JOHN K. JOHN versus TOM VARGHESE AND ANR.

Citation: [2007] 11 S.C.R. 287 · Decided: 12-10-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

.. 
\ 
JOHN K. JOHN 
v. 
TOM VARGHESE AND ANR. 
OCTOBER 12, 2007 
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.] 
Negotiable Instruments Act; Ss. I 38 and I 39/Constitution of 
India, 1950; Article 136: 
A 
B 
Dishonour of cheques-Cheques allegedly issued by respondent C 
in discharge of existing debt-Notice-No payment made by 
respondent-Complaints-Trial Court found that respondent 
committed an offence punishable u/s. I 38 of the Act and sente11:ced 
him accordingly-Upheld by first appellate Court-Reversed by Single 
Judge of the High Court acquitting respondent-On appeal, Held: D 
Presumption raised in terms of Section 139 of the Act rebuttable-ln 
the instant case, a finding of fact has been arrived at by the High Court 
that cheques in question has not been issued by the respondent in 
discharge of any debt--Taking notice of the conduct of complainant, 
High Court found as of fact that complainant did not approach this E 
Court with clean hands-View of the High Court cannot be said to be 
perverse warranting inte1ference by the Supreme Court in exercise of 
its discretionary jurisdiction under Article I 36 of the Constitution. 
Exercise of discretionary jurisdiction by Supreme Court under 
Article 136 of the Constitution-Judgment of acquittal-Interference F 
with-Held: Ordinarily not interfere with. 
Respondent allegedly issued two cheques in favour of the 
appellant. These cheques, when presented to the Bank, were 
dishonoured for want ofinsufficient funds. It was alleged that despite 
service of notice, the respondent did not make any payment, G 
therefore, two complaint petitions were filed against him by the 
appellant. Appellant, who used to run chitties, further alleged that 
despite the fact that the respondent was a defaulted subscriber of 
two prized chitties, who took personal loan from him. Trial Court 
287 
H 
288 
SUPREME COURT REPORTS 
[2007] 11 S.C.R. 
A proceeded on the basis that as admittedly cheques have been issued 
by the respondent which on presentation were not honoured, he 
committed an offence under Section 138 of the Negotiable 
Instruments Act. The finding of the trial Court was upheld in appeal 
by the Additional Sessions Judge. The High Court, however, in the 
B revision application filed by the respondent held that the appellant 
did not succeed in proving that the respondent had borrowed any 
sum for which the cheques were issued. Hence, the present appeal. 
Appellant contended that the High Court was not correct in 
reversing the findings of the trial Court as also the first appellate 
C Court in exercise of its revisional jurisdiction; that there was no 
reason as to why a presumption in terms of Section 139 of the Act 
could not have been raised against the accused as admittedly the 
cheques were issued by him which, on presentation, were 
dishonoured. 
D 
Dismissing the appeals, the Court 
HELD: 1.1. Presumption raised in terms of Section 139 of the 
Negotiable Instruments Act is rebuttable. If, upon analysis of the 
evidence brought on records by the parties, in a fact situation 
obtaining in the instant case, a finding of fact has been arrived at by 
E the High Court that the cheques had not been issued by the 
respondent in discharge of any debt, the view of the High Court 
cannot be said to be perverse warranting interference by this Court 
in exercise of the discretionary jurisdiction under Article 136 of the 
Constitution oflndia. The High Court was entitled to take notice of 
F 
the conduct of the parties. It has been found by the High Court as of 
fact that the complainant did not approach the Court with clean 
hands. His conduct was not that of prudent man. Why no instrument 
was executed although a huge sum of money was allegedly paid to 
the respondent was a relevant question which could be posed in the 
G matter. It was open to the High Court to draw its own conclusion 
therein. Not only no document had been execut~d, even no interest 
had been charged. It would be absurd to form an opinion that despite 
knowing that the respondent even was not in a position to discharge 
his burden to pay instalments in respect of the prized amount, an 
H advance would be made to him and that too even after institution of 
( 
t 
JOHNK.JOHNv. TOMVARGHESE[SINHA,J.] 
289 
three civil suits. The amount advanced even did not car.ry any A 
interest. Ifin a.situation of this nature, the High Court has arrived 
at a finding that the respondent has discharged his burden of proof 
cast on him under

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