2022 (3) TMI 1442 - HC - Indian Laws

Dishonor of cheque - insufficient of funds - discharge of a legally enforceable debt or not - rebuttal of statutory presumption - section 118 and 139 of NI Act - HELD THAT - The Hon ble Apex Court in M/S LAXMI DYECHEM VERSUS STATE OF GUJARAT ORS. 2012 (12) TMI 106 - SUPREME COURT has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability the prosecution can fail. To raise probable defence accused can rely on the materials submitted by the complainant. Needless to say if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability statutory presumption under Section 139 of the Negotiable Instruments Act regarding commission of the offence comes into play. In the case at hand complainant Ashok Kumar tendered his evidence by way affidavit Exhibit CW-1/A and stated that the accused was in need of money as such requested him to lend Rs. 2, 70, 000/- and same was given by the complainant to the accused - True it is that in cross-examination complainant has stated that he gave some money in cash and some through bank but he could not recollect how much money was paid in cash and how much through bank. Complainant stated that there was no witness present at the time when he had given money to the accused but such admission on the part of the complainant is of no benefit to the accused when issuance of cheque and signatures thereupon of the accused stand duly admitted. Material adduced on record clearly reveals that the complainant successfully proved on record that accused borrowed Rs. 2.70 Lakh from him and with a view to discharge his liability issued cheques Exhibits CW-1/B and CW-1/E but the same were dishonoured on account of insufficient funds in the bank account of the accused. Since despite having received legal notice accused failed to make payment of the cheque amount complainant rightly instituted proceedings under Section 138 of the Act against him which subsequently came to be rightly decided in favour of complainant in the totality of evidence led on record by complainant. This Court sees no reason to interfere with the well reasoned judgments passed by the courts below which otherwise appear to be based upon the correct appreciation of evidence and as such same need to be upheld. Moreover this Court has a very limited jurisdiction under Section 397 of the Cr.PC to re-appreciate the evidence especially in view of the concurrent findings of fact and law recorded by the courts below - Since after having carefully examined the evidence in the present case this Court is unable to find any error of law as well as fact if any committed by the courts below while passing impugned judgments and as such there is no occasion whatsoever to exercise the revisional power. The impugned judgments/order of conviction and sentence passed by learned Courts below are upheld - the present revision petition is dismissed.

Summary

Issues Involved:
1. Validity of the conviction under Section 138 of the Negotiable Instruments Act.
2. Presumption under Sections 118 and 139 of the Negotiable Instruments Act.
3. Defence of the accused regarding the cheques being issued as security.
4. Assessment of evidence and burden of proof.
5. Jurisdiction and scope of revisional powers of the High Court.

Issue-wise Detailed Analysis:

1. Validity of the Conviction under Section 138 of the Negotiable Instruments Act:
The court upheld the conviction and sentence of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. The trial court found the accused guilty of issuing cheques that were dishonored due to insufficient funds. The Sessions Judge affirmed this judgment, and the High Court found no illegality in the same, stating, "this court finds no illegality in the same as such, the same calls for no interference."

2. Presumption under Sections 118 and 139 of the Negotiable Instruments Act:
The court emphasized the statutory presumption in favor of the holder of the cheque under Sections 118 and 139 of the Act, which assumes that the cheque was issued for the discharge of a lawful liability. The court stated, "Ss. 118 and 139 of the Act, raise presumption in favour of holder of cheque that the cheque in question was issued for discharge of a lawful liability." This presumption is rebuttable, but the accused failed to rebut it effectively.

3. Defence of the Accused Regarding the Cheques Being Issued as Security:
The accused contended that the cheques were issued as security and had been misused by the complainant. However, the court found this defence unconvincing, noting, "it is not understood that in case he had made payment of entire amount taken from the complainant, then why he failed to take back the cheque given by him to the complainant as a security." The accused's claim that he had already paid the full amount was not substantiated with credible evidence.

4. Assessment of Evidence and Burden of Proof:
The court reiterated that once the issuance of the cheque and the signatures are admitted, the burden shifts to the accused to rebut the presumption. The court cited the Supreme Court's judgment in Rohitbhai Jivanlal Patel v. State of Gujarat, emphasizing that the accused must bring on record facts that show a reasonable probability of a defence. The court noted, "The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence." The accused failed to present any substantial evidence to support his defence.

5. Jurisdiction and Scope of Revisional Powers of the High Court:
The High Court's revisional jurisdiction is limited to correcting miscarriages of justice and does not equate to an appellate jurisdiction. The court cited State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri, stating, "the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice." The court found no glaring errors or material irregularities in the judgments of the lower courts, thereby upholding the concurrent findings of fact and law.

Conclusion:
The High Court dismissed the revision petition, affirming the judgments of the trial court and the Sessions Judge. The court concluded, "the present revision petition is dismissed being devoid of any merit. Impugned judgments/order of conviction and sentence passed by learned Courts below are upheld." The petitioner was directed to surrender before the trial court to serve the sentence, and all pending applications were disposed of.