2018 (9) TMI 505 - HC - Indian Laws

Dishonor of Cheque due to insufficiency of funds - Section 138 of Negotiable Instruments Act - legally enforceable debt or not - whether the Courts below have failed in appreciation of the evidence and whether there is any illegality or impropriety in the judgement of the Courts below? Held that - When opportunity was given to the revision petitioner to reply he did not avail that opportunity, but kept quiet till the complainant lodged the complaint before the Magistrate - Thereafter, as a defence he has pleaded that the cheques were stolen and he gave a complaint to the police. In support of that, he has also examined D.W.1, one Mr.Ravikumar, Sub-Inspector of Police and marked his compliant to the Sub-Inspector of Police, as Ex.D.1. From the evidence of D.W.1, this Court finds that on receipt of the complaint, Ex.D.1, summon was issued to the revision petitioner which was marked as Ex.D.4. Since he did not appear for enquiry, the complaint was closed and the same has been informed to him - the defence theory of lost cheque, has no legs to stand. Revision petition dismissed.

Summary

Issues involved:
1. Confirmation of conviction under Section 138 of Negotiable Instruments Act by the Fast Track Court Magistrate.
2. Appeal before the Second Additional District Judge, Tuticorin.
3. Grounds for criminal revision case challenging the judgment.
4. Consideration of evidence and defense theory of lost cheques.
5. Failure to reply to statutory notice and cooperate with the police investigation.
6. Non-examination of witness Kennady and non-disclosure of the source of money.

Analysis:
1. The judgment involves the confirmation of the conviction of the revision petitioner under Section 138 of the Negotiable Instruments Act by the Fast Track Court Magistrate. The complainant alleged that three cheques issued by the petitioner bounced due to insufficient funds, leading to the legal proceedings resulting in a one-year simple imprisonment and a compensation order of ?15,00,000.

2. The revision petitioner appealed before the Second Additional District Judge, Tuticorin, who upheld the lower court's decision after reappreciating the evidence. The petitioner challenged this judgment in a criminal revision case, arguing that there was no substantial material to prove the cheques were issued to discharge a legally enforceable debt.

3. The petitioner contended that the lower courts erred in concluding the debt discharge without proper evidence, emphasizing the lack of income tax assessment by the complainant. Additionally, it was argued that the substantial amount loaned without supporting documents was implausible, questioning the validity of the presumption made by the courts.

4. The defense theory of lost cheques was presented, supported by a complaint to the police station and the examination of a police officer as a defense witness. However, the court found no merit in this defense, highlighting the petitioner's failure to reply to the statutory notice or cooperate with the police investigation, indicating the defense of lost cheques was an afterthought.

5. The court emphasized that the petitioner had the opportunity to respond but remained silent until the complaint was filed. The defense's failure to provide substantial evidence regarding the lost cheques weakened their argument. The non-examination of witness Kennady and the lack of disclosure regarding the source of money were deemed non-fatal to the case, as the complainant had sufficiently proven the source of funds.

6. Ultimately, the court dismissed the revision petition, confirming the concurrent conviction and sentence passed by the lower courts. The judgment highlighted the importance of timely responses, cooperation with investigations, and the need for substantial evidence to support defense claims in legal proceedings under the Negotiable Instruments Act.