T. VASANTHAKUMARversusVIJAYAKUMARI

                         [2015] 5 S,C.R. 342


A                      T. VASANTHAKUMAR
                                  v.
                          VIJAYAKUMARI
B                (Criminal Appeal No.728of2015)

                          APRIL28, 2015

                    [J. CHELAMESWAR AND
c                PINAKI CHANDRA GHOSE, JJ.]

         Negotiable Instruments Act, 1881 - ss. 138 and 139-
  Complaint uls 138 - Conviction by trial and appellate court
  - In revision, the High Court acquitted the accused - On
o appeal, held: In the present case, presumption u/s 139 would
  operate and the burden was on the accused to disprove the
  cheque or existence of any legally recoverable debt or liability
  - Accused failed to rebut such presumption - High Court
  wrongly put the burden of proof on the complaint - Order of
E conviction restored.

           Allowing the appeal, the Court

         HELD: The presumption mandated by Section
F 139 of Negotiable Instruments Act, 1881 is in the nature
  of a rebuttable presumption and it is open to the accused
  to raise a defence wherein the existence of a legally
  enforceable debt or liability can be contested. In the
  present case since the cheque as well as the signature
G has been accepted by the accused respondent, the
  presumption under Section 139 would operate. Thus, the
  burden was on the accused to disprove the cheque or
  the existence of any legally recoverable debt or liability.
  The story brought out by the accused is unworthy of
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                               342
        T. VASANTHAKUMAR v.. VIJAYAKUMARI                   343


credit, apart from being unsupported by any evidence. A
The accused in her evidence brought out nothing to
prove the debt of 1999 nor disprove the loan taken in
2006. Thus, High Court was misplaced in putting the
burden of proof on the complainant. As per Section 139,
the burden of proof had shifted on the accused which 8
the accused failed to discharge. Therefore, order passed
by the High Court is set aside and the judgment
convicting the respondent for an offence under Section
138 of the Negotiable Instruments Act and sentencing C
her to pay a fine of Rs.5,55,000/-, in default to suffer
Simple Imprisonment for five months, is restored.
[para 9-13] [347-G-H; 348-B-H; 349-A-B]

     Rangappa v. Sri Mohan (2010) 11 SCC 441-
                                                             D
     relied on.

                  Case Law Reference

      (2010) 11 sec 441           relied on      para 9
                                                             E
      CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 728 of 2015

      From the Judgment and Order dated 22.07.2011 of the
High Court of Karnataka at Bangalore in Crl. R. P. No. 263 of F
2011

      Rajesh Mahale, Krutin R. Joshi, for the Appellant.

     Kiran Suri, Apurva Upamanyu, Dr. Vipin Gupta, for the
Respondent.                                                G

      The Judgment of the Court was delivered by

      PINAKI CHANDRA GHOSE, J. 1. Leave granted.
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344         SUPREME COURT REPORTS                 [2015] 5 S.C.R.


A            2. This appeal, by special leave, arises from the
      judgment and order dated 22-07-2011 passed by the High
      Court of Karnataka in Criminal Revision Petition No.263/2011
      by which the High Court set aside the judgments of the two
      Courts below and acquitted the respondent herein.
B
           3. The genesis of the litigation in the present case is
  that a complaint under Section 138 of the Negotiable
  Instruments Act, 1881 was filed by the complainant before the
  XII Magistrate, Bangalore. The learned Magistrate had, after
C trial, found the defendant guilty and sentenced her to pay
  Rs. 5, 55, 000/- and in default of payment of the said amount, to
  undergo simple imprisonment for a period of five months. This
  order of the learned Magistrate was challenged in the appeal
  before the Fast Track Court, Bangalore, but the same was
D dismissed by the Fast Track Court. The defendant preferred a
  revision of the Fast Track Court's order before the High Court,
  being Criminal Revision Petition No.263/2011.

