2015 (2) TMI 1304 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - section 138 of NI Act - Held that - The principles applicable to grant of leave against a judgment of acquittal are well settled. The petitioner has to show that the judgment suffers from perversity or that there is clear mis-appreciation of evidence by the Court below. Merely because the appellate court may prefer a different view would not be a ground to interfere with the judgment of acquittal as the presumption of innocence stands fortified by the judgment under decree. In the present case, the accused was clearly able to raise a serious doubt about the claim of the petitioner complainant that no amount was due from the accused to the complainant on account of supply of any equipment. The accused was able to establish instances where products imported by the complainant in the name of the firm M/s Sony Impex were shown as sold to M/s Taurian Overseas; from M/s Taurian Overseas to M/s Xeon Infotech; from M/s Xeon Infotech to M/s Grafiti Infotech and the entire payment received in respect of such sale was routed back firstly into the account of M/s Xeon Infotech and from there to the account of M/s Taurian Overseas and further into the account of M/s Sony Impex - The defence of the accused that he was an employee of the complainant receiving salary, in the form of salary and commission, was also established. Petition dismissed.

Summary

Issues:
1. Delay in leave petition.
2. Appeal against judgment under Section 138 of the Negotiable Instruments Act.
3. Defence of accused regarding alleged sham firms and suppressed value imports.
4. Conviction and sentence of accused.
5. Appeals before Sessions Court.
6. Merits of the appellate court's judgment.

Issue 1: Delay in leave petition
The petitioner filed a leave petition with a 20-day delay. The judge, after hearing the petitioner's counsel, decided not to issue notice on the leave petition due to the delay, as it would serve no purpose to consider the application seeking condonation of delay.

Issue 2: Appeal against judgment under Section 138 of the Negotiable Instruments Act
The complainant filed a complaint under Section 138 of the Negotiable Instruments Act against the accused for dishonoring a cheque issued for full and final settlement of outstanding bills. The accused raised a defense claiming that no goods were purchased, and alleged the existence of sham firms to inflate prices. The accused was convicted and sentenced by the Magistrate, which led to appeals before the Sessions Court. The Sessions Court allowed the accused's appeal and dismissed the complainant's appeal.

Issue 3: Defence of accused regarding alleged sham firms and suppressed value imports
The accused presented evidence suggesting that the complainant operated sham firms to inflate prices and channel funds back to himself. The accused claimed to be an employee receiving salary and commission, with transactions routed through multiple firms. The defense was supported by documents showing fund transfers between the firms, which the complainant did not dispute effectively. The accused's defense raised doubts about the complainant's claims, leading to the Sessions Court's decision in favor of the accused.

Issue 4: Conviction and sentence of accused
The accused was convicted under Section 138 of the Act and sentenced to two months' simple imprisonment. However, the Sessions Court allowed the accused's appeal, challenging the conviction and the absence of a fine, which was a point of contention for the complainant.

Issue 5: Appeals before Sessions Court
Both the accused and the complainant filed appeals before the Sessions Court. The accused challenged the conviction, while the complainant contested the leniency of the sentence imposed on the accused. The Sessions Court's judgment favored the accused, leading to the dismissal of the complainant's appeal.

Issue 6: Merits of the appellate court's judgment
The appellate court analyzed the evidence presented by the accused, highlighting discrepancies in the complainant's claims and supporting the accused's defense. The court found the accused's defense plausible, indicating a lack of misappreciation of evidence or perversity in the lower court's judgment. Ultimately, the court dismissed the petition, upholding the Sessions Court's decision in favor of the accused.