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2016 (1) TMI 1308 - HC - Indian LawsCheque bounced due to insufficient funds - onus to prove that cheque was given against legally enforceable debt - Complaint in question under section 138 of Negotiable Instruments Act, 1881 - Held that - Since the averment made in Ex.P.4 is totally contra to the evidence given by P.W.1, it is very clear that on the side of the complainant, inconsistent pleas have been raised. The defence put forth on the side of the accused is that the complainant has used to run a chit, wherein the accused has become one of its subscribers. Under the said circumstances, the cheque in question has been given to the complainant. Considering the fact that on 13.10.2011, a sum of ₹ 40,000/- has been given to the husband of the complainant, P.W.2, by the accused and the same has been withdrawn and also considering that with regard to source of money, no consistent evidence is available on the side of the complainant, the defence put forth on the side of the accused can very well be accepted. The trial court, without considering the payment of ₹ 40,000/- made on 13.10.2011 in favour of P.W.2 and also without considering that on the side of the complainant with regard to source of money, no consistent evidence is available, has erroneously found the accused guilty under section 138 r/w 142 of Negotiable Instruments Act, 1881. But, the first appellate court, after considering the vital infirmities found on the side of the complainant, has rightly found that the cheque in question has not been given in connection with legally enforceable debt. In view of the discussions made earlier, this Court has not found any merit in the contentions put forth on the side of the appellant/complainant and altogether, the present Criminal Appeal deserves to be dismissed.
Issues:
Challenge to order of acquittal under section 138 of Negotiable Instruments Act, 1881. Analysis: The judgment involves the challenge to an order of acquittal passed in a case under section 138 of the Negotiable Instruments Act, 1881. The complainant alleged that the accused, a friend, borrowed Rs. 5 Lakhs and issued a cheque which bounced due to insufficient funds. The trial court convicted the accused, sentencing imprisonment and imposing compensation. The accused appealed, leading to the first appellate court setting aside the conviction. The present Criminal Appeal challenges this dismissal. The appellant argued that the accused failed to provide documentary evidence supporting a defense claim of a chit fund, and the first appellate court erred in acquitting without considering this. The respondent contended that the cheque lacked consideration and was not connected to a legally enforceable debt. The appellant maintained that the accused received Rs. 5 Lakhs and issued the cheque. The evidence showed no other transactions between the parties except the one mentioned in the complaint. The appellant claimed that a statutory notice mentioned a hand loan, while the evidence indicated the money came from selling jewels. The accused's defense of the chit fund was supported by a withdrawal of Rs. 40,000 on a specific date. The appellant's attempt to link this withdrawal to a Panchayat decision was unsupported by the complaint's contents. The statutory notice contradicted the evidence, showing inconsistent pleas by the complainant. The defense's argument of the accused being a chit fund subscriber was considered plausible due to the lack of consistent evidence on the complainant's side regarding the money source. The trial court's failure to consider the Rs. 40,000 payment and inconsistent evidence led to an erroneous conviction under section 138 of the Act. The first appellate court rightly dismissed the case, finding the cheque unrelated to a legally enforceable debt. The judgment concluded by dismissing the Criminal Appeal and confirming the order of acquittal by the first appellate court. This detailed analysis highlights the legal intricacies of the case, including the evidence presented, the arguments made by both parties, and the reasoning behind the appellate court's decision to acquit the accused.
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