2019 (3) TMI 843 - HC - Indian Laws

Dishonor of Cheque - section 138 of NI Act - shortage of money - rebuttal of presumption - Held that - The Appellate Court has held that respondent has been able to rebut the presumption that arises under Section 118 of the N.I. Act. Petitioner has thereafter failed to prove beyond reasonable doubt that he had given the loan to the respondent and the cheque was issued for repayment of the said loan - Finding of the Appellate Court that the petitioner has not shown the source of funds or that he had the capacity to make arrangement of a huge sum of ₹ 4,90,000/- and extend the same as a friendly loan for someone who was barely known to him, is neither perverse nor unreasonable. Perusal of the record shows that the respondent has been able to rebut the statutory presumption. The petitioner has not been able to establish that he had the capacity to extend a friendly loan of ₹ 4,90,000/- without any condition and that such a loan was extended and was to be repaid and the subject cheque was issued for repayment of the loan - petition dismissed.

Issues:
1. Conviction under Section 138 of the Negotiable Instruments Act challenged by petitioner.
2. Dispute over issuance and repayment of a friendly loan through a cheque.
3. Capacity and source of funds for a substantial loan questioned.
4. Defence of misuse of cheque by a third party raised by the respondent.
5. Evaluation of evidence and presumption under Section 118 of the Negotiable Instruments Act.
6. Appellate Court's decision to acquit the respondent based on the evidence presented.

Detailed Analysis:
1. The petitioner contested the conviction under Section 138 of the Negotiable Instruments Act, challenging the Appellate Court's decision to set aside the Trial Court's judgment. The Trial Court had convicted the respondent based on a cheque issued for a friendly loan, which was returned unpaid due to insufficient funds.

2. The dispute revolved around a friendly loan of ?4,90,000 given by the petitioner to the respondent, with the cheque issued as repayment. The Trial Court found the evidence supporting the loan and rejected the defence of the cheque being misused. However, the Appellate Court reversed this decision, citing lack of evidence regarding the petitioner's financial capacity.

3. The Appellate Court questioned the petitioner's capacity to provide such a substantial loan, considering his monthly income and household expenses. The lack of clarity on the source of funds raised doubts about the loan transaction, leading to the respondent's acquittal.

4. The respondent defended himself by claiming that the cheque was given to a third party, Subhash Aggarwal, as security, who then misused it by filling in the petitioner's name. The Appellate Court found this defence plausible and sufficient to rebut the statutory presumption under Section 118 of the Negotiable Instruments Act.

5. The evaluation of evidence and the presumption under Section 118 played a crucial role in the judgment. The Appellate Court considered witness testimonies and the lack of concrete proof regarding the loan transaction. The burden of proof shifted to the petitioner, who failed to establish the loan and cheque issuance beyond reasonable doubt.

6. Ultimately, the Appellate Court's decision to acquit the respondent was based on the respondent's ability to rebut the presumption and the petitioner's failure to substantiate the loan transaction. The judgment highlighted discrepancies in the petitioner's claims and supported the respondent's defence of cheque misuse by a third party.

In conclusion, the High Court upheld the Appellate Court's decision to acquit the respondent, dismissing the petitioner's challenge and emphasizing the importance of concrete evidence in cases involving negotiable instruments and financial transactions.

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