TRIYAMBAK S. HEGDEversusSRIPAD

                        [2021] 9 S.C.R. 189                             189


                     TRIYAMBAK S. HEGDE                                 A
                                 v.
                              SRIPAD
               (Criminal Appeal Nos. 849-850 of 2011)
                      SEPTEMBER 23, 2021                                B
           [N. V. RAMANA, CJI, SURYA KANT AND
                    A. S. BOPANNA, JJ.]
       Negotiable Instruments Act, 1881 – ss. 118 and 139 – The
case of the appellant was that the respondent approached him to sell    C
his house – Pursuant to which an agreement dated 06.06.1996 was
executed by the respondent while receiving the advance amount of
Rs.3,50,000/- out of the total agreed price of Rs.4,00,000/- –
Subsequently, appellant found that the house was in respondent’s
father’s name and the respondent had no authority to sell the same
– Appellant demanded return of Rs.3,50,000/- – The respondent           D
instead of paying the entire amount, issued a cheque for sum of
Rs.1,50,000/- – When cheque was presented in the bank, it was
dishonoured with the endorsement ‘insufficient funds’ – Thereafter,
appellant issued notice to the respondent intimating the dishonorment
of cheque, which was not replied – Appellant filed complaint and        E
sought prosecution of the respondent u/s. 138 of the N.I. Act –
Judicial Magistrate, first class (JMFC) convicted respondent and
sentenced him to undergo simple imprisonment for 6 months and to
pay fine of Rs.2,00,000/- – The appeals filed before the Sessions
Judge were dismissed – Before the High Court, the respondent
contended that a relative of the appellant was junior in the office     F
of his advocate and due to such dominant position, the respondent
was made to sign on the agreement and the cheque though the money
was not paid – Proceeding on the basis of this contention, the High
Court set aside the conviction of the respondent – On appeal, held:
Since the signature on the agreement and more particularly the          G
dishonored cheque was not disputed, the presumption as provided
in law u/ss. 118 and 139 of the N.I. Act had arisen – Such
presumption would remain till it is rebutted – The contention of the
respondent that a relative of the appellant was the junior of his
advocate and he has used his dominant position to secure the
                                                                        H
                                189
190            SUPREME COURT REPORTS                        [2021] 9 S.C.R.


A     signature on the cheque, has absolutely no explanation whatsoever
      to indicate the reason for which such necessity arose for him to
      secure the signatures of the respondent, if there was no transaction
      whatsoever between the parties – That apart, the said story was put
      forth for the first time before the High Court – The respondent had
      not replied to the notice intimating dishonor of cheque and put forth
B
      such contention – It was neither raised before the JMFC nor before
      the Sessions Judge – Further, there is no explanation as to why such an
      advocate was engaged by the respondent to defend himself, whose
      junior had used his dominant position to secure his signatures, in
      the same case relating to dishonor of cheque – Also, it is difficult to
C     comprehend as to why a cheque of lesser amount Rs.1,50,000/- was
      secured than full amount of Rs.3,50,000/-, if there was use of dominant
      position by junior advocate – Keeping all these aspects in view, the
      case put forth by the respondent does not satisfy the requirement of
      rebuttal even if tested on touchstone of preponderance of probability
      – The High Court was not justified in its conclusion – The order of
D
      conviction by JMFC is confirmed – However, the sentence is modified,
      the respondent sentenced to pay fine of Rs.2,50,000/- only.

            Partly allowing the appeals, the Court

             HELD: 1. From the facts arising in this case and the nature
E
      of the rival contentions, the record would disclose that the
      signature on the documents at Exhibits P-6 and P-2 is not disputed.
      Exhibit P-2 is the dishonoured cheque based on which the
      complaint was filed. From the evidence tendered before the
      JMFC, it is clear that the respondent has not disputed the
F     signature on the cheque. If that be the position, as noted by the
      courts below a presumption would arise under Section 139 in favour
      of the appellant who was the holder of the cheque. Insofar as the
      payment of the amount by the appellant in the context of the
      cheque having been signed by the respondent, the presumption
      for passing of the consideration would arise as provided under
G
      Section 118(a) of N.I. Act. The said provisions are explicit to the
      effect that such presumption would remain, until the contrary is
      proved. [Paras 11, 12 and 13][97-D-G; 198-A]

