2017 (10) TMI 87 - HC - Indian Laws

Offence punishable under Section 138 of the Negotiable Instruments Act - dishonor of cheques - Held that - The accused has failed to prove that the cheque was not issued for a consideration. It is proved on record that the accused has utilized the money of the complainant to the extent of cheque, he has issued the cheque to the complainant towards repayment and it is for the consideration. After going through the facts of the present case, this Court finds that the accused has failed to rebut the initial presumption in favour of the complainant, as the cheque was issued towards the repayment of money, the accused has withdrawn from the account of the complainant. So, this Court comes to the conclusion that initially presumption in favour of the complainant that it was issued for consideration towards the payment of money, which the accused was liable to pay the complainant, is not rebutted. Complainant has proved its case beyond the shadow of reasonable doubt. Now, coming to the arguments of learned Senior counsel appearing on behalf of the accused that as the complainant has also maintained a suit for the recovery of this amount, which was dismissed in default and so, the complaint requires dismissal. This Court finds that no substance in the arguments of learned Senior Counsel for the accused that the complainant should enforce has a right by way of civil litigation, the complainant has proved its case beyond the shadow of reasonable doubt. This Court finds that no force in the arguments of learned Senior Counsel for the accused. The petition maintained by the petitioner is without any merit, as the complainant has proved its case beyond the shadow of reasonable doubt. The cheque was issued for consideration, so the judgment of conviction passed by the learned Trial Court and affirmed by the learned lower Appellate Court, needs no interference. The present revision petition, which sans merits, deserves dismissal and is accordingly dismissed.

Summary

Issues Involved:
1. Legality of the judgment of conviction and sentence under Section 138 of the Negotiable Instruments Act.
2. Validity of the cheque issued by the accused.
3. Consideration for the issuance of the cheque.
4. Presumption under Section 139 of the Negotiable Instruments Act.
5. Relevance of civil litigation in the context of the criminal complaint.

Detailed Analysis:

1. Legality of the Judgment of Conviction and Sentence:
The accused challenged the judgment dated 21.6.2013, passed by the learned Sessions Judge, which upheld the conviction and sentence of one year rigorous imprisonment and compensation of ?16,00,000/- under Section 138 of the Negotiable Instruments Act. The High Court examined the records and arguments and found no merit in the petition, thereby dismissing it.

2. Validity of the Cheque Issued by the Accused:
The accused argued that the cheque was issued as security and not for any consideration. However, the complainant provided evidence that the accused, as the Branch Manager, had transferred ?22,96,000/- from the complainant's account without consent and had issued the cheque for ?12,00,000/- to repay part of this amount. The cheque was dishonored due to insufficient funds. The court found that the accused had indeed issued the cheque to discharge his liability.

3. Consideration for the Issuance of the Cheque:
The court noted that the accused admitted to transferring the amount without the complainant's consent and issued the cheque to repay the amount. The court held that the cheque was issued for a lawful consideration and to discharge a legally enforceable debt. The accused's argument that the cheque was issued as security was not substantiated by evidence.

4. Presumption under Section 139 of the Negotiable Instruments Act:
The court referred to the presumption under Section 139, which states that the holder of a cheque is presumed to have received it for the discharge of any debt or liability unless proven otherwise. The court found that the accused failed to rebut this presumption. The complainant's evidence was sufficient to prove that the cheque was issued for consideration.

5. Relevance of Civil Litigation:
The accused argued that the complainant had also filed a civil suit for the recovery of the amount, which was dismissed in default, and thus the criminal complaint should be dismissed. The court found no merit in this argument, stating that the criminal complaint under Section 138 of the Negotiable Instruments Act was independent of any civil litigation and the complainant had proved his case beyond reasonable doubt.

Conclusion:
The High Court dismissed the revision petition, upholding the judgments of the lower courts. The court concluded that the cheque was issued for consideration and the accused failed to rebut the presumption under Section 139. The criminal complaint was found to be valid despite the dismissal of the civil suit, and the judgment of conviction and sentence required no interference. The parties were left to bear their own costs.