2019 (12) TMI 1666 - HC - Indian Laws

Dishonour of cheque - validity of order of acquittal - existence of legally enforceable debt or not - HELD THAT - A holder of a cheque is entitled to the benefit of legal presumption under Section 118(g) of the N.I. Act that he came into possession of the instrument in due course unless it is shown to have come to the custody of the possessor by means of an offence, fraud or other unlawful means. In this case, the accused had not even put a suggestion to P.W. 1 that the cheque came to his possession otherwise than by lawful means. When the holder becomes a payee, he could successfully prosecute the drawer of the cheque under Section 138 of the N.I. Act irrespective of whether or not he had direct transaction with the drawer. The question that arises is whether she could be charged with criminal liability if she could show by materials on record that the liability of husband undertaken by her was for a much lesser amount than what was shown in the cheque. Taking the testimonies of P.W. 1 and D.W. 2 together, it could be reasonably inferred that liability of D.W. 2 to the complainant was at the most for an amount of Rs. 30,000/-. This is what was recorded in the agreement itself going by the testimony of D.W. 2. The execution of agreement is not denied by P.W. 1 also. In my view, in the absence of complainant producing the agreement and showing that the amount actually settled as per the agreement was Rs. 1,30,000/-, the evidence of D.W. 2 alone must be preferred. The burden in this respect is only on P.W. 1 especially because the evidence on record has shown that his alleged financial transaction with accused was untrustworthy. This burden was not discharged by the complainant. What emerges from the entire materials on record is that a blank cheque came to the possession of P.W. 1 which he filled up making it appear that it was delivered for discharge of liability larger than what the accused had undertaken for her husband. If this is the actual position, the presumption of consideration arising under Section 139 of the N.I. Act cannot attach to Ext. P1 blank cheque nor can it help the complainant to contend that the issue of cheque was in discharge of entire amount of Rs. 1,30,000/-. This is apart from the contention of D.W. 2 that he discharged his debt to complainant through the office of C.I. of Police, Nilambur - There is no reason to interfere with the same as it cannot be rejected as being perverse or absurd. Therefore, the impugned order of acquittal is only to be confirmed. Appeal dismissed.

Summary

Issues:
Challenge to the order of acquittal under Section 138 of the Negotiable Instruments Act.

Analysis:
The appellant challenged the order of acquittal in a case involving a complaint under Section 138 of the Negotiable Instruments Act. The complainant alleged that the accused, who was the wife of his friend, borrowed an amount from him and issued a cheque which was dishonored. The accused denied the financial transaction and contended that the loan was between the complainant and her husband. The court below acquitted the accused based on the failure of the complainant to prove the financial transaction with the accused. The appellant argued that even if the transaction was between the complainant and the accused's husband, the accused could still be held liable under Section 138. The appellant cited legal precedents to support the position that the presumption of consideration under Section 139 attaches to the cheque once delivery is proven.

On re-evaluation of the evidence, the court found that the debt giving rise to the cheque was between the complainant and the accused's husband. While the accused delivered the cheque to the complainant, the evidence did not establish her borrowing from the complainant. The court emphasized the significance of delivery of the cheque for liability to be imposed on the drawer. The court found that the accused issued the cheque as a guarantor for her husband's debt, which still falls under Section 138 of the Act. The court highlighted that the payee of a cheque need not have a direct transaction with the drawer, and the accused could be prosecuted under Section 138.

The court considered the evidence regarding the settlement amount and the lack of proof of the actual debt amount settled. It was inferred that the liability of the accused's husband to the complainant was much lesser than the amount on the cheque. The court concluded that the accused was entitled to the benefit of reasonable doubt and was not guilty under Section 138. The order of acquittal was upheld, as it was not found to be perverse or absurd. The appeal was dismissed, confirming the acquittal of the accused.