT
                         [2019] 2REPORTS
                                 S.C.R. 24               [2019] 2 S.C.R.


A                                BIR SINGH
                                      v.
                             MUKESH KUMAR
                   (Criminal Appeal Nos. 230-231 of 2019)
B                           FEBRUARY 06, 2019
             [R. BANUMATHI AND INDIRA BANERJEE, JJ.]
            Negotiable Instruments Act, 1881:
            s.138 and 139 – Dishonour of cheque for insufficient funds
     – Conviction by trial Court as well as appellate court – In Revision,
C
     High Court reversing the concurrent factual finding of courts below
     and acquitting the accused holding that heavy burden was on the
     complainant to prove that blank cheque was given to him towards
     repayment of the loan which he had advanced to the accused – On
     appeal, Supreme Court held: Section 139 introduces an exception
D    to the general rule as to the burden of proof and shifts the onus on
     the accused i.e drawer of cheque – Section 139 is a presumption of
     law as distinguished from presumption of facts – Presumption
     contemplated u/s. 139 is rebuttable presumption – A reading of ss.
     20, 87 and 139 makes it amply clear that a person who signs the
     cheque and makes it over to the payee remains liable unless he
E
     adduces evidence to rebut the presumption – It was not the case of
     the accused that the cheque was signed under threat or coercion or
     that the cheque was stolen – Existence of fiduciary relationship
     between the payee of the cheque and its drawer, would not disentitle
     the payee to the benefit of presumption u/s. 139 in the absence of
F    evidence of exercise of undue influence or coercion – High Court
     ought not have acquitted the accused – Conviction affirmed –
     Evidence – Presumption.
            s.138 – Object of – Held: Object of s.138 is to infuse
     credibility to negotiable instruments and to encourage and promote
G    their use.
            Chapter XVII – Object of – Held: The object of Chapter XVII
     is both punitive as also compensatory and restitutive – It provides a
     single forum and single proceeding for enforcement of criminal
     liability and for enforcement of civil liability.
H
                                      24
                 BIR SINGH v. MUKESH KUMAR                                25


      Evidence:                                                           A
      Presumption – Presumption of innocence is a human right –
However, the guilt may be established by recourse to presumptions
in law and presumptions in facts unless the accused adduces
evidence showing the reasonable possibility of non-existence of
presumed facts.                                                           B
      Code of Criminal Procedure, 1973:
      Revisional jurisdiction – Scope of – Held: In exercise of
Revisional jurisdiction, High Court cannot upset concurrent factual
findings, in absence of perversity – It is not for the Revisional Court
                                                                          C
to re-analyse and re-interpret the evidence on record.
      Constitution of India:
       Art. 136 – Jurisdiction under – Exercise of – In appeal against
acquittal – Held: If two views are possible, the Court in exercise of
jurisdiction u/Art.136 would ordinarily not interfere with judgment       D
of acquittal.
      Precedent:
      A judgment is a precedent for the issue which is raised and
decided – What is binding on all courts is what Supreme Court says
                                                                          E
u/Art. 141 of the Constitution and not what it does u/Art. 142 –
Constitution of India – Arts. 141 and 142.
      Allowing the appeals, the Court
      HELD: 1.1 The Trial Court and the Appellate Court arrived
at the specific concurrent factual finding that the cheque had            F
admittedly been signed by the respondent-accused. The Trial
Court and the Appellate Court rejected the plea of the respondent-
accused that the appellant-complainant had misused a blank
signed cheque made over by the respondent-accused to the
appellant-complainant for deposit of Income Tax, in view of the
                                                                          G
admission of the respondent-accused that taxes were paid in cash
for which the appellant-complainant used to take payment from
the respondent in cash. [Para 18][34-G-H, 35-A]


                                                                          H
26               SUPREME COURT REPORTS                 [2019] 2 S.C.R.


