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2022 (3) TMI 1402 - HC - Indian LawsDishonor of Cheque - discharge of legally recoverable debt or liability or not - acquittal of the accused - proof of offence - rebuttal of the presumption - burden to rebut the presumptions - HELD THAT - Since the accused admitted his signature on the cheque and that the cheque pertains to his account, the trial Court also held that presumption under Sections 118 and 139 of the Act arises regarding passing of the consideration and cheque being issued towards legally recoverable debt. Then the burden shifted to the accused to rebut that presumption. It was for the accused to probabilise his defence that the cheque was issued in 2000 and that was misused. The said defence was vehemently denied by the complainant. The complainant claims that the accused committed default in payment of the loan. It was not the case of the accused himself that the loan was prematurely recalled or that was not due as on the date of the issuance of the cheque or presentation of the cheque as the case was denial of availment of loan itself. However, the Court itself made out the case of such premature recalling of the loan to the accused. It was not the defence of the accused that the he had paid installments which had fallen due. On admitting the cheque, the accused has to probabilise the defence and to establish that. It was not the case of the accused that he had paid the installments which had fallen due, therefore there was no reason to recall the entire loan. Therefore the findings of the trial Court regarding the accused probabilizing his defence on such ground are unsustainable. Therefore it can be held that this Court is not totally barred from receiving such documents at the Appellate stage if the Appellate Court finds additional evidence to be necessary. Section 391 of Cr.P.C. authorizes the Appellate Court on recording its reasons either to take such evidence itself or direct the learned Magistrate to take such evidence. 30 The loan borrowed in the case is huge amount of Rs.50,00,000/-. The complainant is a public institution where the money of the public is at stake. The records show that the accused having borrowed the money, obstructed the complainant s officials when they sought to recover the same, thereby driving the complainant party to file the complaints found in Exs.P14 to P17. This Court finds it necessary in the interest of justice to permit the complainant to adduce additional evidence. At the same time, the accused/respondent shall have opportunity to meet those documents with regard to his contentions that those documents are concocted one. That exercise can be done by remanding the matter to the trial Court to record the evidence regarding the documents sought to be produced before this Court and give findings only with regard to maintainability of the complaint for want of authorization - Appeal allowed in part.
Issues Involved:
1. Issuance and validity of the cheque. 2. Legally enforceable debt or liability. 3. Authorization to file the complaint and give evidence. 4. Rebuttal of presumption under Sections 118 & 139 of the Negotiable Instruments Act. 5. Admission of additional evidence under Section 391 of Cr.P.C. Issue-wise Detailed Analysis: 1. Issuance and Validity of the Cheque: The complainant, a Bank, presented a cheque for Rs.48,68,400/- drawn on the accused's account, which was returned with the endorsement "account closed." The accused admitted his signature on the cheque and that it belonged to his account. However, he contended that the cheque was issued as security for a loan taken in 2000, which was cleared in 2012, and alleged that the complainant misused the cheque. 2. Legally Enforceable Debt or Liability: The trial court held that the loan was a term loan payable from 2014 to 2024 and had not become overdue when the cheque was presented. Therefore, it concluded that there was no legally enforceable debt at the time. The complainant argued that the accused defaulted on the loan repayment, making the debt legally recoverable. The appellate court found that the trial court's findings on the premature recall of the loan were unsustainable since it was not the accused's defense that the loan was not due. 3. Authorization to File the Complaint and Give Evidence: The trial court acquitted the accused on the ground that the complainant failed to prove that PW.1 was authorized to file the complaint and give evidence. The complainant sought to produce additional evidence, including the Board's resolution authorizing PW.1, which was not presented earlier due to a bona fide error. The appellate court noted that the lack of authority could be rectified at the appellate stage if deemed necessary. 4. Rebuttal of Presumption under Sections 118 & 139 of the Negotiable Instruments Act: The trial court acknowledged the presumption under Sections 118 and 139 of the Act that the cheque was issued for consideration and towards a legally recoverable debt. However, it held that the accused successfully rebutted this presumption. The appellate court found that the accused's defense of the cheque being misused was not substantiated, especially since a related criminal case against the complainant's officials was quashed as malafide and an abuse of process. 5. Admission of Additional Evidence under Section 391 of Cr.P.C.: The appellate court allowed the complainant's application under Section 391 of Cr.P.C. to produce additional evidence, including the Board's resolution. It emphasized that the complainant, a public institution dealing with public money, should not be dismissed on technical grounds. The court remanded the matter to the trial court to record evidence regarding the additional documents and decide on the maintainability of the complaint based on proper authorization. Conclusion: The appellate court allowed I.A. No. 1/2020 and partly allowed the appeal. It held that the complainant proved the accused committed the offense under Section 138 of the Act. The trial court was directed to record evidence on the additional documents and decide the maintainability of the complaint for want of proper authorization. Based on this decision, the trial court would then determine the acquittal or conviction and sentence of the accused. The appeal was disposed of accordingly.
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