2017 (11) TMI 1113 - HC - Indian Laws

Attempt to probablize the suggestive case - dishonor of cheque - guilty under Section 138 of Negotiable Instrument Act - Held that - Even during the cross examination of P.W.1, though, an attempt has been made by the Revision petitioner/accused to touch upon the financial capacity of the P.W.1. However, such an attempt as become fertile in view of the positive evidence by the P.W.1 in the cross examination that from the saving of his earning he has made the amount. Both the courts below have concurrently and rightly held that the complainant has proved the necessary ingredients to raise the presumption in his favour and however, the respondent/accused has fasted to probablise the suggestive case that the complainant is lend no financial capactancy and he is man of no means, as claimed by him. Either by direct evidence and to eliciate any circumstance to that effect by preponderance of probability. Revision Petitioner has miserably failed to probablize the suggestive case and except this point,no other point urged were and both the courts below have a concurrently held that the complainant is entitled for the presumption under the Negotiable Instrument Act and the respondent/accused has failed to probablize the suggestive case is well merited and well considered and the same does not warrant any interference by this Court and this Criminal Revision Petition is devoid of merits and accordingly, this Criminal Revision Petition is dismissed.

Summary

Issues:
Accused appealing against conviction under Section 138 of Negotiable Instrument Act - Failure to repay borrowed amount via dishonored cheque - Invocation of presumptions under Sections 108 and 139 of N.I. Act - Accused's defense of complainant's financial capacity - Failure to rebut presumption - Appeal and Criminal Revision filed against conviction and sentence.

Analysis:
The accused borrowed a sum of ?4,65,000 on 30.07.2008 from the complainant, issuing a cheque dated 21.08.2008, which was dishonored due to insufficient funds. The trial Court found the accused guilty under Section 138 of the Negotiable Instrument Act, sentencing him to one year of Simple Imprisonment and a fine of ?5,000. The complainant's financial capacity was challenged by the accused, citing legal precedents emphasizing the need to prove the non-existence of consideration. However, both trial and appellate courts upheld the presumption in favor of the complainant, as the accused failed to provide evidence to counter it.

The accused contended that the complainant lacked the financial means to lend the amount, relying on legal decisions emphasizing the burden on the drawer of the cheque to prove the non-existence of consideration. The evidence presented by the complainant, including a legal notice and acknowledgment, supported the existence of a legally enforceable debt. Despite attempts during cross-examination to question the complainant's financial capacity, the accused could not substantiate their claim. The courts held that the complainant had met the requirements for invoking the presumption under the Negotiable Instrument Act, while the accused failed to provide sufficient evidence to rebut it.

The accused's argument regarding the complainant's financial capacity was refuted based on the positive evidence presented by the complainant himself during cross-examination. The courts found that the accused had not successfully probablized their claim that the complainant lacked the financial capacity to lend the amount. As a result, the Criminal Revision Petition was dismissed, affirming the lower courts' decisions regarding the presumption under the Negotiable Instrument Act. The judgment highlighted the importance of providing substantial evidence to challenge presumptions in cases involving dishonored cheques and debts under the N.I. Act.