           2. In the instant facts, the case put forth was that there was
H     a transaction between the parties where the respondent had
               TRIYAMBAK S. HEGDE v. SRIPAD                            191


agreed to sell the house towards which an advance amount of            A
Rs. 3,50,000/- (Rupees three lakhs fifty thousand only) was paid.
The cheque issued by the respondent was towards part repayment
of the advance amount since the appellant realized that the
respondent did not have proper title to the property and the
transaction could not be carried forward. Since the signature on
                                                                       B
the agreement (Exhibit P-6) and more particularly the dishonored
cheque (Exhibit P-2) was not disputed, the presumption as
provided in law had arisen. Such presumption would remain till it
is rebutted. The question however is as to whether, either from
the material available on record or the nature of contentions put
forth it could be gathered that the presumption had been rebutted      C
by the respondent. As noted by the High Court, the contention of
the respondent was that the relative of the appellant was the junior
in the office of his advocate, who represented the respondent in
a civil case. In that light, it was further contended that due to
such dominant position, the respondent was made to sign on the
                                                                       D
agreement and the cheque though the money had not been paid.
The said story was urged for the first time before the High Court.
There is no such suggestion or admission to that effect as contended
by the learned counsel for the respondent. In fact, the suggestion
made to PW1 in his cross-examination is to contend that the
cousin of the appellant was an advocate and as to whether he had       E
consulted him before entering into the agreement, to which PW1
has answered that he did not find the need to do so. The admission
that his cousin is an advocate does not lead to the conclusion
that he had admitted that he was in a dominant position. [Para
17][200-D-H; 201-A]
                                                                       F
      3. Further, though the respondent had put forth the
contention that a relative of the appellant was the junior of his
advocate and he has used his dominant position to secure the
signature on the cheque, there is absolutely no explanation
whatsoever to indicate the reason for which such necessity arose
                                                                       G
for him to secure the signatures of the respondent, if there was
no transaction whatsoever between the parties. That apart, the
said story even to be examined was put forth for the first time
before the High Court. As is evident from the records the notice
issued by the appellant intimating the dishonorment of the cheque
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192            SUPREME COURT REPORTS                       [2021] 9 S.C.R.


A     and demanding payment, though received by the respondent has
      not been replied. In such situation, the first opportunity available
      to put forth such contention if true was not availed. Even in the
      proceedings before the learned JMFC, the respondent has not
      put forth such explanation in the statement recorded under Section
      313 of CrPC nor has the respondent chosen to examine himself
B
      or any witness in this regard. The said contention had not been raised
      even in the appeal filed before the learned Sessions Judge. [Para
      19][201-E-H; 202-A-B]
             4. Further, the story as put forth apart from being an
      afterthought, ex facie appears to be contrary to the records, as it
C     is seen that the advocate in question whose junior was in a
      dominant position is the same learned advocate who had defended
      the respondent in this litigation. If what was being stated was the
      true fact, the respondent would have brought the same to the
      notice of the said advocate and in such situation would not have
D     engaged the same advocate against whose junior he had a
      grievance and engage him to represent the case relating to
      dishonor cheque which was of the same subject matter. Further, if
      the cheque was secured in such circumstance and was not voluntary,
      it is difficult to comprehend as to why it would have been drawn
      for Rs.1,50,000/- (Rupees one lakh fifty thousand only) only when
E     it is the case of the appellant that the advance amount paid was
      Rs.3,50,000/-(Rupees three lakh fifty thousand only) and had to
      get back the entire advance paid. The natural conduct would have
      been to secure for the full amount if that was the situation. Keeping
      all these aspects in view, the case put forth by the respondent
F     does not satisfy the requirement of rebuttal even if tested on the
      touchstone of preponderance of probability. Therefore, in the
      present facts it cannot be held that the presumption which had
      arisen in favour of the appellant had been successfully rebutted by
      the respondent herein. The High Court therefore was not justified
      in its conclusion. [Para 20][202-B-F]
G
            K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr. (1999)
            7 SCC 510 : [1999] 3 Suppl. SCR 271 – relied on.
            Basalingappa v. Mudibasappa (2019) 5 SCC 418 : [2019]
            6 SCR 555 – distinguished.
H
                 TRIYAMBAK S. HEGDE v. SRIPAD                                  193


