2020 (1) TMI 387 - HC - Indian Laws

Dishonor of Cheque - Section 138 of the Negotiable Instruments Act - rebuttal of presumptions - HELD THAT - It appears that admittedly the cheques in question were issued by the petitioner in favour of the complainant. It is also an admitted fact that all the cheques were dishonoured when the complainant presented the same for encashment. In the present case the materials placed on record show that both the Learned Courts below came to the concurrent findings that the petitioner issued the cheques in question in discharge of his liability to repay the loan as par the loan agreement. Issuance of cheques in question is an admitted fact. Defence was taken by the petitioner that those cheques were issued by him for consultancy which the complainant was required to provide him. The said consultancy was not provided to him. But the petitioner has totally failed to discharge that burden by adducing cogent and convincing evidence - I do not find any ground to interfere with the concurrent findings of both the Learned Courts below. It is well settled principle of law that in exercise of its power under Section 482 of the Code of criminal Procedure the High Court should not in absence of perversity upset concurrent factual findings of Trial Court and Appellate Court. Moreso the High Court in exercise of its inherent power should not re-analyze and reassess the materials particularly the evidence on record - On perusal of the entire materials on record it can be said that the Learned Courts below have rightly come to the conclusion that the petitioner committed an offence punishable under Section 138 of the Negotiable Instruments Act. Application dismissed.

Summary

Issues involved:
Challenge to judgment under Section 482 of CrPC, conviction under Section 138 of Negotiable Instruments Act, liability to repay loan, dishonored cheques, limitation period for complaint, presumption under Section 118 of NI Act, concurrent findings of Trial Court and Appellate Court.

Analysis:

1. Challenge to judgment under Section 482 of CrPC:
The petitioner filed an application under Section 482 of the CrPC challenging the judgment and order passed by the Learned Additional Sessions Judge, confirming the conviction and sentence imposed by the Learned Judicial Magistrate under Section 138 of the Negotiable Instruments Act.

2. Conviction under Section 138 of Negotiable Instruments Act:
The petitioner was convicted for issuing dishonored cheques under Section 138 of the NI Act. The complainant alleged that the petitioner issued post-dated cheques in favor of the complainant to repay a friendly loan, but the cheques were dishonored upon presentation.

3. Liability to repay loan:
The petitioner contended that the cheques were issued in advance payment for consultancy services, which were not provided by the complainant. However, the courts found that the cheques were issued in discharge of the petitioner's liability to repay the loan as per the loan agreement, and the defense failed to provide convincing evidence to the contrary.

4. Dishonored cheques:
All the cheques issued by the petitioner were dishonored, leading to the complaint under Section 138 of the NI Act. The petitioner's argument that the cheques were not issued to discharge any existing liability was not accepted by the courts.

5. Limitation period for complaint:
The petitioner raised a plea that the complaint was time-barred. However, the Appellate Court observed that the delay in filing the complaint was due to a prolonged cease work called by the Bar Council, and the complaint was filed promptly after the cessation of the cease work.

6. Presumption under Section 118 of NI Act:
Section 118 of the NI Act provides a presumption that every negotiable instrument is made for consideration unless proven otherwise. The courts found that the presumption under this section was not rebutted by the petitioner, as the materials on record indicated that the cheques were issued in discharge of the petitioner's liability.

7. Concurrent findings of Trial Court and Appellate Court:
Both the Trial Court and the Appellate Court arrived at concurrent findings that the petitioner issued the cheques in question to repay the loan as per the agreement. The High Court upheld the principle that it should not interfere with factual findings unless there is perversity.

In conclusion, the High Court dismissed the application under Section 482 of the CrPC, upholding the conviction of the petitioner under Section 138 of the NI Act based on the concurrent findings of the lower courts. The judgment emphasized the importance of not re-analyzing evidence in the exercise of inherent powers.