LexBIR SINGH versus MUKESH KUMAR
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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SUPREME COURT REPORTS [2019] 2 S.C.R.
BIR SINGH
v.
MUKESH KUMAR
(Criminal Appeal Nos. 230-231 of 2019)
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,
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
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
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
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
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.
[2019] 2 S.C.R. 24
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Evidence:
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.
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
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
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
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
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
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]
BIR SINGH v. MUKESH KUMAR
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SUPREME COURT REPORTS [2019] 2 S.C.R.
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
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.
2.1 The object of Chapter XVII of the Negotiable
Instruments Act is both punitive as also cExcerpt shown. Read the full judgment & AI analysis in Lexace.