A           1.2 In exercise of revisional jurisdiction under Section 482
     of the Criminal Procedure Code, the High Court does not, in the
     absence of perversity, upset concurrent factual findings. It is not
     for the Revisional Court to re-analyse and re-interpret the
     evidence on record. It is a well established principle of law that
     the Revisional Court will not interfere even if a wrong order is
B
     passed by a court having jurisdiction, in the absence of a
     jurisdictional error. [Paras 19 and 20][35-B-C]
            Southern Sales and Services and Others v. Sauermilch
            Design and Handels GMBH (2008) 14 SCC 457 :
            [2008] 14 SCR 130 – relied on.
C           2.1 The object of Chapter XVII of the Negotiable
     Instruments Act is both punitive as also compensatory and
     restitutive. It provides a single forum and single proceeding for
     enforcement of criminal liability by reason of dishonour of cheque
     and for enforcement of the civil liability for realization of the
D    cheque amount, thereby obviating the need for the creditor to
     move two different fora for relief. [Para 28][37-C]
            2.2 Section 139 of Negotiable Instruments Act, mandates
     that unless the contrary is proved, it is to be presumed 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
E
     or other liability. The presumption contemplated under Section
     139 of the Negotiable Instruments 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. Section 139 introduces an exception to
F    the general rule as to the burden of proof and shifts the onus on
     the accused. The presumption under Section 139 of the
     Negotiable Instruments 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
G    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. Presumption of innocence is undoubtedly a
     human right. However the guilt may be established by
H    recourse to presumptions in law and presumptions in facts.
     [Paras 21, 23 and 24][35-D-E, G, 36-A-C]
                BIR SINGH v. MUKESH KUMAR                               27


      2.3 The onus to rebut the presumption under Section 139           A
that the cheque has been issued in discharge of a debt or liability
is on the accused and the fact that the cheque might be post
dated does not absolve the drawer of a cheque of the penal
consequences of Section 138 of the Negotiable Instruments Act.
A meaningful reading of the provisions of the Negotiable
                                                                        B
Instruments Act including, in particular, Sections 20, 87 and 139,
makes it amply clear that a person who signs a cheque and makes
it over to the 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. It is immaterial
that the cheque may have been filled in by any person other than        C
the drawer, if the cheque is duly signed by the drawer. If the
cheque is otherwise valid, the penal provisions of Section 138
would be attracted. [Paras 36 and 37][38-G-H, 39-A-C]
      2.4 If a signed blank cheque is voluntarily presented to a
payee, towards some payment, the payee may fill up the amount           D
and other particulars. This in itself would not invalidate the cheque
and would attract presumption under Section 139 of the
Negotiable Instruments Act. The onus would still be on the
accused to prove that the cheque was not in discharge of a debt
or liability by adducing evidence. [Paras 38 and 40][39-C-D, E]
      2.5 It is not the case of the respondent-accused that he          E
either signed the cheque or parted with it under any threat or
coercion. Nor is it the case of the respondent-accused that the
unfilled signed cheque had been stolen. The existence of a
fiduciary relationship between the payee of a cheque and its
drawer, would not disentitle the payee to the benefit of the            F
presumption under Section 139 of the Negotiable Instruments
Act, in the absence of evidence of exercise of undue influence or
coercion. [Para 39][39-D-E]
      2.6 The High Court ought not to have acquitted the
respondent-accused of the charge under Section 138 of the
                                                                        G
Negotiable Instruments Act. The conviction of the respondent
under Section 138 of the Negotiable Instruments Act is confirmed.
However, the respondent-accused is sentenced only to fine, which
is enhanced to Rs.16 lakhs and shall be paid as compensation to
the appellant-complainant. [Paras 42 and 44][40-C, E]
                                                                        H
28               SUPREME COURT REPORTS                 [2019] 2 S.C.R.


