2018 (7) TMI 628 - HC - Indian Laws

Non-payment of borrowed money - dishonor of cheque issued for repayment - Instead of paying the amount, respondent has sent a reply notice dated 12.10.2002 with false averments - section 138 of N.I. Act - Whether the learned Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli was right in setting aside the Judgment of the trial court? - Whether this appeal has to be allowed? Held that - The accused has not disputed the fact that Ex.P2/cheque is his cheque. He has also not disputed that the signature found in the said cheque is his signature. However, he denied the allegation that he borrowed the amount from the complainant on 02.12.2001 and in order to discharge the said debt, he issued Ex.P2 cheque. According to him, he does not know the complainant. He only knows PW1 as she conducted a chit in which his mother was a subscriber. The complainant has stated in Ex.P1 (power of attorney that he is not able to personally be present and perform various acts and deeds and hence he executed the power of attorney in favour of PW1. The accused has not disputed the genuineness of Ex.P1. Further, the evidence of the PW1 would show that she had personal knowledge about the transaction which took place between her father (complainant) and the accused. Hence no adverse inference can be drawn against the complainant for his non-examination as witness. The findings of the learned Judicial Magistrate No.IV, Tiruchirapalli in C.C.No.460 of 2002 dated 17.05.2006, that the accused has committed an offence u/s.138 of the Negotiable Instruments Act is restored - In so far as the sentence awarded by the trial court is modified as six months Rigorous Imprisonment and fine of ₹ 5,000/-, in default, three months Rigorous Imprisonment is awarded.

Summary

Issues:
1) Appeal against reversal of judgment by Additional Sessions Judge
2) Consideration of appeal validity

Issue 1: Appeal against reversal of judgment by Additional Sessions Judge

The appellant filed a complaint under Cr.P.C. against the respondent for issuing a cheque with insufficient funds. The complainant's daughter, acting as a power agent, testified that the accused borrowed money and issued a cheque that bounced. The accused denied the debt, alleging coercion by the complainant's side. The accused's defense included accusing the complainant's side of intimidation and filing a false case. The trial court found the accused guilty under Section 138 of the Negotiable Instruments Act, sentencing him to imprisonment and compensation. The accused appealed, and the Additional Sessions Judge reversed the judgment, prompting the current appeal.

Issue 2: Consideration of appeal validity

The appellant argued that the Additional Sessions Judge erred in overturning the trial court's judgment. The appellant contended that the accused failed to provide a valid reason for keeping the signed cheque. The appellant also highlighted the accused's delayed complaint and filing of a suit as attempts to avoid payment. The appellant emphasized that the accused did not rebut the presumption under Section 139 of the Act. The respondent countered by claiming coercion and lack of transaction evidence, leading to an adverse inference against the complainant. The court found discrepancies in the accused's defense, including failure to report the alleged coercion or issue a stop payment on the cheque. Ultimately, the court allowed the appeal, restoring the trial court's judgment with modified sentencing for the accused.

This detailed analysis covers the issues involved in the legal judgment, outlining the arguments presented by both parties and the court's reasoning in deciding the appeal.