      K. Chinnaswamy Reddy v. State of Andhra Pradesh and                      A
      Anr. AIR 1962 SC 1788 : [1963] SCR 412; Kaushalya
      Devi Massand v. Roopkishore Khore (2011) 4 SCC 593
      : [2011] 3 SCR 879 – referred to.
                         Case Law Reference
[1999] 3 Suppl. SCR 271                relied on                 Para 13       B

[2019] 6 SCR 555                       distinguished             Para 14
[1963] SCR 412                         referred to               Para 18
[2011] 3 SCR 879                       referred to               Para 21
                                                                               C
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos.849-850 of 2011.
      From the Judgment and Order dated 01.12.2009 of the High Court
of Karnataka, Circuit Bench at Dharwad in Criminal Revision Petition
No.1282 of 2006 and Criminal Revision Petition No.1481 of 2006.
                                                                               D
      Rajesh Inamdar, Javedur Rehman, Rauf Rahim, Advs. for the
Appellant.
     G. V. Chandrasekar, N. K. Verma, Ms. Apeksha D., Ms. Anjana
Chandrashekar, Advs. for the Respondent.
      The Judgment of the Court was delivered by                               E

      A. S. BOPANNA, J.
       1. The appellant is before this Court assailing the common order
dated 01.12.2009 in Criminal Revision Petition No.1282/2006 connected
with Criminal Revision Petition No.1481/2006 passed by the High Court          F
of Karnataka. Through the said order the learned Single Judge has allowed
Criminal Revision Petition No.1282/2006 filed by the respondent herein.
The Criminal Revision Petition No.1481/2006 filed by the appellant herein
has been dismissed. Consequently, the conviction of the respondent,
ordered by the learned Judicial Magistrate and affirmed by the learned
Session Judge is set aside.                                                    G
        2. The case of the appellant is that the respondent who was known
to him for the past few years approached the appellant and informed
that due to his financial difficulty he intends to sell the house situate in
Sirsi town. The appellant agreed to purchase the same for the negotiated
total sale consideration of Rs.4,00,000/- (Rupees four lakhs only). An         H
194            SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A     agreement dated 06.06.1996 was executed by the respondent while
      receiving the advance amount of Rs.3,50,000/- (Rupees three lakhs fifty
      thousand only). Subsequently, when the appellant made certain enquiries,
      he learnt that the house stood in the name of the father of the respondent
      and the respondent did not have the authority to sell the same. In that
      view, the appellant demanded the return of Rs. 3,50,000/- (Rupees three
B
      lakhs fifty thousand only) which he had paid as the advance amount.
      The respondent instead of paying the entire amount, issued a cheque
      dated 17.05.1998 for the sum of Rs. 1,50,000/- (Rupees one lakh fifty
      thousand only) being part of the amount. The appellant presented the
      cheque for realisation on 20.05.1998 when it came to be dishonoured
C     with the endorsement ‘insufficient funds’.
              3. The appellant therefore got issued a notice informing the
      respondent about the cheque being dishonoured and also demanding
      payment of the cheque amount. The respondent, though received the
      notice, failed to respond to the same. In that view, the appellant filed a
D     complaint under Section 200 of the Criminal Procedure Code (for short
      ‘CrPC’) on 14.07.1998 in the Court of the Judicial Magistrate, First
      Class (for short ‘JMFC’) at Sirsi which was registered as Criminal Case
      No.790/2000. Through the said complaint the appellant sought prosecution
      of the respondent under Section 138 of the Negotiable Instruments Act,
      1881 (for short ‘N.I. Act’). The learned JMFC after providing opportunity
E     to both the parties convicted the respondent through the judgment dated
      09.06.2005 for the offence punishable under Section 138 of the N.I.
      Act; sentenced the respondent to undergo simple imprisonment for six
      months and to pay the fine of Rs. 2,00,000/- (Rupees two lakhs only). In
      default of payment of the fine amount, the accused was ordered to
F     undergo simple imprisonment for a further period of three months. Out
      of the fine amount, Rs. 1,95,000/- (Rupees one lakh ninety-five thousand
      only) was ordered to be paid to the appellant as compensation.
             4. The respondent herein claiming to be aggrieved by the said
      judgment dated 09.06.2005 passed by the JMFC, filed an appeal before
G     the District & Sessions Judge, Uttara Kannada, Karwar in Criminal
      Appeal No.57/2005. The appellant herein also filed an appeal in Criminal
      Appeal No.65/2005 before the District and Sessions Judge seeking that
      the sentence imposed on the respondent by the Learned JMFC be
      enhanced, as the compensation of Rs. 1,95,000/- (Rupees one lakh ninety-
      five thousand only) ordered to be paid to the appellant is insufficient.
H
                 TRIYAMBAK S. HEGDE v. SRIPAD                                   195
                      [A. S. BOPANNA, J.]