A          Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC
           16 : [2001] 3 SCR 900; State of Madras v. Vaidyanatha
           Iyer AIR 1958 SC 61 : 1958 SCR 580; Ranjitsing
           Brahmajeetsing Sharma v. State of Maharashtra and
           Anr (2005) 5 SCC 294 : [ 2005] 3 SCR 345; Rajesh
           Ranjan Yadav @ Pappu Yadav v. CBI through its
B
           Director (2007) 1 SCC 70 : [2006] 9 Suppl. SCR 40;
           Laxmi Dyechem v. State of Gujarat & Ors. (2012) 13
            SCC 375 : [2012] 11 SCR 466; Kumar Exports v.
            Sharma Carpets (2009) 2 SCC 513 : [2008] 17
            SCR 572; K.N. Beena v. Muniyappan and Another
C           (2001) 8 SCC 458 : [2001] 4 Suppl. SCR 374 ;
           R.Vijayan v. Baby and Another (2012) 1 SCC 260 :
            [2012] 14 SCR 712 – relied on.
           Raj Kumar Khurana v. State of (NCT of Delhi) & Anr.
            (2009) 6 SCC 72 : [2009] 7 SCR 434 – distinguished.
D          Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008)
            4 SCC 54 : [2008] 1 SCR 605 – referred to.
            3. The object of Section 138 of the Negotiable Instruments
     Act is to infuse credibility to negotiable instruments including
     cheques and to encourage and promote the use of negotiable
E    instruments including cheques in financial transactions. The
     penal provision of Section 138 of the Negotiable Instruments 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. Having regard
     to the object of Section 138 of the Negotiable Instruments Act, a
F    prosecution based on a second or successive default in payment
     of the cheque amount is not impermissible simply because no
     statutory notice had been issued after the first default and no
     proceeding for prosecution had been initiated. [Paras 9 and 10]
           MSR Leathers v. S. Palaniappan & Anr (2013) 1 SCC
G           177 : [2012] 9 SCR 165 – relied on.
            4. If two views are possible, this Court, in exercise of its
     jurisdiction under Article 136 of the Constitution would ordinarily
     not interfere with a judgment of acquittal, is well settled.
     [Para 31]
H
                BIR SINGH v. MUKESH KUMAR                               29


      John K John v. Tom Varghese & Anr. (2007) 12 SCC                  A
      714 : [2007] 11 SCR 287 – relied on.
      5. A judgment is a precedent for the issue of law which is
raised and decided. It is the ratio decidendi of the case which
operates as a binding precedent. What is binding on all courts is
what the Supreme Court says under Article 141 of the                    B
Constitution, which is declaration of the law and not what it does
under Article 142 to do complete justice. [Para 34]
      State of Punjab & Ors. v. Surinder Kumar & Ors. (1992)
      1 SCC 489 : [1991] 3 Suppl. SCR 553 – relied on.
     “Constitutional Supremacy - A Revisit” by V. Sudhish Pai
     – referred to.                                                     C
                       Case Law Reference
[2012] 9 SCR 165                relied on            Para 10
[2008] 14 SCR 130               relied on            Para 20
[2001] 3 SCR 900                relied on            Para 22
[1958] SCR 580                  relied on            Para 22            D
[2005] 3 SCR 345                relied on            Para 24
[2006] 9 Suppl. SCR 40          relied on            Para 24
[2012] 11 SCR 466               relied on            Para 25
[2008] 17 SCR 572               relied on            Para 26
[2001] 4 Suppl. SCR 374         relied on            Para 27            E
[2012] 14 SCR 712               relied on            Para 28
[2009] 7 SCR 434                distinguished        Para 30
[2007] 11 SCR 287               relied on            Para 31
[2008] 1 SCR 605                referred to          Para 33
[1991] 3 Suppl. SCR 553 relied on                    Para 3
                                                                        F
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 230-231 of 2019.
      From the Judgment and Order dated 21.11.2017 of the High Court
of Punjab & Haryana at Chandigarh in Criminal Revision Petition (CRP)
No. 849 of 2016 (O&M) and CRR No. 2017 of 2016 (O&M)
                                                                        G
      Pradeep K. Kaushik, Rajiv Mangla, Advs. for the Appellant.
      Saju Jakob, C.M. Jaya Kumar, Abhishek Jaiswal, Jessy
Kurian, Ms. Lily Isabel Thomas, Advs. for the Respondent.