         4. The case of the complainant is that he is the owner of
E the Ullas Theatre situated at Yashwantpur, Bangalore, while
  the defendant is the distributor of films. The two parties had a
  business relationship whereunder the defendant provided
  movies to the complainant for screening at his Theatre. In May
F 2006, the defendant sought a loan of Rupees Five Lakhs from
  the complainant for supporting the making of a Tamil movie
  "Pokari". The said loan was advanced by the complainant on
  20-05-2006. The defendant had promised to repay the loan
  on release of the said movie. However, the defendant failed to
G repay the said loan. On repeated requests made by the
  complainant, the defendant on 16-01-2007, gave a cheque
  for Rs.5 lakhs, bearing No.822408, drawn on State Bank of
  Mysore, Vyalikaval Branch, Bangalore. This cheque was
  presented by the complainant on the same day through his
H
         T. VASANTHAKUMAR v. VIJAYAKUMARI                           345
              [PINAKI CHANDRA GHOSE, J.]

banker Vijaya Bank, Yeshwantpur Branch, Bangalore. But the A
cheque was returned on 18-01-2007 by the Bank with the
remarks: "Stop Payment". Thereafter, the complainant issued
a legal notice to the defendant on 27-01-2007, at the office
address as well as residential address of the defendant. The
notice sent at the residential address through RPAD was duly B
received, while the one sent at the office address of the
defendant was returned with the report: "Absent- Information
delivered". Even after the notice was served, the defendant
neither made the payment nor responded to the same.
                                                                     c
        5. The defendant's case is that she is only the name
lender to the business of films distribution run in the name of
Vijayakumari Films which is actually controlled and managed
by her husband Kuppuswamy. She has disputed taking any
                                                                     0
loan from the complainant as claimed by him. According to
her, she never visited the place of complainant and never
borrowed any money. The defendant has claimed that
Vijayakumari Films had differences with the complainant in
the year 2006, over release of the film "Pokari". The defendant's    E
husband had denied to release the film in the complainant's
theatre on the ground that at the time of the release of the said
movie, another Kannada movie was being shown there ar.J it
could have been a sensitive matter. The defendant's case is
that the alleged cheque was given to the complainant in the          F
year 1999 as security against loan of Rs.5 lakhs taken then.
After the defendant paid the loan, the complainant did not return
the said cheque saying that he had misplaced it. The defendant
alleges that the complainant, due to ill will in release of the
movie "Pokari", used this old cheque to take revenge against        G
the defendant firm.

      6. The Trial Court found the defendant guilty under
Section 138 of Negotiable Instruments Act and sentenced her
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346        SUPREME COURT REPORTS                    [2015) 5 S.C.R.


A to pay a fine of Rs.5,55,000/-, in default of payment, she was
  to undergo simple imprisonment for five months. The first
  appellate Court found that although the defendant disputed the
  transaction, they did not dispute the cheque or her signature
  on it. The learned Sessions Judge (Fast Track Court) found
8 that there was no evidence forthcoming to show that the cheque
  was issued in 1999. It noted that there was no suggestion put
  to the defendant with respect to the loan taken in 1999 or
  cheque given to him as security in 1999. Further the Court
C relied on the presumption in favour of the complainant under
  Section 139 and held that the defendant had failed to rebut
  that presumption. The Court also rejected the claim of the
  defendant that she and her husband were not in Bangalore on
  the alleged date when the loan was advanced i.e. 20-05-2006.
D The defendant had produced hotel bills of Chennai for those
  dates, but the Court held that the bills do not prove the presence
  of the Defendant along with her husband in Chennai. On these
  grounds the Court did not find weight in the case of the
  defendant.
E
          7. The High Court in appeal reversed the concurrent
  finding of the learned Magistrate and learned Sessions Judge.
  The High Court found that the cheque was actually from the
  cheque book that was issued prior to 2000 as the cheque leaf
F itself mentioned the date in printed ink as "_/_/199_". The
  High Court observed that it is hard to believe that a business
  transacting party would give a cheque which is of the decade
  1990 in relation to the transaction in 2007. The High Court
  accepted the argument of the defendant that the Complainant
G used the old cheque due to ill will because of denial of the
  defendant firm to release the film "Pokari" in his theatre. Further,
  the High Court noted that the cqmplainant in his statement has
  deposed that he had withdrawn the amount of Rs.5 lakhs, 2
H days prior to giving it to the defendant but he failed to bring on
        T. VASANTHAKUMAR v. VIJAYAKUMARI                          347
             [PINAKI CHANDRA GHOSE, J.]

record any receipt or other proof of such withdrawal of money A
from bank. The High Court found the case of the complainant
lacking to prove the offence under Section 138 of the
Negotiable Instruments Act.