The learned Sessions Judge having re-examined the matter and on                 A
reassessing the evidence dismissed both the appeals through separate
judgments both dated 22.04.2006. The respondent herein, in that view,
filed the Revision Petition in Criminal Revision Petition No.1282/2006
and the appellant herein filed the connected Revision Petition No.1481/
2006 before the High Court. The learned Single Judge, as noted has
                                                                                B
allowed the Revision Petition filed by the respondent herein and set aside
the conviction order passed by the learned JMFC, which had been
confirmed by the learned Sessions Judge. It is in that background, these
appeals have arisen for consideration.
      5. We have heard Mr. Rajesh Inamdar, learned counsel for the
appellant, Mr. G.V. Chandrasekar, learned counsel for the respondent            C
and perused the appeal papers.
        6. Before the learned Magistrate, the appellant had examined
himself as PW1 and got marked the documents at Exhibits P1 to P6.
The deposition of the appellant as PW1 indicated that the appellant and
the respondent were known to each other for about 7 to 8 years prior to         D
the transaction in question. In that view, in the year 1996 the respondent
approached the appellant, explained his financial difficulties and due to
his financial need, offered to sell the property situate in Sirsi. In that
light, the price was finalised at Rs. 4,00,000/-(Rupees four lakhs only)
and on executing an agreement dated 06.06.1996 (Exhibit P-6), the               E
advance amount of Rs. 3,50,000/-(Rupees three lakhs fifty thousand
only) was paid. The balance amount of Rs. 50,000/- (Rupees fifty
thousand only) was to be paid at the time of registration and the transaction
was to be completed within six months. It is alleged that the respondent
kept on postponing the registration on one pretext or the other. Therefore,
on an enquiry the appellant learnt that the property was in fact in the         F
name of the father of the respondent and the respondent was not the
absolute owner. Since the respondent was not authorised to sell, the
appellant proceeded to cancel the agreement and demanded to pay back
the advance amount. In that view, the cheque dated 17.05.1998 (Exhibit
P-2) was drawn by the respondent for the sum of Rs. 1,50,000/- (Rupees          G
one lakh fifty thousand only) which was towards part of the advance
amount paid by him. The cheque on being presented was however
dishonoured. The memo issued by the bank was marked as Exhibit P-3.
The notice issued by the appellant and the postal receipt was marked as
Exhibits P-4 and P-5. The respondent did not choose to tender any rebuttal
                                                                                H
196            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     evidence in the Court of JMFC, though he disputed the incriminating
      circumstances which were put to him while recording the statement
      under Section 313 of the CrPC.
             7. In that background, the learned JMFC on taking note that the
      signature on the agreement dated Exhibit P-6, more particularly on the
B     cheque at Exhibit P-2 being admitted, it raised presumption under Section
      118 and 139 of the N.I. Act, which had not been rebutted. Therefore,
      the learned JMFC convicted the respondent. As noted, the learned
      Sessions Judge on re-appreciating the evidence had confirmed the
      conviction and sentence. The respondent however put forth the contention
      in the Revision Petition only at the time of argument, that the appellant
C     did not pay the amount but his signature had been secured on the cheque
      (Exhibit P-2) and the agreement (P-6) under peculiar circumstances. It
      was contended on his behalf that he was a party to a case in the Court
      of the Civil Judge, Sirsi wherein he had engaged the services of an
      advocate by name Mr. Rama Joshi. It was his further case that Mr.
D     Vishwanath Hegde who is the junior of Mr. Rama Joshi happens to be
      the relative of the appellant herein. He, thus being in a dominant position
      had obtained the signature.
            8. The learned Single Judge having accepted the said contention
      which was raised in the Revision for the first-time during arguments
E     proceeded to hold that the appellant had not discharged the burden of
      proving that he had paid Rs. 3,50,000/- (Rupees three lakhs fifty thousand
      only) to the respondent and that the cheque had been issued towards
      payment of a part of the same. The learned Single Judge was also of the
      opinion that the agreement at Exhibit P-6 cannot be believed, as well.