                                                                        H
30                 SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A          The Judgment of the Court was delivered by
             INDIRA BANERJEE, J. 1. Leave granted.
             2. These appeals are against a Judgment and order dated 21-11-
     2017 passed by the High Court of Punjab and Haryana at Chandigarh
     allowing the Criminal Revisional Application being Criminal Revision
B    Petition No.849 of 2016 filed by the respondent-accused, challenging a
     judgment and order dated 20-2-2016 passed by the Additional Sessions
     Judge, Palwal in Criminal Appeal No.13/2015 filed by the respondent-
     accused, inter alia, affirming a judgment and order of conviction of the
     respondent-accused, passed by the Judicial Magistrate, 1st Class, Palwal
     under Section 138 of the Negotiable Instruments Act, 1881.
C
             3. It is the case of the appellant-complainant, that the respondent-
     accused issued a cheque being Cheque No.034212 dated 4-3-2012 drawn
     on Axis Bank, Branch, Palwal in the name of the appellant towards
     repayment of a “friendly loan” of Rs.15 lakhs advanced by the appellant-
     complainant to the respondent-accused.
D            4. On 11-4-2012, the appellant-complainant deposited the said
     cheque in his bank, but the cheque was returned unpaid with the
     endorsement “Insufficient Fund”.
             5. The appellant-complainant has alleged that, on the assurance
     of the respondent-accused, that there would be sufficient funds in his
E    bank account to cover the amount of the cheque, the appellant-
     complainant again presented the cheque to his bank on 23-5-2012, but it
     was again returned unpaid with the remark “Insufficient Fund”.
             6. On 15-6-2012, the appellant-complainant issued a legal notice
     to the respondent-accused through his lawyer, calling upon the respondent-
F    accused to pay the cheque amount. The said notice, sent by registered
     post, was according to the appellant-complainant, duly served on the
     respondent-accused. The respondent-accused, however, did not reply
     to the notice. Nor did he pay the cheque amount to the appellant-
     complainant.
             7. The appellant-complainant filed a Criminal Complaint against
G
     the respondent-accused, being Case No.106 of 2012 before the Judicial
     Magistrate 1st Class, Palwal, under Section 138 of the Negotiable
     Instruments Act.
             8. Sections 138 and 139 of the Negotiable Instruments Act are
     set out herein below for convenience:-
H
        BIR SINGH v. MUKESH KUMAR                               31
            [INDIRA BANERJEE, J.]

“138 Dishonour of cheque for insufficiency, etc., of funds      A
in the account. —Where any cheque drawn by a person on
an account maintained by him with a banker for payment
of any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt
or other liability, is returned by the bank unpaid, either
                                                                B
because of the amount of money standing to the credit of
that account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall be
deemed to have committed an offence and shall, without
prejudice to any other provisions of this Act, be punished      C
with imprisonment for a term which may be extended to two
years, or with fine which may extend to twice the amount of
the cheque, or with both:
Provided that nothing contained in this section shall apply
unless—                                                         D
(a) the cheque has been presented to the bank within a period
of six months from the date on which it is drawn or within
the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as
the case may be, makes a demand for the payment of the          E
said amount of money by giving a notice in writing, to the
drawer of the cheque,within thirty days of the receipt of
information by him from the bank regarding the return of
the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of      F
the said amount of money to the payee or, as the case may
be, to the holder in due course of the cheque, within fifteen
days of the receipt of the said notice.
Explanation.— For the purposes of this section, “debt or
other liability” means a legally enforceable debt or other
                                                                G
liability.]
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.”                                                     H
32                   SUPREME COURT REPORTS                   [2019] 2 S.C.R.


A           9. The object of Section 138 of the Negotiable Instruments Act is
     to infuse credibility to negotiable instruments including cheques and to
     encourage and promote the use of negotiable instruments including
     cheques in financial transactions. The penal provision of Section 138 of
     the Negotiable Instruments Act is intended to be a deterrent to callous
     issuance of negotiable instruments such as cheques without serious
B
     intention to honour the promise implicit in the issuance of the same.
            10. Having regard to the object of Section 138 of the Negotiable
     Instruments Act, a prosecution based on a second or successive default
     in payment of the cheque amount is not impermissible simply because
     no statutory notice had been issued after the first default and no
C    proceeding for prosecution had been initiated. As held by this Court in
     MSR Leathers vs. S. Palaniappan & Anr1, there is no real or qualitative
     difference between a case where default is committed and prosecution
     immediately launched and another where the prosecution is deferred till
     the cheque presented again gets dishonoured for the second time or
D    successive times.
            11. By a judgment and order dated 9-2-2015, the Judicial Magistrate
     I Class, Palwal convicted the respondent-accused under Section 138 of
     the Negotiable Instruments Act and sentenced him to undergo simple
     imprisonment for a period of one year and further directed him to pay
     compensation of Rs.15 lakhs to the appellant-complainant within one
E    month from the date of the said Judgment and order. Being aggrieved,
     the respondent-accused filed a criminal appeal No.13/2015 dated 9-3-
     2015 in the court of Additional Sessions Judge, Palwal.
            12. By a judgment and order dated 20-2-2016, the Appellate Court
     upheld the conviction of the respondent-accused under Section 138 of
F    the Negotiable Instruments Act and confirmed the compensation of Rs.15
     lakhs directed to be paid to the appellant-complainant. The sentence of
     imprisonment was however reduced to six months from one year.
            13. The respondent-accused filed a Criminal Revision Petition
     being CRR No.849 of 2016 in the High Court challenging the Judgment
G    and order of the Appellate Court. The appellant- complainant also filed
     a Criminal Revision Petition being CRR No.2017 of 2016 challenging
     the reduction of the sentence from one year to six months.


