2019 (8) TMI 249 - HC - Indian Laws

Dishonor of cheque - sufficiency of funds - rebuttal of presumption - offence punishable under Section 138 of the Negotiable Instruments Act,1881 - plea of the accused is that he had subscribed to the kuri conducted by the firm 'Crown Kuries' and when he received the kuri amount, he had given a signed blank cheque as security - HELD THAT - The evidence of the complainant, where it is found to be credible and trustworthy, is sufficient to conclude that the cheque was duly executed by the accused and delivered to him. Corroboration is a rule of prudence and not one of law. Whether corroboration to the evidence of the complainant is required or not would depend upon the circumstances of each case - In the instant case, in the light of the inconsistency in the evidence of PW1 regarding the drawing and delivering of the cheque by the accused, examination of the independent person, who had allegedly seen the accused drawing and delivering the cheque to the complainant, was necessary. But the complainant did not prefer to examine that person as a witness. In the instant case, the accused has raised a plea which is probable and acceptable. He entered the witness box and gave evidence in support of his plea. Admittedly, the complainant is a partner of the firm 'Crown Kuries'. The plea of the accused that, he had given a signed blank cheque when he received the kuri amount from Crown Kuries, is highly probable - It is undoubtedly true that when a cheque is signed and issued by a person and the complainant reasonably discharges the initial burden of proving execution of the cheque by the accused, the burden is upon the accused to rebut the presumption under Section 139 of the Act. But the standard of proof required for rebutting any such presumption is not as high as that required of the prosecution. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. Whether or not it is so in a given case depends upon the facts and circumstances of that case. It is trite that the courts can take into consideration the circumstances appearing in the evidence to determine whether the presumption should be held to be sufficiently rebutted. Even while exercising the appellate power against a judgment of acquittal, the High Court should bear in mind the well-settled principle of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the trial court. An order of acquittal can be interfered with only under compelling grounds or circumstances - there is no reason to upset the verdict of acquittal passed by the court below. Appeal dismissed.

Summary

Issues:
Challenge against acquittal under Section 138 of the Negotiable Instruments Act, 1881.

Analysis:
1. The appellant, as the complainant, challenged the trial court's judgment acquitting the accused of the offence under Section 138 of the Act. The complainant alleged that the accused issued a cheque in discharge of a debt, which was dishonored due to insufficient funds. The trial court acquitted the accused due to lack of proof of cheque execution.

2. The complainant presented evidence through PW1 and exhibits P1 to P6. The accused, as DW1, claimed he provided a blank cheque as security for a kuri subscription with 'Crown Kuries,' alleging misuse by the complainant. The trial court found the complainant's evidence insufficient to prove the debt or cheque execution.

3. The trial court highlighted the absence of debt details in the complaint, inconsistencies in PW1's testimony regarding cheque execution, and the lack of an independent witness to corroborate the transaction. The court found valid reasons to doubt the complainant's evidence.

4. The appellant contended that the accused's plea was probable, supported by his testimony and the absence of documents proving kuri subscription. The appellant argued that the accused's failure to reply to the statutory notice favored the complainant, but the court emphasized that such failure alone does not prove the complainant's case.

5. The court noted that the burden to rebut the presumption under Section 139 of the Act lies with the accused, requiring a reasonable probability in his version. Referring to a Supreme Court case, the court emphasized the need for material evidence to support loan transactions, which was lacking in this case.

6. The court reiterated the principle that interference with an acquittal should only occur under compelling circumstances. Considering the evidence and circumstances, the court upheld the trial court's verdict of acquittal, dismissing the appeal.