2019 (4) TMI 114 - HC - Indian Laws

Dishonor of Cheque - Cheque returned back with an endorsement that the addressee has left the premises - section 138 of NI Act - existence of debt or not - It was the defence of the revisionist that she did not take any loan amount from the respondent but in fact, the respondent and one Pankaj had stolen the cheque of the revisionist from the shop of her husband. Held that - This Court has already taken note of the conduct of the parties which clearly shows that the revisionist has changed her stand from time to time - In the present case, no FIR was lodged. The place from which the cheque in question was allegedly stolen, is also in dispute. In her evidence, the revisionist has stated that the cheque was stolen from the shop of her husband, whereas in the registered notice Ex.P7 she has stated that the cheque was stolen from the drawer of her computer table. No specific suggestion was given to the respondent alleging that the cheque in question does not bear her signatures. No application was ever filed by the revisionist under Section 45 of Evidence Act for sending her disputed cheque to the Handwriting Expert for examination of her signatures. On the contrary, in paragraph 10 of her cross-examination, she has specifically admitted that the signature on the cheque resembles with the specimen signatures in the Bank. Even otherwise, the Bank has not returned the cheque on the ground of difference in her signatures. This Court is of the considered opinion that the respondent has succeeded in establishing beyond reasonable doubt, that the cheque bearing no.119954 was issued in lieu of the amount of ₹ 10 lac taken by the revisionist from the respondent and later on, she blocked her entire bank account in stead of issuing instructions of stoppage of particular cheque - the Trial Court as well as the Appellate Court did not commit any mistake in holding that the cheque bearing no.119954 was issued by the revisionist in discharge of legal liability which was returned by the Bank on the instructions of the revisionist - the revisionist is held guilty for offence under Section 138 of Negotiable Instruments Act. Revision dismissed.

Issues Involved:
1. Validity of the conviction under Section 138 of the Negotiable Instruments Act.
2. The respondent's failure to prove the source of income.
3. The authenticity of the cheque and the revisionist's signature.
4. Alleged theft of the cheque.
5. The adequacy of the punishment and compensation awarded.

Detailed Analysis:

1. Validity of the Conviction under Section 138 of the Negotiable Instruments Act:
The revisionist was convicted under Section 138 of the Negotiable Instruments Act by the Judicial Magistrate First Class, Gwalior, which was upheld by the 14th Additional Sessions Judge, Gwalior. The revisionist challenged the conviction, arguing that the respondent failed to prove the source of income and the legal liability for the cheque. The court noted that the revisionist had issued a cheque dated 28th January 2014, which was dishonored due to the account being blocked. Despite the revisionist's claim that the cheque was stolen, the court found inconsistencies in her statements and noted that no FIR was lodged regarding the alleged theft. The court emphasized that the revisionist had not disputed her signature on the cheque initially, and the presumption under Section 139 of the Negotiable Instruments Act was not rebutted by her.

2. The Respondent's Failure to Prove the Source of Income:
The revisionist argued that the respondent did not disclose his source of income and had not filed an Income Tax Return. The court held that non-filing of an Income Tax Return does not automatically discredit the respondent's source of income. The respondent had provided a plausible explanation for his income and the loan transaction. The court noted that the revisionist failed to disprove the presumption of consideration under Section 139 of the Negotiable Instruments Act.

3. The Authenticity of the Cheque and the Revisionist's Signature:
The revisionist claimed that the cheque did not bear her signature and was forged. The court observed that the revisionist did not take any steps to verify the authenticity of her signature through a Handwriting Expert. The court also noted that the bank did not return the cheque due to a discrepancy in the signature but because the account was blocked. The court found that the revisionist's signature on the cheque resembled her specimen signatures available with the bank, and her inconsistent statements weakened her defense.

4. Alleged Theft of the Cheque:
The revisionist claimed that the cheque was stolen from her husband's shop, but in her registered notice, she mentioned that it was stolen from the drawer of her computer table. The court found this inconsistency significant and noted that no FIR was lodged regarding the theft. The court concluded that the revisionist's claim of theft was not credible and appeared to be an afterthought to evade liability.

5. Adequacy of the Punishment and Compensation Awarded:
The trial court had imposed a punishment of admonition and awarded compensation of ?12,69,000/- to the respondent. The court held that the punishment was lenient, considering the facts of the case. The Supreme Court's precedent in Suganthi Suresh Kumar vs. Jagdeeshan was cited, emphasizing that the punishment should reflect the seriousness of the offense. However, since the respondent did not challenge the lenient punishment, the court affirmed the trial court's decision. The compensation amount was calculated with interest at 9% per annum from the date of the trial court's judgment until actual payment.

Conclusion:
The court dismissed the revision, upholding the conviction and the compensation awarded. The revisionist's inconsistent statements and failure to rebut the presumption under Section 139 of the Negotiable Instruments Act were crucial in affirming the lower courts' judgments. The court directed that the compensation amount shall carry interest at 9% per annum from the date of the trial court's judgment until payment is made.

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