     1
H        (2013) 1 SCC 177
                 BIR SINGH v. MUKESH KUMAR                                  33
                     [INDIRA BANERJEE, J.]

       14. By a common final Judgment and order dated 21-11-2017            A
which is impugned before us, the High Court has reversed the concurrent
factual findings of the Trial Court and the Appellate Court and acquitted
the respondent of the charge under Section 138 of the Negotiable
Instruments Act, observing, inter alia, that there was fiduciary
relationship between the appellant-complainant, an Income Tax
                                                                            B
practitioner, and the respondent-accused who was his client.
       15. The High Court observed and held:-
            “The complainant had fiduciary relationship with the
         accused-petitioner. Therefore, heavy burden was on the
         complainant to prove that he had advanced the loan and
         that blank cheque for the same was given to him. The               C
         complainant is an income tax practitioner and he knows
         that whenever loan is advanced to anybody, receipt has to
         be obtained and that such heavy amount is to be advanced
         only through a cheque or demand draft or RTGS. The
         accused-petitioner was the client of the complainant and           D
         they were having professional relationship. The accused
         petitioner was no so thick and thin with the complainant.
         There is no reason why the complainant, who is an income
         tax practitioner, will advance such a heavy loan to his client
         without any close relationship and without obtaining any
         writing to this effect. There was heavy burden on the              E
         complainant. In such circumstances, the accused-petitioner
         is successful in raising reasonable doubts that the
         complainant might have misused one of the blank cheques
         given to him for payment of income tax for depositing the
         same in the Treasury.                                              F
            In order to support his case, the accused-petitioner took
         a risk by stepping himself into the witness box and offered
         himself for cross-examination. He asserted in his cross
         examination that the tax return was deposited in cash and
         the complainant used to take cash from him. His version
         was also supported by one Praveen Kumar, DW2.                      G
            From the abovenoted discussions, it is clear that the
         parties were in fiduciary relationship and heavy burden was
         on the complainant to prove that he had advanced a loan
         of Rs.15,00,000/- to his client without obtaining any writing
         and that he has not misused any blank cheque of his client.
                                                                            H
34                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A              Such loan was not shown in the income tax return of the
               complainant.
                  For the reasons mentioned above, the case of the
               complainant becomes highly doubtful and is not beyond all
               reasonable doubts. Therefore, no presumption under Section
               138 of the Negotiable Instruments Act, 1881 can be raised.
B
               Both the courts below erred in holding the accused-
               petitioner guilty for the commission of offence punishable
               under Section 138 of the Negotiable Instruments Act, 1881.
                  In view of the foregoing discussions, CRR No. 849 of
               2016 is allowed and CRR No.2017 of 2016 is dismissed.
C              The accused- petitioner stands acquitted of the notice of
               accusation served upon him.”
            16. The short question before us is whether the High Court was
     right in reversing the concurrent factual findings of the Trial Court and
     of the Appellate court in exercise of its revisional jurisdiction. The
D    questions of law which rise in this appeal are, (i) whether a revisional
     Court can, in exercise of its discretionary jurisdiction, interfere with an
     order of conviction in the absence of any jurisdictional error or error of
     law and (ii) whether the payee of a cheque is disentitled to the benefit
     of the presumption under Section 139 of the Negotiable Instruments
     Act, of a cheque duly drawn, having been issued in discharge of a debt
E    or other liability, only because he is in a fiduciary relationship with the
     person who has drawn the cheque.
            17. The Trial Court, on analysis of the evidence adduced by the
     respective parties arrived at the factual finding that the respondent-
     accused had duly issued the cheque in question for Rs.15 lakhs in favour
F    of the appellant-complainant, in discharge of a debt or liability, the cheque
     was presented to the bank for payment within the period of its validity,
     but the cheque had been returned unpaid for want of sufficient funds in
     the account of the respondent-accused in the bank on which the cheque
     was drawn. Statutory Notice of dishonour was duly issued to which
     there was no response from the respondent-accused.
G
            18. The Appellate Court affirmed the aforesaid factual findings.
     The Trial Court and the Appellate Court arrived at the specific concurrent
     factual finding that the cheque had admittedly been signed by the
     respondent-accused. The Trial Court and the Appellate Court rejected
     the plea of the respondent-accused that the appellant-complainant had
H    misused a blank signed cheque made over by the respondent-accused to
                      BIR SINGH v. MUKESH KUMAR                               35
                          [INDIRA BANERJEE, J.]

