Punita Rai vs State Of Jharkhand And Ors

The petitioner has suffered judgment dated 05.03.2013 in Complaint Case No.1265 of 2008 under which she has been found guilty under section

138 of the Negotiable Instruments Act, 1881. The learned Magistrate has inflicted sentence of S.I for three months and fine of Rs.10 Lacs upon her.

Against the judgment in Complaint Case No.1265 of 2008, she has preferred Cr. Appeal No.88 of 2013 which was dismissed vide judgment dated

28.07.2016.

Three-fold submissions have been raised by Mr. Indrajit Sinha, the learned counsel for the petitioner: (i) Rs.7 Lacs which according to the

complainant was given to the petitioner as loan is not a legal debt or liability under section 138 of the Negotiable Instruments Act in face of the

prohibition under section 3 and 4 of the Bihar Money Lenders Act, 1974, (ii) the defence of the accused, which she has shown was a probable

defence, was not considered by the courts below, and (iii) in view of the discretion vested in the court sentence of S.I for three months in view of the

old age of the petitioner, who is a woman, is not justified and instead she should have been sentenced to enhanced amount of fine.

To fortify his contention on presumption under section 139 of the Negotiable Instruments Act, 1881, the learned counsel for the petitioner has relied

on the judgment in “Basalingappa Vs. Mudibasappaâ€​ reported in (2019) 5 SCC 418.

Under the Bihar Money Lenders Act, 1974 loan is defined under section 2(j) to mean a loan on interest advanced by a money lender, whether of

money or in kind and shall include mandeorha, sawaiya, rehan, Bandhak, pauni, sundbharna, kishti and any transaction on a bond bearing interest

executed in respect of a past liability and any transaction which, in substance, is a loan but shall not include-(i) a loan advanced by the State

Government or by any local body authorised by the State Government; (ii) a deposit of money in a Post Officer Saving Bank or a deposit of money or

any other property in any other bank or on any Company or with a Co-operative Society registered, or deemed to be registered, under the Bihar and

Orissa Co-operative Societies Act, 1935.

In terms of section 4, a money lender is required to be registered under Anchal Adhikari or such other Officer as may be appointed by the State

Government. The stand taken by the petitioner is that the hand-note allegedly executed by the petitioner contains a stipulation that on the amount of

Rs.7 Lacs she is required to pay interest and, therefore, the complainant who is not a registered money lender has entered into an illegal transaction

and, therefore, the amount of Rs.7 Lacs is not a legal debt or liability payable by the petitioner.

In the first place, no such plea was raised by the petitioner before the courts below rather the petitioner has denied execution of the hand-note on

non-judicial stamp paper vide Ext.1 saying that she was made to sign on blank judicial paper. The plea raised by the learned counsel for the petitioner

would arise only if the petitioner owns the hand-note and not otherwise. Moreover, the complaint case instituted by the opposite-party is for Rs.7 Lacs

which is the principal amount and not for the interest component.

The above being the factual scenario, I find no substance in the contention raised by the learned counsel for the petitioner on the legality of the

transaction.

Like other presumptions under different statutes, presumption under section 139 of the Negotiable Instruments Act, 1881 is also not conclusive.

Section 3 of the Evidence Act defines the expression “provedâ€, “disproved†and “not provedâ€. A fact is said to be proved when after

considering the matters before it the court either believes it to exist or considers its existence so probable that a prudent man ought, under the

circumstances of the particular case, to act upon the supposition that it exists. The presumption under section 139 of the Negotiable Instruments Act is

a rebuttal presumption. In “M.S. Narayana Menon Vs. State of Kerala†reported in (2006) 6 SCC 3,9 it has been held that the expression

“shall presume†occurring under section 139 of the Negotiable Instruments Act is not synonymous with “conclusive proofâ€. In the said case,

the Supreme Court has observed as under:

“The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not

only from the materials on record but also by reference to the circumstances upon which he relies.â€​

In “Krishna Janardhan Bhat Vs. Dattatraya G. Hegde†reported in (2008) 4 SCC 5,4 the Supreme Court has held that so as to prove his

defence all that an accused is required to show is preponderance of probability. An inference of preponderance of probability can be drawn not only

from the materials brought on record by the parties but also by reference to the circumstances upon which he relies. The judgment in

“Basalingappaâ€​ proceeds on the similar lines and in paragraph no.25 of the reported judgment, the Supreme Court has observed as under:

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.

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 accused can also rely on the materials 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.

25.4 That it is not necessary for the accused to come in the 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.

The expression “preponderance of probability†has not been defined in any statute, however, in my opinion, it cannot be mere pretence of an

accused. This expression refers to a positive finding on facts which are referable to probability of a situation which is more likely to happen, but it is

not just a possibility. An accused can show from evidence of the prosecution or by leading evidence himself that the case set up by him is a probable

one. To show that the defence set up by him is probable one the accused must show from the prosecution's evidence or by leading such cogent

evidence which would prima-facie disclose a strong probability of the defence set up by him. In the present case, all that the accused-petitioner has

done is to elicit in cross-examination of the complainant that there was a General Body Meeting of Netaji Grih Nirman Swavlambi Sahakari Samiti

Limited held on 20.01.2008. Besides this, she has filed a copy of the complaint case C1316 of 2008 and examined D.W.1 as a witness to show that

the amount of Rs.7 Lacs was given by her to the complainant pursuant to an agreement for purchase of a land which was allotted by the Samiti in

favour of her husband, however, subsequently it was sold to some other person.

