2020 (2) TMI 1581 - HC - Indian Laws

Dishonor of Cheque - allegation is that the signature found in the subject cheque differs with signature of petitioner - complainant has source of income to lend such a huge amount, or not - subject cheque was stolen by the complainant or not - HELD THAT - The Trial Court has held that the accused has not chosen to get expert opinion and merely alleged that his signature was forged and thus, he failed to discharge his burden of disproving the case of the complainant. It is also held that since there is no complaint given by the accused for the theft of cheque, the allegation of stealing the cheque has no legs to stand. The Trial Court further held that the accused failed to disprove the allegation that the complainant has no source of income to lend the money. Further, taking into account the failure of the accused to give reply to the statutory notice, the trial Court rightly concluded that the respondent/complainant proved the legally enforceable debt or liability, whereas the petitioner/accused failed to rebut the presumption under Section 139 of the Act - the trial Court, keeping in mind the evidence available on record and also considering the decided cases, convicted the petitioner/accused and sentenced him for the offence under Section 138 of the Act. This Court finds no reason much less valid reason to interfere with the concurrent findings so rendered by the Courts below. Further, it is settled law that while exercising revisional jurisdiction, this Court cannot re-appreciate the evidence like a Court of appeal, unless it is shown that the findings on facts arrived at by the Courts below are on the face on it perverse. The trial Court is directed to secure the petitioner/accused and commit him in prison to undergo the remaining period of sentence, if any. If any amount has been deposited by the accused either in the appellate Court or in the trial Court in connection with this case, the same shall be disbursed with accrued interest to the complainant or to her legal heirs, as the case may be - revision dismissed.

Summary

Issues:
1. Challenge to concurrent findings of conviction and sentence.
2. Defense raised by the accused.
3. Expert opinion on signature.
4. Allegation of theft of the cheque.
5. Failure to disprove source of income of the complainant.
6. Failure to reply to statutory notice.
7. Burden of proof under Section 139 of the Negotiable Instruments Act.
8. Appellate Court's confirmation of trial Court's findings.
9. Revisional jurisdiction of the High Court.

Analysis:
The case involves the challenge to the concurrent findings of conviction and sentence passed by the lower Courts. The accused had borrowed a sum of ?5,00,000 from the complainant by issuing a post-dated cheque which was dishonored due to insufficient funds. The defense raised by the accused included discrepancies in the signature on the cheque, lack of income source of the complainant to lend the amount, and an allegation that the cheque was stolen. However, the accused failed to provide expert opinion on the signature and did not report the alleged theft of the cheque. The trial Court found the accused's defense insufficient, holding that he failed to disprove the complainant's case and did not rebut the presumption under Section 139 of the Act, leading to conviction under Section 138.

The Appellate Court upheld the trial Court's decision, confirming the findings on merits. The High Court, in its revisional jurisdiction, emphasized that it cannot re-appreciate evidence like an appellate Court unless the lower Courts' findings are evidently perverse. The High Court found no valid reason to interfere with the concurrent findings, leading to the dismissal of the revision. The trial Court was directed to secure the accused for the remaining sentence, and any deposited amount was to be disbursed to the complainant or her legal heirs. The parties were given the option to file for compounding the offense under Section 147 of the NI Act, even after the accused's custody, with the requirement to report the outcome to the Assistant Registrar.

In conclusion, the High Court upheld the conviction under Section 138 of the Act based on the failure of the accused to disprove the complainant's case and the lack of merit in challenging the lower Courts' findings. The judgment highlights the importance of meeting the burden of proof in cases involving dishonored cheques and the limitations of revisional jurisdiction in re-evaluating factual evidence.