       8. We have heard the learned counsel appearing for B
the appellant as also the learned counsel appearing for the
respondent. The complainant has alleged that the money (loan)
was advanced to the defendant on 20-05-2006 in relation to
which the cheque was issued to him by the defendant on 16-
01-2007. The cheque was for Rs.5 lakhs only, bearing C
No.822408. It is of great significance that the cheque has not
been disputed nor the signature of the defendant on it. There
has been some controversy before us with respect to Section
139 of Negotiable Instruments Act as to whether complainant
                                                               0
has to prove existence of a legally enforceable debt before
the presumption under Section 139 of the Negotiable
Instruments Act starts operating ar:id burden shifts to the
accused. Section 139 reads as follows:
                                                                   E
  "139. Presumption in favour of the 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."                                    F
      9. This Court has held in its three judge bench judgment
in Rangappa v. Sri Mohan (2010) 11 SCC 441:

  "The presumption mandated by Section 139 includes a
  presumption that there exists a legally enforceable debt         G
  or liability. This is of course in the nature of a rebuttable
  presumption and it is open to the accused to raise a
  defence wherein the existence of a legally enforceable
  debt or liability can be contested. However, there can be
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348       SUPREME COURT REPORTS                    [2015] 5 S.C.R.


A      no doubt that there is an initial presumption which favours
       the respondent complainant."

             10. Therefore, in the present case since the cheque as
    well as the signature has been accepted by the accused
B   respondent, the presumption under Section 139 would operate.
    Thus, the burden was on the accused to disprove the cheque
    or the existence of any legally recoverable debt or liability. To
    this effect, the accused has come up with a story that the cheque
    was given to the complainant long back in 1999 as a security
C   to a loan; the loan was repaid but the complainant did not return
    the security chequ~. According to the accused, it was that very
    cheque used by the complainant to implicate the accused.
    However, it may be noted that the cheque was dishonoured
    because the payment was stopped and not for any other
0
    reason. This implies that the accused had knowledge of the
    cheque being presented to the bank, or else how would the
    accused have instructed her banker to stop the payment. Thus,
    the story brought out by the accused is unworthy of credit, apart
E   from being unsupported by any evidence.

          11. Further, the High Court relied heavily on the printed
  date on the cheque. However, we are of the view that by itself,
  in absence of any other evidence, cannot be conclusive of the
F fact that the cheque was issued in 1999. The date of the cheque
  was as such 20/05/2006. The accused in her evidence brought
  out nothing to prove the debt of 1999 nor disprove the loan
  taken in 2006.
G          12. In light of the above reasoning, we find that the
    learned High Court was misplaced in putting the burden of
    proof on the complainant. As per Section 139, the burden of
    proof had shifted on the accused which the accused failed to
    discharge. Thus, we find merit in this appeal.
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          T. VASANTHAKUMAR v. VIJAYAKUMARI                      349
               [PINAKI CHANDRA GHOSE, J.]

         13. The appeal is allowed. The judgment and order A
passed by the High Court is accordingly set aside and the
judgment dated 22. 01.2011, delivered by the Presiding Officer,
Fast Track Court-I, Bengaluru, confirming the order passed by
the Xllth Addi. Chief Metropolitan Magistrate, Bengaluru,
convicting the respondent for an offence under Section 138 of B
the Negotiable Instruments Act and sentencing her to pay a
fine of Rs.5,55,000/-, in default to suffer Simple Imprisonment
for five months, is hereby restored.

Kalpana K. Tripathy                           Appeal allowed.    C