Section 138 NI Act- 'Amount Due' Not Required To Be Proved As If Proving Debt Before Civil Court: SC [Read Judgment]
The Supreme Court has observed that a complainant in a cheque bounce case need not prove the 'amount due' as if he is to prove a debt before civil court.
The case of the complainant was that the accused purchased apple crops from him and the accounts were finally settled between him and the authorised agent of accused and a sum of Rs.5,38,856/- was found recoverable. As the cheque bounced, a complaint was filed before the Trial Court.
The Trial Court dismissed the complaint for the reason that cheque amount was more than the amount alleged on the due date when cheque was presented. This finding was arrived by the trial court after seeing contradiction in the number of cartons in the complaint as well as in the statement of the complainant. The High Court upheld the acquittal recorded by the Trial Court.
In appeal filed by the complainant [Uttam Ram vs. Devinder Singh Hudan], the Apex Court bench of Justice L Nageswara Rao and Justice Hemant Gupta observed:
Both Courts not only erred in law but also committed perversity when the due amount is said to be disputed only on account of discrepancy in the cartons, packing material or the rate to determine the total liability as if the appellant was proving his debt before the Civil Court. Therefore, it is presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the appellant received the same in discharge of an existing debt. The onus, thereafter, shifts on the accused appellant to establish a probable defence so as to rebut such a presumption, which onus has not been discharged by the respondent.
It said that, once the agent of the accused has admitted the settlement of due amount and in absence of any other evidence the Trial Court or the High Court could not dismiss the complaint only on account of discrepancies in the determination of the amount due or oral evidence in the amount due when the written document crystalizes the amount due for which the cheque was issued. The difference in the number of cartons supplied or the rate charged is not relevant when the accounts were settled in writing to rebut the presumption of consideration of issuance of a cheque, the bench said.
Allowing the appeal and convicting the accused, the bench directed him to pay Rs.10,77,712/- as fine i.e. twice of the amount of cheque of Rs.5,38,856/- and a cost of litigation of Rs.1,00,000/- within three months. If the amount of fine and the costs are not paid within three months, he shall undergo imprisonment for a period of six months, it added.