2020 (10) TMI 111 - HC - Indian Laws

Dishonor of Cheque - section 138 of NI Act - benefit of presumption - blank cheque issued for obtaining loan or not - whether a revisional court can, in exercise of its discretionary jurisdiction, interfere with an order of conviction in absence of any jurisdictional error or error of law? - Whether the payee of a cheque is dis entitled to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, of a cheque duly drawn, having been issued in discharge of a debtor or other liability? HELD THAT - From the evidence of the witness examined by the respondent accused, case of the prosecution is supported that money transaction was carried out between the parties. An agreement to sell of the land in question was executed before the Notary on 5th December 2012 and it appears that photographs of the parties as well as their signatures are never disputed except in the cross examination of the complainant - It is well settled that in exercise of revisional jurisdiction, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re analyse and re interpret the evidence on record. Here it is not the case of the respondent accused that she either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In the absence of any finding that the cheque in question was not signed by the respondent accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant complainant, it may reasonably be presumed that the cheque was filled in by the appellant complainant being the payee in the presence of the respondent accused being the drawer, at her request and/or with her acquiescence. The Trial Court as well as first Appellate Court have committed no error in rejecting plea raised by the respondent accused that blank cheque was received by the complainant to obtain the loan from the bank - Application dismissed.

Issues Involved:
1. Validity of the conviction under Section 138 of the Negotiable Instruments Act.
2. Applicability of the presumption under Section 139 of the Negotiable Instruments Act.
3. Consideration of evidence and documentary proof.
4. Jurisdictional and legal errors by the lower courts.
5. Interim relief and compliance with court orders.

Detailed Analysis:

1. Validity of the conviction under Section 138 of the Negotiable Instruments Act:
The applicant challenged the conviction under Section 138 of the Negotiable Instruments Act, which pertains to the dishonor of a cheque due to insufficient funds. The trial court found that the applicant had issued a cheque for ?9 lakhs, which was dishonored due to insufficient funds. The statutory notice of dishonor was duly issued, and the applicant failed to respond or make the payment. The appellate court confirmed these findings, leading to the conviction of the applicant.

2. Applicability of the presumption under Section 139 of the Negotiable Instruments Act:
The courts relied on Section 139, which presumes that the holder of a cheque received it for the discharge of a debt or liability unless proven otherwise. The applicant argued that the cheque was misused by the complainant, but both the trial and appellate courts rejected this defense, finding that the cheque was issued voluntarily and for a legitimate debt.

3. Consideration of evidence and documentary proof:
The courts examined various pieces of evidence, including the agreement to sell, the cheque, and the statutory notice. The complainant's testimony and documentary evidence supported the claim that the cheque was issued for a legitimate debt. The applicant's defense, including the claim that the cheque was signed under different circumstances, was not substantiated by credible evidence.

4. Jurisdictional and legal errors by the lower courts:
The applicant contended that the lower courts erred in their judgment by not properly appreciating the evidence and misinterpreting the law. However, the High Court found no jurisdictional error or error of law in the concurrent findings of the lower courts. The courts adhered to the legal provisions and correctly applied the presumption under Section 139.

5. Interim relief and compliance with court orders:
The applicant sought to continue interim relief to approach a higher forum, but the High Court rejected this request. The court noted that the applicant had not complied with the order to deposit ?7 lakhs, which was a condition for the interim relief. Consequently, the interim relief was vacated.

Conclusion:
The High Court dismissed the application, confirming the judgments of the lower courts. The conviction under Section 138 of the Negotiable Instruments Act was upheld, and the presumption under Section 139 was deemed applicable. The courts found no merit in the applicant's defenses and arguments, leading to the dismissal of the revision application and the vacation of interim relief.

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