2020 (11) TMI 504 - HC - Indian Laws

Dishonor of Cheque - commission of the offence punishable under Section 138 of the NI Act against the accused - issuance of Cheque for the discharge of debt or liability - rebuttal of presumption as provided by the provisions of Sections 118 and 139 of the NI Act - HELD THAT - Applying the definition of the word proved in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the NI Act it becomes evident that in a trial under Section 138 of the NI Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Needless to say that as and when the complainant discharges the burden to prove that the cheque was executed by the accused the rules of presumptions under Sections 118 and 139 of the NI Act are very much available to the complainant and the burden shifts on the accused. However this presumption is rebuttable. Under the circumstances it is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is well settled law that when concurrent findings of facts rendered by the trial court and the appellate court are sought to be set aside in revision the High Court does not in the absence of perversity upset factual findings arrived at by the two courts below. It is not for the revisional court to re-analyse and reinterpret the evidence on record in a case where the trial court has come to a probable conclusion. Unless the contrary is proved it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge in whole or in part of any debt or other liability. In the case at hand the accused has no case that he has not signed the cheque or parted with under any threat or coercion. That apart the accused has no case that unfilled cheque had been lost irrecoverably or stolen. The accused failed to prove in the trial by leading cogent evidence that there was no debt or liability. Both the trial court and the appellate court rightly held that the burden was on the accused to disprove the initial presumption under Sections 118 and 139 of the NI Act. The burden is not discharged rightly. Hence the conviction of the accused for the offence under Section 138 of the NI Act is only to be upheld. Validity of sentences imposed - HELD THAT - Ext.P1 cheque was executed as early as on 31.08.2007. The accused has been conducting this criminal case for the last 13 years. Considering the facts and circumstances it is just and proper to modify the sentence awarded by the two courts below by sustaining the conviction imposed. The conviction against the accused under Section 138 of the NI Act is confirmed - The accused is sentenced to pay a fine of 2, 00, 000/- and in default of payment of fine to undergo simple imprisonment for a period of three months - In case the fine amount is deposited by the accused before the trial court as ordered the same shall be disbursed to the complainant as compensation in accordance with rules - The criminal revision petition is partly allowed.

Summary

Issues:
1. Conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881.
2. Examination of evidence and burden of proof in a case involving dishonoured cheque.
3. Application of presumptions under Sections 118 and 139 of the NI Act.
4. Interpretation of legal principles regarding repayment of cheque amount and liability under Section 138.
5. Review of concurrent findings of the trial court and the appellate court in a revision petition.

Analysis:

1. The judgment deals with a criminal revision petition challenging the conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881. The accused was convicted by the trial court and the Additional Sessions Court for issuing a cheque that was dishonoured due to insufficient funds. The High Court reviewed the case to determine if the conviction was justified.

2. The court examined the evidence presented during the trial, where the complainant alleged that the accused borrowed a sum and issued a cheque that bounced due to insufficient funds. The accused denied the allegations but failed to provide substantial evidence to support his defense. The court considered the testimonies and evidence to establish the liability of the accused.

3. The judgment delves into the application of presumptions under Sections 118 and 139 of the NI Act. It explains that once the execution of a negotiable instrument like a cheque is proved or admitted, certain presumptions come into play, such as the instrument being made for consideration and to discharge a debt. These presumptions shift the burden of proof to the accused to rebut them with evidence.

4. Legal principles regarding the repayment of the cheque amount and liability under Section 138 were also discussed. The court analyzed a previous case where partial repayment affected the validity of the cheque amount. In this case, the court found that the accused failed to prove any repayment that would impact the liability under the cheque issued, leading to the confirmation of the conviction.

5. Finally, the judgment emphasized the importance of respecting concurrent findings of fact by the trial court and the appellate court unless there is perversity. The High Court upheld the conviction under Section 138 of the NI Act due to the accused's failure to disprove the initial presumptions. The sentence was modified considering the prolonged duration of the case and the current circumstances, providing the accused with an extended timeline to pay the fine.

This detailed analysis of the judgment showcases the thorough examination of evidence, legal principles, and application of presumptions that led to the decision in the case.