| Headnote |
Negotiable Instruments Act, 1881 – ss. 118 and 139 – The case of the appellant was that the respondent approached him to sell 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 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 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 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 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 thesignature 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 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 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 conviction by JMFC is confirmed – However, the sentence is modified, the respondent sentenced to pay fine of Rs.2,50,000/- only. |
