2019 (10) TMI 1506 - HC - Indian Laws

Dishonor of Cheque - insufficient funds - acquittal of accused - contention of the appellant/complainant in the appeal is that the Court below has committed an error in not appreciating the evidence in a proper perspective and erroneously has come to the conclusion that he has not proved the transaction - principles of natural justice - HELD THAT - It is important to note that, after the cheque was bounced, the complainant has given notice to the accused in terms of Ex.P3 and the same was served on the accused. The postal acknowledgment Ex.P4 confirms that notice was served on the accused and he did not choose to give any reply. But the contention of the accused throughout in his cross-examination is that, he did not issue the cheque Ex.P1 and the signature available in Ex.P1 is forged and created by the complainant. If really, the accused did not made any transaction with the complainant, he would have given reply to the notice, Ex.P3 immediately when he received the same. In spite of service of notice, he did not give any reply. If no such transaction has taken place between the complainant, he would have raised the defence that said cheque not belongs to him and the same has not been done. The accused has not given any reply to the notice and also in the cross- examination, he categorically admits that the cheque has bounced on account of no sufficient fund in the bank account of the accused. Mere non-producing of the document before the Court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The accused ought to have rebutted the contention of the complainant by producing cogent evidence before the Court and mere denial is not enough. Hence, the Court below ought to have drawn the presumption against the accused that he did not give any reply to the legal notice, though admitted the returning of cheque. The very approach of the Trial Court is erroneous. In the absence of rebuttal evidence under Section 138 of the Negotiable Instruments Act, the Trial Court ought to have convicted the accused for the offence punishable under Section 138 of Negotiable Instrument Act - the Court below has not appreciated the evidence available on record in a proper perspective. The Court below has failed to take note of the fact that it is not the case of the accused that he did not receive any legal notice. But his explanation in the evidence is that on the very same day, he went and told the complainant that he has not issued such cheque. Hence, the very defence cannot be accepted. The accused cannot blow hot and cold in one breath that there was no transaction between the accused and complainant and in another breath that the promissory note which was given earlier by him was misused by the complainant. All these material evidence has not been considered by the Trial Court while acquitting the accused - it is a fit case to reverse the findings of the Trial Court and set aside the judgment of acquittal. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Appeal against judgment of acquittal under Section 138 of Negotiable Instruments Act.

Analysis:
1. The appellant/complainant advanced a loan to the accused for his hotel business, which was not repaid, leading to the issuance of a legal notice. The complainant presented evidence and witnesses to support his case, while the accused denied the transaction. The Court acquitted the accused, prompting the appeal.

2. The appellant argued that the Court erred in not appreciating the evidence, especially the admission by the accused regarding the bounced cheque. Despite the absence of the respondent's counsel during hearings, the Court proceeded to consider the appeal.

Detailed Analysis:
1. The complainant provided detailed evidence, including the issuance of a legal notice after the cheque bounced, which was acknowledged but not replied to by the accused. The accused denied issuing the cheque, claiming forgery, but failed to rebut the complainant's claims effectively.

2. Witness testimonies and documentary evidence were presented, highlighting discrepancies in signatures and the accused's admission of the bounced cheque due to insufficient funds. The Court noted the accused's failure to provide a satisfactory explanation or evidence to counter the complainant's claims.

3. The Court emphasized that the accused's lack of response to the legal notice and admission of the bounced cheque should have led to a presumption against him. The Trial Court's failure to consider these crucial points resulted in an erroneous acquittal.

4. The appellate judge re-evaluated the evidence, pointing out inconsistencies in the accused's defense and his contradictory statements regarding past transactions with the complainant. The Court found the Trial Court's decision flawed and reversed the judgment of acquittal.

5. The final order directed the accused to pay the loan amount with interest or face imprisonment, highlighting the importance of evidence, responses to legal notices, and consistency in defense arguments in cases under Section 138 of the Negotiable Instruments Act.

This detailed analysis of the judgment showcases the critical evaluation of evidence, witness testimonies, and legal principles leading to the reversal of the Trial Court's decision and the imposition of a new directive in the case.