2018 (8) TMI 1237 - HC - Indian Laws

Dishonor of cheque due to insufficiency of funds - Section 138 of the Negotiable Instruments Act - case of the defence is that the respondent/accused did not know the complainant and he only knew the Power of Attorney Holder of the complainant and no cheques were issued - Held that - In view of the specific evidence of D.Ws.2 and 4 coupled with the non-production of the alleged pro-note said to have been executed by the accused and also to the effect that Ex.P.7 came into existence only on 17.02.2001 much after filing of the present complaints and taking into entirety of the circumstances, the Lower Appellate Court has rightly came to a conclusion that Ex.P.7 does not advance the case of the complainant and disbelieved the evidence of complainant and rightly disregarded the document Ex.P.7. The next limb case of the respondent/accused is that he never knew the complainant and he only knew the Power of Attorney Holder of the complainant - Held that - The Lower Appellate Court has rightly appreciated the evidence and correctly came to the conclusion that in the absence of specific averments in the complaint regarding the date of borrowal and discrepancy in the evidence of P.W.1 and D.W.3 viz., between the Power of Attorney Holder and his Principal and in view of the supporting evidence of D.Ws.2, 4 and 5, who have clearly supported the suggestive case of the respondent/accused and failure on the part of the complainant to produce the material documents such as pro-note alleged to have been executed by the accused, loan agreement and the relevant documents, the trial Court has clearly held that the suggestive case has been probabalised. The complainant has failed to prove the legally enforceable pre-existing debt in support of the cheque in issue and accordingly, rejected the case of the complainant and the same cannot be found fault with and in view of the specific evidence of D.W.3 and the probablized evidence of D.Ws.2 and 4 and coupled with the want of material evidence as pointed out in the preceding paragraphs, the finding rendered by the Lower Appellate Court cannot be found fault with - Criminal appeal dismissed.

Summary

Issues involved:
Appeals against acquittal under Section 138 of the Negotiable Instruments Act - Dispute over financial assistance and dishonored cheques - Discrepancy in evidence - Allegations of non-repayment and issuance of legal notice - Conviction by trial court and subsequent acquittal by appellate court.

Detailed Analysis:

1. Dispute over Financial Assistance and Dishonored Cheques:
The appellant filed two private complaints against the respondent for borrowing sums of money and issuing two cheques which were subsequently dishonored due to insufficient funds. The trial court found the accused guilty under Section 138 of the Negotiable Instruments Act and sentenced him. However, the appellate court acquitted the accused based on re-appreciation of evidence.

2. Discrepancy in Evidence:
During the trial, witnesses were examined on both sides, and documentary evidence was presented. The defense claimed that the accused did not know the complainant and had not borrowed any money. The appellate court accepted the defense's version, highlighting discrepancies in the evidence presented by the complainant and the defense witnesses.

3. Allegations of Non-Repayment and Legal Notice:
The complainant alleged non-repayment and issued a legal notice to the accused. The defense argued that the accused did not borrow any money and the cheques were given as a show for arranging funds through a third party. The appellate court considered the lack of specific details regarding the borrowal date and the absence of crucial documents like a pro-note in favor of the accused.

4. Conviction and Acquittal:
The trial court convicted the accused, but the appellate court acquitted him based on the defense's version and discrepancies in the complainant's evidence. The appellate court found that the complainant failed to prove a legally enforceable pre-existing debt in support of the dishonored cheques, leading to the acquittal of the accused under Section 138 of the Negotiable Instruments Act.

5. Judgment and Conclusion:
After analyzing the evidence and arguments presented by both parties, the court upheld the appellate court's decision to acquit the accused. The court found that the appellate court's judgment was well-considered, merited, and devoid of faults, leading to the dismissal of the criminal appeals and confirming the acquittal of the accused under Section 138 of the Negotiable Instruments Act.