2021 (1) TMI 1185 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - Rebuttal of presumption - preponderance of probability - section 138 of NI Act - HELD THAT - The signature of the petitioner in the cheque has not been disputed and the only dispute is that the petitioner has not borrowed money from the respondent and not issued the cheque, whereas he admitted that he borrowed money from one N.K.Krishnan who is a close relative of the respondent/complainant and he also stated that he repaid the money to him, but the said N.K.Krishnan failed to return the cheque, for which the petitioner has not taken any steps in the manner known to law either by issuing notice to said N.K.Krishnan to get back the cheque or by filing any complaint after sending notice to him. Therefore, the defense taken by the petitioner is not sustainable. The petitioner has not proved that the respondent has no capacity or means to lend the money and therefore, the contention of the learned counsel for the petitioner on the ground of means to lend the loan is not acceptable and the same is rejected. Once the petitioner had not denied the signature and also not established that cheque was given to one N.K.Krishnan and not to the respondent and on what date he borrowed money from N.K.Krishnan and repaid the money and on what date again he asked the cheque, the learned Magistrate and the District Judge has rightly convicted the petitioner by appreciating the evidence and materials placed before them - A reading of the entire materials on record shows that the signature was not in dispute and the defense taken by the petitioner relating to issuance of cheque to N.K.Krishnan is not established and lending capacity of the respondent also not disproved. Therefore when the signature is not in dispute, the presumption under Section 139 of the Negotiable Instruments Act has come into picture. No doubt presumption need not be rebutted by direct evidence and it can be rebutted by preponderance of probability, the presumption under Section 139 of Negotiable Instruments Act is a rebuttable presumption. But, the petitioner has not rebutted the presumption in the manner known to law. This Court does not find any perversity, infirmity of illegality in the orders passed by the Courts below and the revision is liable to be dismissed - Revision dismissed.

Issues involved:
1. Confirmation of conviction and sentence by the learned Sessions Judge.
2. Dispute over the borrowing of money and issuance of the cheque.
3. Examination of evidence and defense presented by the petitioner.
4. Rebuttal of the presumption under Section 139 of the Negotiable Instruments Act.

Issue 1: Confirmation of conviction and sentence by the learned Sessions Judge
The petitioner filed a Criminal Appeal before the learned Sessions Judge challenging the order of conviction and sentence passed by the learned Magistrate under Section 138 of the Negotiable Instruments Act. The learned Sessions Judge, after hearing arguments, dismissed the appeal and upheld the conviction and sentence. Consequently, the petitioner filed a revision before the High Court against the order of the learned Sessions Judge.

Issue 2: Dispute over the borrowing of money and issuance of the cheque
The respondent/complainant alleged that the petitioner borrowed a sum of money and issued a cheque for repayment, which subsequently bounced multiple times due to insufficient funds. The petitioner denied borrowing money from the respondent and claimed that he borrowed from someone else, N.K.Krishnan, and the cheque was issued as security. However, the petitioner failed to take legal steps against N.K.Krishnan to retrieve the cheque, leading to inconsistencies in his defense.

Issue 3: Examination of evidence and defense presented by the petitioner
The petitioner's defense was based on challenging the source of the loan, the timing of transactions, and the credibility of the complainant's claims. The petitioner argued that the complainant's version regarding the loan dates and amounts was inconsistent and that the petitioner had established a defense through preponderance of probability. However, the courts found discrepancies in the petitioner's claims and rejected his defense, concluding that the evidence supported the complainant's allegations.

Issue 4: Rebuttal of the presumption under Section 139 of the Negotiable Instruments Act
The High Court analyzed the evidence and found that the signature on the cheque was not disputed, and the petitioner failed to prove that the cheque was issued only to N.K.Krishnan. The court noted contradictions in the petitioner's statements regarding the loan amount and source of funds. Despite the rebuttable nature of the presumption under Section 139, the petitioner did not provide sufficient evidence to counter it, leading to the dismissal of the revision and confirmation of the lower courts' judgments.

In conclusion, the High Court dismissed the Criminal Revision case, affirming the judgments of the lower courts. The court found no perversity or illegality in the orders passed by the appellate court and upheld the conviction and sentence of the petitioner under Section 138 of the Negotiable Instruments Act.

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