F             9. Mr. Rajesh Inamdar, the learned counsel appearing on behalf
      of the appellant has contended that the signature on the documents at
      Exhibit P-6 and the cheque at Exhibit P-2 is not disputed by the
      respondent. In that view, it is contended that the learned JMFC was
      justified in raising a presumption against the respondent and convicting
      him since there was no rebuttal evidence or contrary material whatsoever.
G     It is contended that the document at Exhibit P-6 was relied to indicate
      that there was a transaction entered into between the parties towards
      which the payment was made but the manner in which the High Court
      has adverted to the said document is beyond the scope of the requirement
      in a proceeding under Section 138 of the N.I. Act. In that circumstance,
H     it is contended that the learned Single Judge has proceeded at a tangent
                 TRIYAMBAK S. HEGDE v. SRIPAD                                  197
                      [A. S. BOPANNA, J.]

and has set aside the concurrent judgments of the courts below, though         A
limited scope was available in a Revision Petition.
       10. Mr. G.V. Chandrasekar, the learned counsel for the respondent
submitted that the trial court and the lower appellate court has not
examined the case in its correct perspective. Instead, merely because
the signature on the cheque was admitted the courts jumped to the              B
conclusion by raising a presumption, though there was no evidence on
record to show that the appellant possessed the funds and the same had
been actually paid by him to the respondent to constitute legally
recoverable debt. It is contended that the High Court was justified in
examining and concluding with regard to the circumstance under which
the cheque had been signed and, in that light, had set aside the conviction.   C
The order therefore does not call for interference is his contention.
       11. From the facts arising in this case and the nature of the rival
contentions, the record would disclose that the signature on the documents
at Exhibits P-6 and P-2 is not disputed. Exhibit P-2 is the dishonoured
cheque based on which the complaint was filed. From the evidence               D
tendered before the JMFC, it is clear that the respondent has not disputed
the signature on the cheque. If that be the position, as noted by the
courts below a presumption would arise under Section 139 in favour of
the appellant who was the holder of the cheque. Section 139 of the N.I.
Act reads as hereunder: -                                                      E
      “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.”
      12. Insofar as the payment of the amount by the appellant in the         F
context of the cheque having been signed by the respondent, the
presumption for passing of the consideration would arise as provided
under Section 118(a) of N.I. Act which reads as hereunder: -
      “118. Presumptions as to negotiable instruments – Until
      the contrary is proved, the following presumptions shall be made:-       G
      (a) of consideration – that every negotiable instrument was made
          or drawn for consideration, and that every such instrument,
          when it has been accepted, indorsed, negotiated or transferred,
          was accepted, indorsed, negotiated or transferred for
          consideration.”                                                      H
198            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A            13. The above noted provisions are explicit to the effect that such
      presumption would remain, until the contrary is proved. The learned
      counsel for the appellant in that regard has relied on the decision of this
      court in K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr. (1999)
      7 SCC 510 wherein it is held as hereunder: -
B           “9. As the signature in the cheque is admitted to be that of the
            accused, the presumption envisaged in Section 118 of the Act can
            legally be inferred that the cheque was made or drawn for
            consideration on the date which the cheque bears. Section 139 of
            the Act enjoins on the Court to presume that the holder of the
            cheque received it for the discharge of any debt or liability. The
C           burden was on the accused to rebut the aforesaid presumption.
            The Trial Court was not persuaded to rely on the interested
            testimony of DW-1 to rebut the presumption. The said finding
            was upheld by the High Court. It is not now open to the accused
            to contend differently on that aspect.”
D            14. The learned counsel for the respondent has however referred
      to the decision of this Court in Basalingappa vs. Mudibasappa
      (2019) 5 SCC 418 wherein it is held as hereunder: -
            “25. We having noticed the ratio laid down by this Court in the
            above cases on Sections 118 (a) and 139, we now summarise the
E           principles enumerated by this Court in following manner:
            25.1. Once the execution of cheque is admitted Section 139 of
            the Act mandates a presumption that the cheque was for the
            discharge of any debt or other liability.

