2017 (3) TMI 1891 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - discharge of legally enforceable debt or not - cheque issued as a security for performance of agreement or not - cross examination of the witnesses or not - HELD THAT - This Court was unable to find out any record adduced by accused/petitioner suggestive of the fact that sale deed, if any, was executed between the parties pursuant to agreement Ext.D1. Hence defence as taken by accused/petitioner under Section 313 Cr.P.C. was rightly not taken into consideration by learned Courts below while holding petitioner guilty of having committed an offence punishable under Section 138 of the Act - Conjoint reading of evidence and documents placed on record clearly establish on record that complainant had advanced an amount of Rs. four lacs to accused on understanding that he would return the same within stipulated period. Similarly this Court after carefully examining the cheques Ext.CW2/A and Ext.CW2/B is convinced that these were issued by accused/petitioner towards his liability to repay the amount. Careful perusal of Ext.D1, leaves no doubt in the mind of Court, that amount as referred was paid by complainant to accused and he in discharge of his liability issued cheques, which were ultimately dishonoured. This Court with a view to ascertain the genuineness and correctness of argument having been advanced by learned counsel for the accused/petitioner that there was no lawful consideration, carefully examined the entire evidence, which clearly suggests that there is no merit in aforesaid argument of learned counsel representing the petitioner - Bare perusal of Ext.D1, which was tendered in evidence by petitioner himself, proves on record that he had taken amount from the complainant and had issued two cheques for discharging his liability. There are no illegality and infirmity in judgments of conviction recorded by learned Courts below, which are certainly based upon correct appreciation of evidence adduced by parties and as such, present petition is dismissed - petition dismissed.

Summary

Issues Involved:
1. Validity of the conviction under Section 138 of the Negotiable Instruments Act.
2. Adequacy of evidence supporting the conviction.
3. Consideration of the cheques as security versus discharge of liability.
4. Procedural compliance and conduct of the accused during the trial and appeal process.

Issue-wise Detailed Analysis:

1. Validity of the conviction under Section 138 of the Negotiable Instruments Act:
The court upheld the conviction of the accused under Section 138 of the Negotiable Instruments Act. The accused had issued two cheques amounting to Rs. 2 lacs each to the complainant, which were dishonoured due to insufficient funds. The complainant had advanced Rs. 4 lacs to the accused, who promised to repay the amount by January 2010. Upon dishonour of the cheques, the complainant issued a legal notice to the accused, which went unheeded, prompting the initiation of legal proceedings.

2. Adequacy of evidence supporting the conviction:
The trial court and the appellate court meticulously examined the evidence presented by both parties. The complainant successfully demonstrated that the accused had issued the cheques to discharge his liability. The complainant's testimony, supported by bank officials and documentary evidence, such as the cheque return memos and legal notices, substantiated the claim. The court found no misappreciation of evidence and concluded that the complainant had proven all the ingredients of Section 138 of the Act.

3. Consideration of the cheques as security versus discharge of liability:
The accused contended that the cheques were issued as security for an agreement to sell land (Ext.D1) and not for discharging a debt. However, the court found that the agreement corroborated the complainant's version that Rs. 4 lacs were advanced to the accused, who acknowledged the receipt and agreed to repay within three months. The court noted that the accused had not provided evidence of executing a sale deed pursuant to the agreement, thereby dismissing the defense that the cheques were merely security.

4. Procedural compliance and conduct of the accused during the trial and appeal process:
The court observed that the accused failed to comply with procedural requirements, such as furnishing bail bonds and depositing the fine amount despite the suspension of the substantive sentence. The accused's non-compliance and failure to appear in court on multiple occasions were noted. The court emphasized that the judgments of the lower courts were based on a correct appreciation of evidence and legal principles, and there was no scope for interference under the revisionary powers of Section 397 Cr.P.C.

Conclusion:
The court dismissed the criminal revision petition, affirming the conviction and sentence of the accused. The accused was directed to surrender before the trial court to serve the sentence, and the order suspending the substantive sentence was vacated. The court found no illegality or infirmity in the judgments of the lower courts, which were based on a thorough and correct appreciation of the evidence.