Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2022 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (8) TMI 821 - HC - Indian LawsDishonor of Cheque - part amount recovered by complainant prior to the issuance of cheque by the accused, a fresh cheque should be issued - rebuttal of presumption - acquittal of the accused - HELD THAT - Once the issuance of the cheque and the signature thereupon is admitted, the presumption under Section 139 of the N.I. Act, is clearly attracted, and therefore, the burden, would shift upon the accused to show that either by way of cross-examination or by leading defence evidence, the presumption stood rebutted. In the instant matter admittedly no defence evidence has been led. The evidence of the complainant therefore assumes importance. The complainant, in his evidence has proved a document namely Exh. 42 (page 94) dated 15.06.2011 which is a communication issued by the accused, in favour of the complainant. A perusal of this communication, would indicate, that the accused in clear and specific terms, has admitted the relationship as indicated in the complaint - the existence of a legal liability for which the cheque in question was issued, as a result whereof the applicability of the presumption under Section 139 of the N.I. Act, stood justified. In case any part amounts are received post the dishonor, but prior to the notice of demand, the course contemplated by Section 56 of the N.I. Act, not being available, the prudent course would be to secure a fresh negotiable instrument for the balance and present it for realisation. However, many a times that does not happen, leaving the payee/holder of the cheque with the original cheque. Such part payment, at times, could also be mischievous with the intent to thwart the initiation of legal proceedings on the basis of the original cheque. In case part payment/s is made after the filing of the complaint, since the offence already stands completed in terms of Section 138(c) of the N.I. Act, and the proceedings have to go on, it would be appropriate, in case of conviction, for the learned Special Court, to direct compensation payable after taking into consideration, amounts received by the payee/holder of the cheque, till that time - The conduct of the complainant in disclosing recovery of part cheque amount, in the notice of demand itself, is an indicature of his bonafides and absence of malafides, for the reason that even the reply of the accused, does not address the statement made in the notice regarding recovery of Rs.40,500/- by the complainant, inspite of being aware that the accused had not made payment by letting the cheque be dishonored. Appeal allowed.
Issues Involved:
1. Whether the complainant was entitled to present the cheque despite recovering Rs.3,90,000/- prior to the issuance of the cheque. 2. Whether the presumption under Section 139 of the N.I. Act was rebutted. 3. Whether the cheque was issued for a legal debt or liability. 4. Whether the learned Sessions Court was justified in acquitting the accused. 5. The appropriate course of action when part payment is received before presenting the cheque. Issue-Wise Detailed Analysis: 1. Entitlement to Present the Cheque: The learned Sessions Court set aside the conviction on the ground that the complainant recovered Rs.3,90,000/- before the issuance of the cheque, thus he was not entitled to present it. However, the complainant argued that there was no evidence proving that the recovery was prior to the cheque issuance. The court found that no material evidence was presented by the accused to establish the date of recovery, and the complainant had disclosed the recovery of Rs.40,500/- in the demand notice, indicating no suppression. 2. Presumption under Section 139 of the N.I. Act: The presumption under Section 139 of the N.I. Act states that the cheque was issued for consideration and the holder received it in discharge of an existing debt. The accused admitted to issuing the cheque and his signature on it, invoking the presumption. The court held that the accused failed to rebut this presumption either through cross-examination or by leading defense evidence. 3. Cheque Issued for Legal Debt or Liability: The complainant provided evidence, including a letter dated 15.06.2011 (Exh.42), where the accused admitted liability and issued the cheque for Rs.14,72,799/-. The court found that the complainant's evidence was credible, and the accused's cross-examination did not effectively challenge the validity of Exh.42. Thus, the cheque was indeed issued for a legal debt. 4. Justification of Acquittal by the Sessions Court: The Sessions Court acquitted the accused based on the alleged prior recovery of Rs.3,90,000/-. However, the High Court found no evidence supporting this recovery before the cheque issuance. The court emphasized that the complainant's conduct was transparent, as he disclosed the recovery of Rs.40,500/- in the notice of demand. The High Court concluded that the Sessions Court's inference was unjustified and without basis. 5. Course of Action for Part Payment: The court discussed the appropriate actions when part payment is received before presenting the cheque. It suggested making an 'indorsement' on the cheque for the balance amount and presenting it for the lesser amount. This ensures the cheque remains valid for the balance due. The court referenced Section 56 of the N.I. Act, which allows for such indorsement and negotiation for the balance amount. Conclusion: The High Court quashed the Sessions Court's judgment and restored the Chief Judicial Magistrate's conviction. The court held that the complainant was entitled to present the cheque, the presumption under Section 139 was not rebutted, and the cheque was issued for a legal debt. The court provided guidance on handling part payments, emphasizing indorsement and negotiation for the balance amount. The appeal was allowed, and the judgment of the Chief Judicial Magistrate was enforced.
|