the appellant-complainant for deposit of Income Tax, in view of the           A
admission of the respondent-accused that taxes were paid in cash for
which the appellant-complainant used to take payment from the
respondent in cash.
         19. It is well settled that in exercise of revisional jurisdiction
under Section 482 of the Criminal Procedure Code, the High Court does         B
not, in the absence of perversity, upset concurrent factual findings. It is
not for the Revisional Court to re-analyse and re-interpret the evidence
on record.
       20. As held by this Court in Southern Sales and Services and
Others vs. Sauermilch Design and Handels GMBH2,it is a well
established principle of law that the Revisional Court will not interfere     C
even if a wrong order is passed by a court having jurisdiction, in the
absence of a jurisdictional error. The answer to the first question is
therefore, in the negative.
       21. In passing the impugned judgment and order dated 21-11-
2017, the High Court mis-construed Section 139 of Negotiable                  D
Instruments Act, which mandates that unless the contrary is proved,it
is to be presumed 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. Needless to mention that the presumption
contemplated under Section 139 of the Negotiable Instruments Act, is a        E
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.
       22. In Hiten P. Dalal vs. Bratindranath Banerjee3,this Court
held that both Section 138 and 139 require that the Court shall presume
the liability of the drawer of the cheques for the amounts for which the      F
cheques are drawn. Following the judgment of this Court in State of
Madras vs.Vaidyanatha Iyer4,this Court held that it was obligatory on
the Court to raise this presumption.
       23. Section 139 introduces an exception to the general rule as
to the burden of proofand shifts the onus on the accused. The                 G
presumption under Section 139 of the Negotiable Instruments Act is a
presumption of law, as distinguished from presumption of facts.
Presumptions are rules of evidence and do not conflict with the
2
  (2008) 14 SCC 457
3
  (2001) 6 SCC 16
4
  AIR 1958 SC 61                                                              H
36                 SUPREME COURT REPORTS                     [2019] 2 S.C.R.


A 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 as
  held in Hiten P. Dalal (supra).
B
          24. Presumption of innocence is undoubtedly a human right as
  contended on behalf of the respondent-accused, relying on the judgments
  of this Court in Ranjitsing Brahmajeetsing Sharma vs. State of
  Maharashtra and Anr5and Rajesh Ranjan Yada @ Pappu Yadav
  vs. CBI through its Director6. However the guilt may be established
C by recourse to presumptions in law and presumptions in facts, as observed
  above.
          25. In Laxmi Dyechem vs. State of Gujarat & Ors.7,this Court
  reiterated that in view of Section 139, it has to be presumed that a cheque
  was issued in discharge of a debt or other liability but the presumption
D could be rebutted by adducing evidence. The burden of proof was however
  on the person who wanted to rebut the presumption. This Court held
  “however, this presumption coupled with the object of Chapter XVII of
  the Act leads to the conclusion that by countermanding payment of a
  post dated cheque, a party should not be allowed to get away from the
  penal provision of Section 138 of the Act”.
E
          26. In Kumar Exports vs.Sharma Carpets8, this Court reiterated
  that there is a presumption that every negotiable instrument duly executed,
  is for discharge of a debt or liability, but the presumption is rebuttable by
  proving the contrary. In the facts and circumstances of the case it was
  found that the cheque in question was towards advance for purchase of
F carpets, which were in fact not sold by the payee of the cheque to the
  drawer, as proved from the deposition of an official of the Sales Tax
  Department, who stated that the payee had admitted that he had not sold
  the carpets.
          27. In K.N. Beena vs. Muniyappan and Another9, this Court
G held that in view of the provisions of Section 139 of the Negotiable
  Instruments Act read with Section 118 thereof, the Court had to presume

