2016 (7) TMI 1692 - HC - Indian Laws

Dishonour of Cheque - rebuttal of statutory presumption - acquittal of accused - HELD THAT - The cheque was issued by the accused and it has returned unpaid by banker of the accused for want of sufficient fund in his account. Therefore unless and until the complainant is unable to identify the handwriting in such cheque it cannot be said that accused has not issued the cheque at all. In all such cases one basic thing to be recalled is that before filing of a complaint a statutory notice is must and therefore in present case also the complainant has issued statutory notice of 31st December 2004 by RPAD which is served upon the petitioner as per endorsement on acknowledgment slip of RPAD which is produced on record and thereafter if petitioner fails to reply to such notice prima-facie it is to be believed that he has no defence to put forward and he is simply trying to kill time before he is obliged to pay the amount of cheque in question. In absence of any cogent and reliable evidence by the accused and as aforesaid when documentary evidence relied upon by the petitioner- accused is not sufficient to rebut the presumption practically there is no substance in the revision more particularly when there are concurrent findings of two Courts below confirming the conviction. In the present case there is no issue regarding relationship between the parties. There is no issue or evidence regarding misuse of cheque or loss of cheque and therefore because the complainant is silent on certain facts which otherwise are not material and relevant for the consideration of commission of offence under the Negotiable Instruments Act it cannot be said that petitioner has succeeded in proving his innocence or that he has rebutted the evidence of the complainant so as to confirm the acquittal in his favour. Thus considering the settled legal position that otherwise revisional jurisdiction is limited which does not permit re-appreciation of the entire evidence when there are two concurrent findings of fact by two Courts below. Therefore in view of the above facts and circumstances of the case and discussion there is no substance in the revision application and hence revision application is dismissed.

Summary

Issues Involved:
1. Conviction under Section 138 of the Negotiable Instruments Act.
2. Appeal and revision against the conviction.
3. Presumption under Sections 118 and 139 of the Negotiable Instruments Act.
4. Rebuttal of presumption by the accused.
5. Statutory notice and procedural compliance.
6. Revisional jurisdiction and scope of interference by the High Court.

Detailed Analysis:

1. Conviction under Section 138 of the Negotiable Instruments Act:
The petitioner, the original accused, was convicted by the Trial Court for an offense under Section 138 of the Negotiable Instruments Act, which pertains to the dishonor of a cheque due to insufficient funds. The Trial Court sentenced the petitioner to 15 months of simple imprisonment and directed him to pay the cheque amount to the complainant.

2. Appeal and Revision Against the Conviction:
The petitioner appealed the Trial Court's decision to the Sessions Court, which upheld the conviction and directed the petitioner to surrender within 15 days. The petitioner then filed a revision application before the High Court. The High Court initially stayed the execution of the impugned judgment on the condition that the petitioner deposits 50% of the cheque amount, which he complied with by depositing Rs. 1,75,000.

3. Presumption under Sections 118 and 139 of the Negotiable Instruments Act:
The Trial Court and the Sessions Court both relied on the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act. Section 118(a) presumes that every negotiable instrument was made for consideration, and Section 139 presumes that the holder of a cheque received it for the discharge of any debt or liability unless proven otherwise.

4. Rebuttal of Presumption by the Accused:
The petitioner argued that the cheque was not issued for any legally enforceable debt, citing a previous civil suit involving the complainant's wife, which was dismissed. However, the courts found that the petitioner failed to provide cogent and reliable evidence to rebut the statutory presumptions. The accused did not step into the witness box or adduce any oral evidence but relied on documentary evidence, which the courts found insufficient.

5. Statutory Notice and Procedural Compliance:
The complainant had issued a statutory notice to the petitioner, which was served as per the acknowledgment slip. The petitioner did not reply to the notice, leading the courts to believe that he had no defense and was merely trying to delay the proceedings.

6. Revisional Jurisdiction and Scope of Interference by the High Court:
The High Court emphasized that its revisional jurisdiction is limited and does not permit re-appreciation of the entire evidence when there are concurrent findings of fact by two lower courts. The High Court found no absolute illegality or irregularity in the lower courts' judgments and dismissed the revision application.

Further Order:
The High Court allowed the petitioner time to surrender within four weeks, provided he deposits the balance cheque amount within 10 days. If the amount is not deposited, the Trial Court was directed to execute the impugned judgment immediately.

In conclusion, the High Court upheld the concurrent findings of the lower courts, confirming the conviction under Section 138 of the Negotiable Instruments Act and dismissed the revision application, emphasizing the limited scope of its revisional jurisdiction.