F           25.2. The presumption under Section 139 is a rebuttable
            presumption and the onus is on the accused to raise the probable
            defence. The standard of proof for rebutting the presumption is
            that of preponderance of probabilities.
            25.3. To rebut the presumption, it is open for the accused to rely
            on evidence led by him or the accused can also rely on the materials
G
            submitted by the complainant in order to raise a probable defence.
            Inference of preponderance of probabilities can be drawn not
            only from the materials brought on record by the parties but also
            by reference to the circumstances upon which they rely.

H
                TRIYAMBAK S. HEGDE v. SRIPAD                                 199
                     [A. S. BOPANNA, J.]

      25.4. That it is not necessary for the accused to come in the          A
      witness box in support of his defence, Section 139 imposed an
      evidentiary burden and not a persuasive burden.
      25.5. It is not necessary for the accused to come in the witness
      box to support his defence.
      26. Applying the preposition of law as noted above, in facts of the    B
      present case, it is clear that signature on the cheque having been
      admitted, a presumption shall be raised under Section 139 that the
      cheque was issued in discharge of debt or liability. The question
      to be looked into is as to whether any probable defence was raised
      by the accused. In cross-examination of PW1, when the specific         C
      question was put that cheque was issued in relation to loan of
      Rs.25,000 taken by the accused, PW1 said that he does not
      remember. PW1 in his evidence admitted that he retired in 1997
      on which date he received monetary benefit of Rs.8 lakhs, which
      was encashed by the complainant. It was also brought in the
      evidence in the evidence that in the year 2010, the complainant        D
      entered into a sale agreement for which he paid an amount of
      Rs.4,50,000 to Balana Gouda towards sale consideration. Payment
      of Rs.4,50,000 being admitted in the year 2010 and further payment
      of loan of Rs.50,000 with regard to which Complaint No.119 of
      2012 was filed by the complainant, copy of which complaint was         E
      also filed as Ext. D-2, there was burden on the complainant to
      prove his financial capacity. In the year 2010-2011, as per own
      case of the complainant, he made payment of Rs.18 lakhs. During
      his cross-examination, when financial capacity to pay Rs. 6 lakhs
      to the accused was questioned, there was no satisfactory reply
      given by the complainant. The evidence on record, thus, is a           F
      probable defence on behalf of the accused, which shifted the
      burden on the complainant to prove his financial capacity and
      other facts.”
       15. In that light, it is contended that the very materials produced
by the appellant and the answers relating to lack of knowledge of property   G
details by PW-1 in his cross- examination would indicate that the
transaction is doubtful and no evidence is tendered to indicate that the
amount was paid. In such event, it was not necessary for the respondent
to tender rebuttal evidence but the case put forth would be sufficient to
indicate that the respondent has successfully rebutted the presumption.      H
200             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A            16. On the position of law, the provisions referred to in Section
      118 and 139 of N.I. Act as also the enunciation of law as made by this
      Court needs no reiteration as there is no ambiguity whatsoever. In,
      Basalingappa vs. Mudibasappa (supra) relied on by the learned
      counsel for the respondent, though on facts the ultimate conclusion therein
      was against raising presumption, the facts and circumstances are entirely
B
      different as the transaction between the parties as claimed in the said
      case is peculiar to the facts of that case where the consideration claimed
      to have been paid did not find favour with the Court keeping in view the
      various transactions and extent of amount involved. However, the legal
      position relating to presumption arising under Section 118 and 139 of
C     N.I. Act on signature being admitted has been reiterated. Hence, whether
      there is rebuttal or not would depend on the facts and circumstances of
      each case.
              17. In the instant facts, as noted, the case put forth was that there
      was a transaction between the parties where the respondent had agreed
D     to sell the house towards which an advance amount of Rs.3,50,000/-
      (Rupees three lakhs fifty thousand only) was paid. The cheque issued
      by the respondent was towards part repayment of the advance amount
      since the appellant realized that the respondent did not have proper title
      to the property and the transaction could not be carried forward. Since
      the signature on the agreement (Exhibit P-6) and more particularly the
E     dishonored cheque (Exhibit P-2) was not disputed, the presumption as
      provided in law had arisen. Such presumption would remain till it is
      rebutted. The question however is as to whether, either from the material
      available on record or the nature of contentions put forth it could be
      gathered that the presumption had been rebutted by the respondent. As
F     noted by the High Court, the contention of the respondent was that the
      relative of the appellant was the junior in the office of his advocate, Mr.
      Rama Joshi, who represented the respondent in a civil case. In that light,
      it was further contended that due to such dominant position, the respondent
      was made to sign on the agreement and the cheque though the money
      had not been paid. The said story was urged for the first time before the
G     High Court. There is no such suggestion or admission to that effect as
      contended by the learned counsel for the respondent. In fact, the
      suggestion made to PW1 in his cross-examination is to contend that the
      cousin of the appellant was an advocate and as to whether he had
      consulted him before entering into the agreement, to which PW1 has
H     answered that he did not find the need to do so. The admission that his
                 TRIYAMBAK S. HEGDE v. SRIPAD                                  201
                      [A. S. BOPANNA, J.]