     5
       (2005) 5 SCC 294
     6
       (2007) 1 SCC 70
     7
       (2012) 13 SCC 375
     8
       (2009) 2 SCC 513
H    9
       (2001) 8 SCC 458
                        BIR SINGH v. MUKESH KUMAR                               37
                            [INDIRA BANERJEE, J.]

that the cheque had been issued for discharging a debt or liability. The        A
said presumption was rebuttable and could be rebutted by the accused
by proving the contrary. But mere denial or rebuttal by the accused was
not enough. The accused had to prove by cogent evidence that there
was no debt or liability. This Court clearly held that the High Court had
erroneously set aside the conviction, by proceeding on the basis that
                                                                                B
denials/averments in the reply of the accused were sufficient to shift the
burden of proof on the complainant to prove that the cheque had been
issued for discharge of a debt or a liability. This was an entirely erroneous
approach. The accused had to prove in the trial by leading cogent
evidence that there was no debt or liability.
       28. In R. Vijayan vs. Baby and Another10this Court observed              C
that the object of Chapter XVII of the Negotiable Instruments Act is
both punitive as also compensatory and restitutive. It provides a single
forum and single proceeding for enforcement of criminal liability by reason
of dishonour of cheque and for enforcement of the civil liability for
realization of the cheque amount, thereby obviating the need for the            D
creditor to move two different fora for relief. This Court expressed its
anguish that some Magistrates went by the traditional view, that the
criminal proceedings were for imposing punishment and did not exercise
discretion to direct payment of compensation, causing considerable
difficulty to the complainant, as invariably the limitation for filing civil
cases would expire by the time the criminal case was decided.                   E
       29. In R. Vijayan vs. Baby and another (supra) this Court
observed that unless there were special circumstances, in all cases of
conviction, the Court should uniformly exercise the power to levy fine
up to twice the cheque amount and keeping in view the cheque amount
and the simple interest thereon at 9% per annum as the reasonable               F
quantum of loss, direct payment of such amount as compensation. This
Court rightly observed that uniformity and consistency in deciding similar
cases by different courts not only increases the credibility of the cheque
as a Negotiable Instrument but also the credibility of the Courts of Justice.
         30. The judgment of this Court in Raj Kumar Khurana vs.
                                                                                G
State of (NCT of Delhi) & Anr.11was rendered in the particular facts of
the case where the drawer of the cheque had reported to the police and
the bank that two unfilled cheques signed by him had been stolen.

10
     (2012) 1 SCC 260
11
     (2009) 6 SCC 72                                                            H
38                  SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A             31. The proposition as re-enunciated in John K John vs. Tom
     Varghese & Anr.12cited on behalf of the respondent-accused that if two
     views are possible, this Court, in exercise of its jurisdiction under Article
     136 of the Constitution would ordinarily not interfere with a judgment of
     acquittal, is well settled.
B             32. In the aforesaid case this Court affirmed an acquittal under
     Section 138 of the Negotiable Instrument Act, in the           peculiar facts
     and circumstances of the case where several civil suits between the
     parties were pending.
            33. In Krishna Janardhan Bhat vs. Dattatraya G. Hegde13,
     cited on behalf of the respondent-accused, this Court reaffirmed that
C    Section 139 of the Act raises a presumption that a cheque duly drawn
     was towards a debt or liability. However, keeping in view the peculiar
     facts and circumstances of the case, this Court was of the opinion that
     the courts below had approached the case from a wholly different angle
     by wrong application of legal principles.
D           34. It is well settled that a judgment is a precedent for the issue
     of law which is raised and decided. It is the ratio decidendi of the
     case which operates as a binding precedent. As observed by this Court
     in State of Punjab & Ors. vs. Surinder Kumar & Ors.14, what is
     binding on all courts is what the Supreme Court says under Article 141
E    of the Constitution, which is declaration of the law and not what it does
     under Article 142 to do complete justice.
            35. Furthermore, to quote V. Sudhish Pai from his book
     “Constitutional Supremacy - A Revisit”:-
               “Judgments and observations in judgments are not to be read
              as Euclid’s theorems or as provisions of statute. Judicial
F             utterances/pronouncements are in the setting of the facts of a
              particular case. To interpret words and provisions of a statute it
              may become necessary for judges to embark upon lengthy
              discussions, but such discussion is meant to explain not define,
              Judges interpret statutes, their words are not to be interpreted
G             as statutes. Thus, precedents are not to be read as statutes.”
            36. The proposition of law which emerges from the judgments
     referred to above is that the onus to rebut the presumption under Section
     139 that the cheque has been issued in discharge of a debt or liability is
     12
        (2007) 12 SCC 714
     13
         (2008) 4 SCC 54
H    14
         (1992) 1 SCC 489
                  BIR SINGH v. MUKESH KUMAR                                    39
                      [INDIRA BANERJEE, J.]

