2015 (2) TMI 1066 - HC - Indian Laws

Cheque dishonored - compliant under Section 138 r.w.s 142 of the Negotiable Instruments Act, 1881 as amended by Act 68 of 1988 and 55 of 2002 read with Section 200 Cr.P.C. - cheque in question got dishonoured, a statutory notice was sent by the respondent/complainant, for which, the revision petitioner/accused did not send any reply - Held that - It is well settled position of law that a case under Section 138 of the Negotiable Instruments Act, is to be decided on preponderance of probabilities and in the considered opinion of this Court, the defence projected by the revision petitioner/accused, in the present facts and circumstances of the case, would not appear to be probable. Both the Courts below recorded the concurrent findings that the revision petitioner/accused has committed the offence under Section 138 of the Negotiable Instruments Act and in the absence of any infirmity or perversity in the findings recorded by the Courts below, this Court, in exercise of it s revisional power, cannot interfere with the same. In the result, this Criminal Revision Case is dismissed, confirming the conviction recorded by trial Court, as confirmed by the lower appellate Court. However, taking into consideration the fact that the revision petitioner/accused is employed as a Conductor in the services of the Tamil Nadu State Transport Corporation, is inclined to reduce the sentence from one year rigorous imprisonment to three months rigorous imprisonment. Accordingly, the sentence of imprisonment of one year rigorous imprisonment is reduced to three months rigorous imprisonment and the sentence of imposition of fine with default sentence is maintained. Consequently, the connected miscellaneous petitions are dismissed.

Summary

Issues:
Accused's knowledge of the complainant, misuse of the cheque, rejection of additional evidence, conviction under Section 138 of the Negotiable Instruments Act, concurrent findings of the trial and appellate courts.

Accused's Knowledge of the Complainant:
The accused claimed not to know the complainant and alleged that a cheque issued to another person was misused. However, the complainant sent a statutory notice after the cheque bounced, to which the accused did not respond. The accused's defense was that he did not issue the cheque to the complainant, but to someone else. The court noted that the accused had the opportunity to examine himself and present the other person as a witness but did not do so. The court found the defense not probable and upheld the lower courts' findings.

Misuse of the Cheque:
The accused argued that the cheque was filled in favor of the complainant without his knowledge. He contended that the complainant lacked the means to lend the amount and that the loan was not reflected in the complainant's income tax returns. The court clarified that the absence of loan details in tax returns does not negate the loan's existence. The accused failed to provide substantial evidence to support his claim of misuse, leading to the dismissal of his defense.

Rejection of Additional Evidence:
The accused sought to introduce additional evidence in the lower appellate court, which was rejected. The appellate court upheld the trial court's decision based on the existing evidence. The accused's argument that the rejection was erroneous was not accepted by the higher court, emphasizing that revisional power has limitations and cannot interfere with concurrent findings unless there are clear errors.

Conviction under Section 138 of the Negotiable Instruments Act:
The trial court found the accused guilty under Section 138 of the Negotiable Instruments Act for dishonoring the cheque and sentenced him to imprisonment and a fine. The appellate court affirmed this decision, leading to the accused filing a criminal revision case. The higher court, after reviewing the evidence and arguments, upheld the conviction but reduced the sentence due to the accused's employment as a Conductor in the Tamil Nadu State Transport Corporation.

Concurrent Findings of the Trial and Appellate Courts:
Both the trial and appellate courts reached concurrent findings that the accused committed the offense under Section 138 of the Negotiable Instruments Act. The higher court, after careful consideration, affirmed these findings, stating that there were no significant flaws or errors in the lower courts' decisions. Consequently, the criminal revision case was dismissed, and the conviction and fine were upheld, with a reduction in the sentence to three months of rigorous imprisonment due to the accused's employment circumstances.