2018 (9) TMI 1075 - HC - Indian Laws

Dishonor of Cheque - recovery of loan - section 138 of Negotiable Instruments Act - preponderance of probability - Rebuttal of presumption - Held that - When the statutory presumption against the accused person is rebutted through some material evidence, though may not be to the decree of proof beyond doubt, the preponderance of probability would go to show that the cheque, which was obtained under threat and the subject matter of the complaint dated 21.01.2013, is being utilised to prosecute the revision petitioner through the complainant/ Poongodi, who apparently not acquainted with the revision petitioner, except a tall claim that she and the revision petitioner know each other for merely 12 years. It is unacceptable that the person, who know each other for 12 years and was inspired her confidence, to lend the loan of ₹ 2,00,000/-, but without knowing his residential address. This Court finds that Courts below have erred in properly appreciating the defence explanation to rebut the presumption. Hence, this Criminal Revision Case is liable to be allowed - revision allowed.

Summary

Issues:
1. Appeal against judgment in a criminal case under Negotiable Instruments Act.
2. Allegations of obtaining a blank cheque under threat.
3. Rebuttal of statutory presumption.
4. Discrepancies in the complainant's testimony.
5. Misuse of the cheque to file a complaint.
6. Error in appreciating defense evidence.

Analysis:
1. The case involves a criminal revision filed against a judgment confirming the conviction of the accused under Section 138 of the Negotiable Instruments Act. The accused had borrowed money and allegedly gave a blank cheque under duress, leading to legal proceedings initiated by the complainant.

2. The petitioner argued that the blank cheque was obtained under threat by a third party, and the complainant, who was unknown to the petitioner, misused it to file a complaint. The police had mediated a compromise between the parties earlier, indicating a prior dispute resolution attempt.

3. The defense emphasized that the complainant's testimony contained inconsistencies, such as inaccurately stating the accused's business, raising doubts about the credibility of the allegations. The defense aimed to rebut the statutory presumption by presenting evidence of the circumstances surrounding the loan and the cheque issuance.

4. The court noted discrepancies in the complainant's statements regarding the loan amount, the accused's business, and their relationship. The complainant's lack of knowledge about the accused's residential address and limited previous financial dealings cast doubt on the authenticity of the loan transaction.

5. The judgment highlighted the misuse of the blank cheque by a third party to implicate the accused, indicating a potential conspiracy or fraudulent intent behind the legal proceedings. The court found it implausible that a long-term acquaintance would lend a substantial amount without basic knowledge about the borrower.

6. Ultimately, the court concluded that the lower courts had failed to properly assess the defense's evidence and misconstrued the facts, leading to an erroneous conviction. The criminal revision was allowed, setting aside the previous judgment, and the accused was acquitted, with any fines paid ordered to be refunded promptly.