cousin is an advocate does not lead to the conclusion that he had admitted     A
that he was in a dominant position.
       18. The Learned Single Judge however while accepting the said
story has referred to certain discrepancies in the agreement (Exhibit P-
6) relating to the details of the property and the appellant having admitted
with regard to not having visited the property or having knowledge of          B
the location of the property. Such consideration, in our opinion, was not
germane and was beyond the scope of the nature of litigation. The validity
of the agreement in the manner as has been examined by the learned
Single Judge may have arisen if the same was raised as an issue and
had arisen for consideration in a suit for specific performance of the
agreement. The decision in K. Chinnaswamy Reddy vs. State of Andhra            C
Pradesh and Anr. AIR 1962 SC 1788 relied on by the learned counsel
for the respondent would not be of assistance in the present facts. Firstly,
in the said decision this Court has expressed the limited power available
to the High Court in Revision Petition. Even otherwise, we have
disapproved the manner in which the learned Single Judge has proceeded         D
to examine the matter on contentions which were not raised as a
foundation before the Trial Court. In the instant case, the said agreement
(Exhibit P-6) had been relied upon only to the limited extent to indicate
that there was a transaction between the parties due to which the amount
to be repaid had been advanced. To that extent the document had been
proved in evidence and such evidence had not been discredited in the           E
cross-examination.
        19. Further, though the respondent had put forth the contention
that a relative of the appellant was the junior of his advocate and he has
used his dominant position to secure the signature on the cheque, there
is absolutely no explanation whatsoever to indicate the reason for which       F
such necessity arose for him to secure the signatures of the respondent,
if there was no transaction whatsoever between the parties. That apart,
the said story even to be examined was put forth for the first time before
the High Court. As is evident from the records the notice issued by the
appellant intimating the dishonorment of the cheque and demanding              G
payment, though received by the respondent has not been replied. In
such situation, the first opportunity available to put forth such contention
if true was not availed. Even in the proceedings before the learned JMFC,
the respondent has not put forth such explanation in the statement
recorded under Section 313 of CrPC nor has the respondent chosen to
                                                                               H
202             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     examine himself or any witness in this regard. The said contention had
      not been raised even in the appeal filed before the learned Sessions
      Judge.
              20. Further, the story as put forth apart from being an afterthought,
      ex facie appears to be contrary to the records since the contention on
B     behalf of the respondent is that the dominant position of the junior
      advocate in the office of Mr. Rama Joshi was used to secure the signature
      when the respondent had engaged the said advocates in an earlier civil
      case. From the cause title in the present case, in Criminal Case No.790/
      2000 before the JMFC, it is seen that Mr. Rama Joshi is the same learned
      advocate who had defended the respondent in this litigation. If what
C     was being stated was the true fact, the respondent would have brought
      the same to the notice of the said advocate and in such situation would
      not have engaged the same advocate against whose junior he had a
      grievance and engage him to represent the case relating to dishonor
      cheque which was of the same subject matter. Further, if the cheque
D     was secured in such circumstance and was not voluntary, it is difficult to
      comprehend as to why it would have been drawn for Rs.1,50,000/-
      (Rupees one lakh fifty thousand only) only when it is the case of the
      appellant that the advance amount paid was Rs.3,50,000/-(Rupees three
      lakh fifty thousand only) and had to get back the entire advance paid.
      The natural conduct would have been to secure for the full amount if
E     that was the situation. Keeping all these aspects in view, the case put
      forth by the respondent does not satisfy the requirement of rebuttal even
      if tested on the touchstone of preponderance of probability. Therefore,
      in the present facts it cannot be held that the presumption which had
      arisen in favour of the appellant had been successfully rebutted by the
F     respondent herein. The High Court therefore was not justified in its
      conclusion.
              21. Having arrived at the above conclusion, it would be natural to
      restore the judgment of the Learned JMFC. Though in that regard, we
      confirm the order of conviction, we have given our thoughtful
      consideration relating to the appropriate sentence that is required to be
G     imposed at this stage, inasmuch as; whether it is necessary to imprison
      the respondent at this point in time or limit the sentence to imposition of
      fine. As noted, the transaction in question is not an out and out commercial
      transaction. The very case of the appellant before the Trial Court was
      that the respondent was in financial distress and it is in such event, he
H     had offered to sell his house for which the advance payment was made
                 TRIYAMBAK S. HEGDE v. SRIPAD                                     203
                      [A. S. BOPANNA, J.]

