2018 (2) TMI 2115 - HC - Indian Laws

Dishonour of Cheque - Insufficient Fund - valid cheque or not - accused denied his signature - cheque issued validly against any legally enforceable debt or liability, or not - HELD THAT - Learned appellate court has been guided by the fact that the endorsement by the Bank clearly indicated that the cheque was not valid. Why the cheque was not valid or valid had to be shown by the complainant through his evidence and/or by examination of the banker, which he failed to do. The complainant also failed to state clearly the date and time of the friendly loan or any documentary evidence of such friendly loan having been advanced to the accused. The complainant-petitioner has failed to make out any case for grant of leave to appeal. The instant petition is, accordingly, dismissed.

Summary

Issues:
1. Acquittal of the accused/Opposite Party No.2 under Section 138 of the Negotiable Instrument Act by the learned Principal District & Sessions Judge.
2. Appeal by the complainant seeking leave to appeal against the acquittal decision.
3. Analysis of evidence and legal aspects by the appellate court leading to the acquittal.
4. Arguments presented by the counsel for the petitioner regarding the establishment of necessary ingredients under Section 138 of the Negotiable Instrument Act.
5. Evaluation of the judgments by the High Court concerning the validity of the cheque and failure to establish the case by the complainant.

Issue 1:
The learned Principal District & Sessions Judge acquitted the accused/Opposite Party No.2 of the charges under Section 138 of the Negotiable Instrument Act. The judgment set aside the previous conviction by the Judicial Magistrate, citing insufficient evidence to prove guilt.

Issue 2:
The complainant sought leave to appeal against the acquittal decision, claiming that the cheque issued by the accused was dishonored due to insufficient funds, and the accused failed to repay the amount despite legal notice. The complainant argued that the cheque was in lieu of a friendly loan, fulfilling the requirements of Section 138 of the Negotiable Instrument Act.

Issue 3:
The appellate court analyzed the evidence and legal aspects, focusing on the validity of the cheque. It was found that the cheque was not valid, as indicated by the bank's endorsement. The court emphasized that for a prosecution under Section 138, a valid cheque issued against a legally enforceable debt is necessary, which was lacking in this case.

Issue 4:
The counsel for the petitioner contended that all essential elements under Section 138 were established during the trial, emphasizing the dishonor of the cheque and the failure of the accused to repay the amount. The petitioner argued that the appellate court erred in acquitting the accused based on the available evidence.

Issue 5:
The High Court evaluated both judgments and the evidence on record. It noted the lack of proof regarding the validity of the cheque and the absence of clear evidence regarding the friendly loan. The Court concluded that the complainant failed to substantiate the case for granting leave to appeal, ultimately dismissing the petition.

This detailed analysis covers the key issues involved in the legal judgment, including the acquittal decision, appeal for leave to appeal, evaluation of evidence, arguments presented, and the High Court's final decision based on the legal aspects and evidence presented during the trial and appellate proceedings.