on the accused and the fact that the cheque might be post dated does           A
not absolve the drawer of a cheque of the penal consequences of Section
138 of the Negotiable Instruments Act.
        37. A meaningful reading of the provisions of the Negotiable
Instruments Act including, in particular, Sections 20, 87 and 139, makes
it amply clear that a person who signs a cheque and makes it over to the       B
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. It is immaterial that the cheque may have been filled in by any
person other than the drawer, if the cheque is duly signed by the drawer.
If the cheque is otherwise valid, the penal provisions of Section 138
would be attracted.                                                            C
        38. If a signed blank cheque is voluntarily presented to a payee,
towards some payment, the payee may fill up the amount and other
particulars. This in itself would not invalidate the cheque. The onus
would still be on the accused to prove that the cheque was not in discharge
of a debt or liability by adducing evidence.                                   D
        39. It is not the case of the respondent-accused that he either
signed the cheque or parted with it under any threat or coercion. Nor is
it the case of the respondent-accused that the unfilled signed cheque
had been stolen. The existence of a fiduciary relationship between the
payee of a cheque and its drawer, would not disentitle the payee to the
                                                                               E
benefit of the presumption under Section 139 of the Negotiable
Instruments Act, in the absence of evidence of exercise of undue influence
or coercion. The second question is also answered in the negative.
        40. Even a blank cheque leaf, voluntarily signed and handed over
by the accused, which is towards some payment, would attract
presumption under Section 139 of the Negotiable Instruments Act, in the        F
absence of any cogent evidence to show that the cheque was not issued
in discharge of a debt.
        41. The fact that the appellant-complainant might have been an
Income Tax practitioner conversant with knowledge of law does not
make any difference to the law relating to the dishonour of a cheque.          G
The fact that the loan may not have been advanced by a cheque or
demand draft or a receipt might not have been obtained would make no
difference. In this context, it would, perhaps, not be out of context to
note that the fact that the respondent-accused should have given or
signed blank cheque to the appellant-complainant, as claimed by the
                                                                               H
40                 SUPREME COURT REPORTS                     [2019] 2 S.C.R.


A    respondent-accused, shows that initially there was mutual trust and faith
     between them.
            42. In the absence of any finding that the cheque in question was
     not signed by the respondent-accused or not voluntarily made over to
     the payee and in the absence of any evidence with regard to the
B    circumstances in which a blank signed cheque had been given to the
     appellant-complainant, it may reasonably be presumed that the cheque
     was filled in by the appellant-complainant being the payee in the presence
     of the respondent-accused being the drawer, at his request and/or with
     his acquiescence. The subsequent filling in of an unfilled signed cheque
     is not an alteration. There was no change in the amount of the cheque,
C    its date or the name of the payee. The High Court ought not to have
     acquitted the respondent-accused of the charge under Section 138 of
     the Negotiable Instruments Act.
            43. In our considered opinion, the High Court patently erred in
     holding that the burden was on the appellant-complainant to prove that
D    he had advanced the loan and the blank signed cheque was given to him
     in repayment of the same. The finding of the High Court that the case
     of the appellant-complainant became highly doubtful or not beyond
     reasonable doubt is patently erroneous for the reasons discussed above.
            44. The appeals are allowed. The judgment and order of the
E    High Court is set aside. The conviction of the respondent under Section
     138 of the Negotiable Instruments Act is confirmed. However, the
     respondent-accused is sentenced only to fine, which is enhanced to Rs.16
     lakhs and shall be paid as compensation to the appellant-complainant.
     The fine shall be deposited in the Trial Court within eight weeks from
     the date, failing which the sentence of imprisonment of one year as
F    imposed by the Trial Court shall revive. There shall be no order as to
     costs.

     Kalpana K. Tripathy                                        Appeals allowed.



G




H