2019 (9) TMI 883 - HC - Indian Laws

Dishonor of Cheque - discharge of a legally enforceable debt - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - rebuttal of presumption - HELD THAT - The circumstances enabled the accused to persuade the court to believe that he had not incurred any debt or liability to the complainant and that he had not issued the cheque to the complainant in discharge of any debt or liability. Thus, even if it is found that the specific plea set up by the accused as to the possession of his cheque by the complainant is not proved by him, he could succeed in rebutting the presumption under Section 139 of the Act by relying upon the facts and circumstances of the case set up by the complainant against him and also the facts and circumstances brought out in the evidence of the complainant. Then, in the absence of any reliable evidence adduced by the complainant to prove the transaction alleged by him, he has failed to prove that the accused committed an offence punishable under Section 138 of the Act. The judgment of the trial court acquitting the accused, does not warrant any interference by this Court in appeal - appeal dismissed.

Issues Involved:
1. Legally enforceable debt
2. Execution of the cheque
3. Rebuttal of presumption under Section 139 of the Negotiable Instruments Act
4. Credibility of the complainant's evidence
5. Accused's plea of coercion

Detailed Analysis:

1. Legally Enforceable Debt:
The complainant alleged that the accused issued a cheque for ?1,70,000/- towards the discharge of a legally enforceable debt. However, the trial court found suspicious circumstances regarding the execution of the cheque and the nature of the debt. The complainant failed to provide specific details of the transaction in the complaint or during the examination-in-chief, which affected the credibility of his claim. The absence of such details led the court to question the existence of any debt or liability.

2. Execution of the Cheque:
The trial court noted that the signature on the cheque belonged to the accused, but other entries were in different handwriting. The complainant did not have a definite case that the cheque was filled up in his presence, creating doubt about its execution. The court emphasized that even a blank cheque, if signed and handed over voluntarily, attracts the presumption under Section 139 of the Act. The accused, however, claimed that the cheque was signed under duress.

3. Rebuttal of Presumption under Section 139 of the Negotiable Instruments Act:
The accused presented evidence to rebut the presumption that the cheque was issued for payment of a debt. He claimed that the complainant and his partner forcibly took his cheque book and compelled him to sign two cheque leaves. The court found the evidence of DW1, who witnessed the incident, credible and unchallenged during cross-examination. The accused also provided complaints (Exts.D4 and D5) filed with the police regarding the incident, which the complainant admitted were genuine.

4. Credibility of the Complainant's Evidence:
The complainant's failure to disclose details of the transaction in the complaint and during the examination-in-chief affected the credibility of his evidence. The court noted that the complainant was aware of the accused's plea but did not address it in his initial testimony. The complainant's assertion that he lent ?1,70,000/- to the accused despite an existing debt of ?20,000/- was found implausible, especially since he claimed to have collected the amount from his parents without obtaining any security from the accused.

5. Accused's Plea of Coercion:
The accused's plea that the cheque was signed under threat and coercion was supported by DW1's testimony and the complaints filed with the police. The court found the delay in filing the police complaints insufficient to discredit the accused's plea. The evidence provided by the accused was compelling enough to rebut the presumption under Section 139 of the Act.

Conclusion:
The court concluded that the accused successfully rebutted the presumption under Section 139 of the Negotiable Instruments Act by relying on the complainant's case and the evidence presented. The complainant failed to prove the existence of a legally enforceable debt or the proper execution of the cheque. Consequently, the trial court's judgment acquitting the accused was upheld, and the appeal was dismissed.

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