Section 59 of the Evidence Act, 1872 provides that all facts, except the contents of documents or electronic records may be proved by oral

evidence and section 60 provides that oral evidence, in all cases, must be direct i.e. it must be the evidence of a witness, who says he saw it. In

Compliant Case No. 1316 of 2008, the petitioner has not disclosed the date when an agreement was entered into between her and the complainant.

She has also not disclosed the date when she has visited office of the Netaji Grih Nirman Swavlambi Sahakari Samiti Limited and where he has given

a cheque of Rs.7 Lacs bearing number 371363, the cheque in question, to the complainant. Admission of the complainant in his cross-examination

about convening of the General Body Meeting of Netaji Grih Nirman Swavlambi Sahakari Samiti Limited on 20.01.2008 is a fact but beyond this

nothing has been shown by the petitioner which would corroborate the defence set up by her.

During the trial, genuineness of the cheque for Rs.7 Lacs bearing number 371363 dated 15.04.2008 was not disputed by the accused. The cheque

was presented in HDFC Bank and it was returned unpaid on account of insufficiency of fund has been established during the trial. The plea on

friendly loan taken by the petitioner which according to her would not become a legal debt or liability stands answered against her by a decision of the

Supreme Court in “Bir Singh Vs. Mukesh Kumar†reported in (2019) 4 SCC 19.7 The plea urged on behalf of the accused on legality of the

judgment in Complaint Case No.1265 of 2008 delivered by another Magistrate has not been pressed by the learned counsel for the petitioner and the

issue on validity of service of legal notice on the accused has been correctly dealt with by the appellate court in paragraph no.19 of the judgment.

In the aforesaid state of affairs, I do not find any illegality in the judgment of conviction of the petitioner under section 138 of the Negotiable

Instruments Act, 1881, however, on the question of sentence I am inclined to accept submission of the learned counsel for the petitioner. Under

section 138 of the Negotiable Instruments Act an accused can be sentenced to imprisonment for a term which may extend to two years, or with fine

which may extend to twice the amount of the cheque, or with both. Keeping in view the wide discretion vested in the court through judicial decisions it

has been held that before sentence is awarded to an accused the aggravating circumstances as well as the mitigating circumstances both should be

considered by the court. In the judgment dated 05.03.2013 in Complaint Case No.1265 of 2008 and the judgment dated 28.07.2016 in Cr. Appeal

No.88 of 2013, I do not find any discussion on the aggravating vis-a-vis mitigating circumstances in the case. In fact, the order of sentence which is of

the same day when the judgment of conviction was passed records the plea urged on behalf of the accused. The accused-petitioner is a lady, now

aged about 56 years, with grown up children. On behalf of the petitioner, an affidavit has been filed to the effect that on account of her ailment she

has been referred to RIMS for treatment.

In his rejoinder to the supplementary-affidavit dated 14.11.2019 filed by the petitioner, O.P. No.2 has pleaded as under:

“That it is pertinent to mention here that the petitioner herself proposed to settle the dispute with Opposite Party No.2 for which time

was accorded by this Hon'ble Court to swear an affidavit in this regard.

That the petitioner has filed supplementary affidavit pursuant to the order dated 25.10.2019 passed by this Hon'ble Court stating inter-

alia that the petitioner is desirous of settling the matter and is ready to pay the Cheque amount to the tune of Rs.7,00,000/- in favour of the

Complainant name Kanhaiya Lal Sahni.

That the Opposite party No.2 submits that pursuant to the Judgment dated 05.03.2013 passed in Complaint Case No.1265/2008, the

learned Court below convicted the petitioner/accused and directing to pay a fine for a sum of Rs.10,00,000/- alongwith simple imprisonment

for a period of three months which was affirmed in Criminal Appeal No.88/2013 vide its judgment dated 28.07.2016.

That the petitioner humbly states and submits that this Hon'ble court may direct the petitioner to pay a sum of Rs.10,00,000/- as directed

by the learned court below and further direct the petitioner to pay a statutory interest from the year 2008 (issuance of Cheque to the

Complainant Cheque No.371363 drawn on H.D.F.C Bank, Ranchi) till the final realization of the sum of Rs.10,00,000/- in the interest of

justice.â€​

To recapitulate, on 25.10.2019 the following order was passed by this Court:

“Mr. Arpan Mishra, the learned counsel for the petitioner submits that the petitioner is ready to settle the dispute with O.P No. 2. The

learned counsel for the petitioner submits that the petitioner shall file an affidavit on this issue.

On his request, post the matter on 22.11.2019.â€​

From the aforesaid affidavit of O.P. No.2, all that can be gathered is that as a condition for compromise O.P. No.2 wants interest on the amount

of Rs.10 Lacs from the year, 2008.

In such view of the matter, I am inclined to interfere with the order of sentence dated 05.03.2013, as affirmed by the appellate court.

Upon due consideration of the materials brought on record, I am of the opinion that it would serve the interest of justice if the sentence of S.I for

three years with fine of Rs.10 Lacs inflicted upon the petitioner is modified to sentence of fine of Rs.10 Lacs with simple interest @ 5% per annum

from the date of judgment in Complaint Case No.1265 of 2008 till 30.08.2016, the date when this criminal revision petition was filed. The total amount

of fine shall be deposited on or before 06.03.2020 and O.P. No.2 may choose to be present in the Court on that day to receive the amount of fine.

Cr. Rev. No.1127 of 2016 is partly allowed, in the above terms.