2015 (9) TMI 1721 - HC - Indian Laws

Dishonor of cheque - insufficiency of funds - there was existing liability or not - rebuttal of presumption - preponderance of probability - HELD THAT - The relationship between the parties was that of cousin brother and naturally the story of advancement of friendly loan to the tune of 19, 000/- cannot be ruled out. This Court on scrutiny of the evidence of this D.W. 1 is not in favour of coming to this conclusion that presumption which the complainant was having under Section 139 was rightly rebutted. It is true that the presumption under Section 139 of the N.I. Act was not that heavy like that of on the prosecution in a criminal trial but it is preponderance of probabilities which is commonly used in civil cases. The respondent did not discharge the initial liability on him in such a case by stopping the payment of the cheque or intimating the matter to the police and naturally these two lapses will cost him much. In view of the discussion so long made and keeping in mind the legal position involved evidence both oral and documentary this Court is satisfied that the learned trial Court erred in coming to the conclusion that there was no existing liability on the part of the present respondent. This Court reiterates that the cheque was issued in discharge of existing liability which remained unpaid which is definitely covered under Section 138 of the N.I. Act. This cheque was issued on 26.03.2008. i.e. before more than seven years from today and naturally the complainant has suffered both mentally and financially due to the act on the part of the present accused respondent. This act on the part of the accused must be well compensated. Thus this Court is satisfied that the complainant appellant duly proved the charge against the accused under Section 138 of the N.I Act. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Legally enforceable debt or liability under Section 138 of the Negotiable Instruments Act.
2. Presumption under Sections 118 and 139 of the N.I. Act.
3. Rebuttal of presumption by the accused.
4. Evidence and burden of proof.
5. Conduct of the accused regarding the cheque.
6. Trial Court's interpretation and judgment.
7. Appellate Court's re-evaluation of the evidence and judgment.

Detailed Analysis:

1. Legally enforceable debt or liability under Section 138 of the Negotiable Instruments Act:
The appeal was against the acquittal judgment dated 20.07.2012 by the Judicial Magistrate, 2nd Court, Bishnupur, Bankura, in Complaint Case No. 39-C of 2008 under Section 138 of the N.I. Act. The appellant claimed that the respondent, his cousin, took a friendly loan of Rs. 19,000/- and issued a cheque which was dishonored due to insufficient funds. The trial court acquitted the respondent, concluding there was no existing liability.

2. Presumption under Sections 118 and 139 of the N.I. Act:
The appellant argued that under Sections 118 and 139 of the N.I. Act, there is a presumption in favor of the holder of the cheque that it was issued for discharging a debt or liability. The appellant cited the Apex Court's decision in Rangappa v. Sri Mohan, which held that the presumption includes the existence of a legally enforceable debt or liability.

3. Rebuttal of presumption by the accused:
The trial court relied on the accused's testimony, who claimed no relationship with the complainant since 2001 and denied issuing the cheque. The court accepted the defense that the complainant obtained a blank signed cheque and filled it in. The trial court cited K.J. Bhatt v. D.G. Hegde, where the Apex Court held that the existence of a legally recoverable debt is not presumed under Section 139.

4. Evidence and burden of proof:
The appellant presented documentary evidence, including the cheque, bank memos, and postal receipts. The accused's defense was that the cheque was stolen and filled in by the complainant. The trial court found the defense plausible and acquitted the accused. The appellate court, however, found the defense unconvincing, noting the accused did not report the missing cheque to the police or his bank, which would be expected conduct.

5. Conduct of the accused regarding the cheque:
The appellate court scrutinized the accused's claim of keeping blank signed cheques at home and found it implausible that a prudent person would not report a missing signed cheque. The court noted that the accused's failure to stop payment or report to the police weakened his defense.

6. Trial Court's interpretation and judgment:
The trial court concluded there was no existing liability, accepting the accused's defense. The appellate court found this conclusion erroneous, noting the trial court was swayed by the defense's unsubstantiated story and overlooked the presumption under Section 139 of the N.I. Act.

7. Appellate Court's re-evaluation of the evidence and judgment:
The appellate court re-evaluated the evidence and found the presumption under Section 139 was not rebutted by the accused. The court held that the cheque was issued in discharge of an existing liability and the appellant proved the charge under Section 138 of the N.I. Act. The appellate court sentenced the respondent to ten days of rigorous imprisonment and ordered compensation of Rs. 40,000/-, with an additional one-year imprisonment in default of payment.

Conclusion:
The appellate court set aside the trial court's acquittal judgment, reversing its findings. The appeal was allowed, and the respondent was sentenced to rigorous imprisonment and ordered to pay compensation. The court directed the trial court to ensure the respondent surrenders and complies with the order.