2021 (4) TMI 1287 - HC - Indian Laws

Dishonor of cheque - insufficiency of funds - issuance of cheque, admitted or not - rebuttal of statutory presumption - Sections 118 and 139 of the Negotiable Instruments Act - HELD THAT - It is very much clear that the accused had admitted the issuance of Ex.P.3 cheque, but according to him, the cheque was issued to the complainant's son-in-law siddque. Whatever it is, as rightly observed by the trial Court as well as the Appellate Court, the accused has admitted that the cheque in dispute Ex.P.3 was belonging to him and that he had not disputed the signatures found in Ex.P.3 cheque. Consequently, both the Courts below have rightly drawn the presumption under Section 139 and 118 of Negotiable Instruments Act in favour of the complainant. It is settled law that the accused in order to rebut the presumption drawn in favour of the complainant under Sections 118 and 139 of Negotiable Instruments Act, is not required to adduce any evidence and he can prove his probable defence through the evidence adduced by the complainant and that the standard of proof required is of preponderance of probability - In the present case, as already pointed out, the accused has disputed the alleged loan transaction existed between him and the defacto complainant, but admitted the issuance of the cheque to the complainant's son-in-law. As rightly contended by the complainant's side, the accused, at no point of time, disputed the signature found in Ex.P.3 cheque. No doubt, the accused has taken another stand that the complainant was not having sufficient means or capacity to advance the loan, but the same was dealt with by the trial Court as well as the appellate Court. As already pointed out, the accused has taken a stand that Ex.P.3 cheque was issued only to the complainant's son-in-law Sidque and he has not produced any evidence to substantiate the same. Though P.W.1 and P.W.2 were subjected to cross examination, nothing was elicited by the defence in their favour - the defence has neither produced any materials nor shown any facts and circumstances to infer that the defence put forth by the accused is probable. This Court has no hesitation to hold that the accused has not rebutted the statutory presumption under Section 139 of Negotiable Instruments Act. Hence, this Court decides that the finding of the trial Court as well as the Appellate Court, that the accused is guilty of the offence under Section 138 of Negotiable Instruments Act, cannot be found fault with and this Court is in entire agreement with the concurrent judgments of conviction passed by the Courts below - Criminal Revision Case is dismissed.

Summary

Issues Involved:
1. Legality of the concurrent judgments of conviction for the offence under Section 138 of the Negotiable Instruments Act.
2. Examination of statutory presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act.
3. Evaluation of the accused’s defense and rebuttal of statutory presumptions.
4. Assessment of the punishment imposed by the trial and appellate courts.

Detailed Analysis:

1. Legality of the Concurrent Judgments of Conviction:
The primary issue was whether the concurrent judgments of conviction passed in Criminal Appeal No.46 of 2016 and S.T.C.No.1438 of 2014, confirming the conviction of the accused under Section 138 of the Negotiable Instruments Act, were liable to be set aside. The Court examined the evidence and the arguments presented by both sides, including the complainant’s assertion that the accused had issued a cheque for ?2,30,000/- which was dishonored due to insufficient funds, leading to the filing of the complaint.

2. Examination of Statutory Presumptions:
The Court referred to Sections 118(a) and 139 of the Negotiable Instruments Act, which deal with statutory presumptions. Section 118(a) presumes that every negotiable instrument was made for consideration, and Section 139 presumes that the holder of a cheque received it for the discharge of any debt or liability. The Court noted that these presumptions are rebuttable and that the burden of proof shifts to the accused to rebut these presumptions.

3. Evaluation of the Accused’s Defense and Rebuttal of Statutory Presumptions:
The accused admitted issuing the cheque but claimed it was given to the complainant’s son-in-law. The Court observed that the accused did not provide any evidence to substantiate his claim and did not dispute the signatures on the cheque. The defense argued that the complainant did not have the means to advance the loan and alleged that the cheque was misused. However, the Court found that the accused failed to rebut the statutory presumptions, as no credible evidence was presented to support his defense. The Court emphasized that the accused’s failure to reply to the legal notice and the lack of evidence to support his claims weakened his defense.

4. Assessment of the Punishment Imposed:
The trial Court had sentenced the accused to one year of simple imprisonment and to pay a compensation of ?2,30,000/-, with a default sentence of two months of simple imprisonment. The appellate Court confirmed this sentence. The High Court found the punishment to be reasonable and not excessive, considering the nature of the offence and the quantum of the cheque amount. Consequently, the High Court concluded that there was no reason to interfere with the judgments of the lower courts.

Conclusion:
The High Court dismissed the Criminal Revision Case, upholding the concurrent judgments of conviction and the sentence imposed by the trial and appellate courts. The Court directed the trial Court to take necessary steps to secure the accused to undergo the remaining period of the sentence, if any.