2018 (9) TMI 995 - HC - Indian Laws

Dishonor of cheque due to insufficiency of funds - repayment of loan - section 138 of Negotiable Instruments Act, 1881 - Held that - It is seen from Ex.P.7 that the respondent along with the appellant and others are jointly carrying on the real estate business. At one point of time, the appellant took the respondent s ICICI Bank cheque leaf and forged the same by filling up of ₹ 5,00,000/-. The respondent came to know the said fact on 04.11.2009 when it was returned with an endorsement Insufficient of funds and he has no money transaction with the appellant - Moreover, it is known from Ex.P.1, complaint that on 20.04.2009, the respondent met the appellant and agreed to buy a place consists of 74,655 sq.ft. and they agreed to execute a sale agreement by investing ₹ 5,05,000/- each. Accordingly, the appellant gave ₹ 5,05,000/- on 20.04.2009. But, the appellant no where either in complaint or in his evidence stated that he has received any kind of document for giving ₹ 5,05,000/- and he has failed to prove the same. Secondly, it is seen that the appellant has not given any notice when the cheque was dishonoured. Thirdly, the trial Court, while analysing the cheque, has found that the ink of the name and signature and the ink of the amount and date are different. The difference found in the cheque i.e. the ink of name and signature and the amount and date are also presumed to be in favour of the respondent. Therefore, the appellant has not established his case. Hence, the trial Court found that the respondent is entitled for acquittal and there is no need to interfere with the judgment passed by the Court below. In a criminal case, it is not necessary for the respondent/accused to disprove the case of the prosecution beyond reasonable doubt. If the respondent is able to satisfy the Court by legally acceptable defence that the case of the prosecution lacks bona fide, the respondent will be entitled to the benefit of doubt - Further, when there are two views possible, one in favour of the respondent/accused and the other in favour of the appellant/complainant, the view favouring the respondent/accused should be taken into consideration in an appeal against acquittal. There is no reason to interfere with the order of acquittal passed by the trial Court - appeal dismissed.

Summary

Issues Involved:
1. Validity of the cheque issued under Section 138 of the Negotiable Instruments Act, 1881.
2. Rebuttal of presumption under Section 139 of the Negotiable Instruments Act, 1881.
3. Evaluation of evidence and material contradictions.
4. Benefit of doubt in criminal proceedings.

Detailed Analysis:

1. Validity of the Cheque Issued Under Section 138 of the Negotiable Instruments Act, 1881:
The appellant claimed that the respondent issued a cheque for ?5,00,000/- which was dishonored due to "Funds insufficient." The appellant presented the cheque on 05.08.2009 and again on 04.11.2009, both times it was returned due to insufficient funds. The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881.

2. Rebuttal of Presumption Under Section 139 of the Negotiable Instruments Act, 1881:
The appellant argued that the trial court failed to see that the presumption under Section 139 had not been rebutted by the respondent. The appellant contended that the cheque was issued to clear a legally enforceable debt. However, the trial court found that the respondent had raised a legally acceptable defense, suggesting that the appellant had received ?5,00,000/- and ?1,00,000/- in January and February 2009 respectively, and had agreed to repay ?6,00,000/- in two installments. The respondent also claimed that his brother-in-law mistakenly issued a legal notice without his knowledge.

3. Evaluation of Evidence and Material Contradictions:
The trial court observed material contradictions in the appellant's evidence. The appellant's claim of giving ?5,05,000/- to the respondent without any document was not substantiated. The appellant's cross-examination revealed inconsistencies regarding his business transactions and the involvement of other individuals like Paramanandam and Kalaiarasan. Documents marked as Exs.D.5, D.6, and D.7 indicated that the appellant and others were involved in a real estate business, contradicting the appellant's claim of no business transactions with the respondent's relatives.

4. Benefit of Doubt in Criminal Proceedings:
The trial court emphasized that in criminal cases, if there are two possible views, the one favoring the respondent/accused should be considered. The court found that the appellant failed to establish his case beyond reasonable doubt. The differences in the ink of the name, signature, amount, and date on the cheque further supported the respondent's defense. The appellant's failure to give a notice when the cheque was dishonored and the lack of a reply to the respondent's notice were also noted.

Conclusion:
The trial court concluded that the appellant had not proven his case beyond reasonable doubt and that the respondent was entitled to the benefit of doubt. The court found no reason to interfere with the order of acquittal passed by the trial court. Therefore, the appeal was dismissed, and the judgment dated 21.01.2013 in S.T.C.No.100 of 2010 by the learned Judicial Magistrate, Tiruvarur, was confirmed.