2018 (3) TMI 1828 - DSC - Indian Laws

Dishonor of Cheque - insufficiency of funds - Default of payment of compensation to the complainant - rebuttal of presumption - HELD THAT - The appellant/accused has not made any submission regarding illegality or infirmity in the Order on Sentence. There is no infirmity in the judgment dated 02.08.2017 and the Order on Sentence dated 16.09.2017 - appeal dismissed.

Summary

Issues Involved:
1. Legality of the impugned judgment and order on sentence.
2. Validity of the cheque and Bayana Receipt.
3. Presumption under Section 139 of the NI Act.
4. Adequacy of the evidence presented by both parties.
5. Receipt of the legal demand notice by the accused.

Detailed Analysis:

1. Legality of the Impugned Judgment and Order on Sentence:
The appellant challenged the judgment dated 02.08.2017 and the order on sentence dated 16.09.2017, arguing that the trial court failed to consider material evidence and testimonies judiciously. The appellant claimed the judgment was passed hastily without proper consideration of the evidence. The court, however, found no infirmity in the trial court's judgment and order on sentence, concluding that the appeal lacked merit and dismissed it.

2. Validity of the Cheque and Bayana Receipt:
The appellant contended that the cheque in question was given as a guarantee for the purchase of a TV and was misused by the complainant. The trial court, however, found that the accused failed to prove that the cheque was given as a guarantee for the TV purchase. The complainant, on the other hand, provided evidence including the Bayana Receipt and the cheque, which were signed by the accused. The court noted that the accused did not present any substantial evidence to disprove the complainant's claims.

3. Presumption under Section 139 of the NI Act:
The court reiterated the presumption under Section 139 of the NI Act, which states that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it for the discharge of any debt or other liability. The accused failed to rebut this presumption convincingly. The court observed that the accused did not examine Ravinder Sharma or any witness from the finance company to support his defense that the cheque was given as a guarantee.

4. Adequacy of the Evidence Presented by Both Parties:
The complainant provided substantial evidence, including the agreement-cum-Bayana Receipt and the cheque, which were corroborated by witnesses. The accused's defense, including testimonies from DW1, DW2, and DW3, was found to be insufficient and unconvincing. The court noted that the accused did not provide any records from the finance company or any substantial proof that the cheque was given as a guarantee for the TV purchase.

5. Receipt of the Legal Demand Notice by the Accused:
The accused claimed he did not receive the legal demand notice. However, the court observed that the accused admitted during cross-examination that the address to which the notice was sent was indeed his residence. The court relied on the presumption under Section 27 of the General Clauses Act and Section 114 of the Evidence Act, which supports the complainant's claim that the notice was properly served. The court also referenced the Supreme Court judgment in C.C. Alavi Haji vs Palapetty Muhammed & Anr, which states that a person who does not pay within 15 days of receiving summons cannot claim non-receipt of the notice.

Conclusion:
The court dismissed the appeal, finding no merit in the arguments presented by the appellant. The judgment and order on sentence by the trial court were upheld, and the appellant was directed to pay the compensation and litigation expenses as ordered. The court emphasized the presumption under Section 139 of the NI Act and the failure of the accused to provide substantial evidence to rebut the complainant's claims.