2011 (11) TMI 879 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the cheque in question was issued towards the discharge of a legally enforceable debt/liability.
2. Whether the accused successfully rebutted the presumption u/s 118(a) and 139 of the Negotiable Instruments Act (N.I. Act).
3. Whether the complainant proved beyond reasonable doubt that the accused issued the cheque towards a legally enforceable debt/liability.

Summary:

Issue 1: Whether the cheque in question was issued towards the discharge of a legally enforceable debt/liability.
The complainant alleged that he advanced Rs. 35,000/- to the accused for furniture work, which was not commenced. Consequently, the accused issued a cheque for Rs. 35,000/-, which was dishonored with the endorsement "Account Closed." The trial court concluded that the cheque was not issued towards the discharge of a legally enforceable debt/liability and acquitted the accused.

Issue 2: Whether the accused successfully rebutted the presumption u/s 118(a) and 139 of the N.I. Act.
The accused contended that the complainant misused two blank cheques obtained from him. The accused's defense was supported by the cross-examination of the complainant and his witnesses, and the statement recorded u/s 313 of Cr.P.C. The bank officer (CW 3) testified that the cheque did not bear the accused's signature. The court found the accused's defense probable, thereby rebutting the presumption u/s 139 of the N.I. Act on the test of preponderance of probability.

Issue 3: Whether the complainant proved beyond reasonable doubt that the accused issued the cheque towards a legally enforceable debt/liability.
The complainant failed to produce cogent evidence to prove the payment of Rs. 35,000/- to the accused. The testimony of the witness Garje was found doubtful. The court concluded that the complainant failed to prove beyond reasonable doubt the existence of a legally enforceable debt/liability and that the cheque was issued towards its discharge. Consequently, the trial court's acquittal of the accused was upheld.

Conclusion:
The appeal was dismissed, and the trial court's judgment acquitting the accused u/s 138 of the N.I. Act was affirmed. The complainant failed to establish the existence of a legally enforceable debt/liability and the issuance of the cheque towards its discharge beyond reasonable doubt.