by the appellant. The subject cheque has been issued towards repayment            A
of a portion of the advance amount since the sale transaction could not
be taken forward. In that background, what cannot also be lost sight of
is that more than two and half decades have passed from the date on
which the transaction had taken place. During this period there would
be a lot of social and economic change in the status of the parties. Further,
                                                                                  B
as observed by this Court in Kaushalya Devi Massand vs. Roopkishore
Khore (2011) 4 SCC 593, the gravity of complaint under N.I. Act cannot
be equated with an offence under the provisions of the Indian Penal
Code, 1860 or other criminal offences. In that view, in our opinion, in the
facts and circumstances of the instant case, if an enhanced fine is imposed
it would meet the ends of justice. Only in the event the respondent-              C
accused not taking the benefit of the same to pay the fine but committing
default instead, he would invite the penalty of imprisonment. Hence,
appropriate modification is made to the sentence in the manner as
indicated hereinbelow:
       22. For all the aforestated reasons, the following order;                  D
       (i) The order dated 01.12.2009 passed by the High Court in
              Criminal Revision Petition No. 1282/2006 and 1481/2006
              are set aside.
       (ii) The conviction ordered in C.C. No.790/2000 by the learned
              JMFC is restored.
                                                                                  E
        (iii) The sentence to undergo simple imprisonment for six months
              and fine of Rs.2,00,000/- (Rupees two lakhs only) is however
              modified. The Respondent/Accused is instead sentenced to
              pay the fine of Rs. 2,50,000/- (Rupees two lakhs fifty
              thousand only) within three months. In default of payment
              of fine the Respondent/Accused shall undergo simple                 F
              imprisonment for six months.
        (iv) From the fine amount, a sum of Rs. 2,40,000/- (Rupees two
              lakhs forty thousand only) shall be paid to the Appellant/
              Complainant as compensation.
        (v) The Appeals No. 849-850/2011 are accordingly allowed in               G
              part.
       (vi) The pending applications, if any, stand disposed of.

Ankit Gyan                                              Appeals partly allowed.
                                                                                  H