2020 (11) TMI 506 - HC - Indian Laws

Dishonor of Cheque - offence punishable under Section 138 of NI Act - legally enforceable debt or not - allegation is that the cheques of the petitioner/accused have been forcibly taken away by one Meena Pandi, for which, complainant was also lodged and the cheques, which were forcibly taken have been misused through the respondent/complainant and different others under the provisions of the NI Act - HELD THAT - The cheque ExP1 belongs to the petitioner and the same has not been denied. The cheque ExP1 was presented for collection by the respondent/ complainant on 16.09.2010 and the same was returned with an endorsement 'account closed'. The respondent issued statutory notice dated 13.10.2010 and the same was returned unserved as 'unclaimed' and hence, the complaint was filed - Since the issuance of cheque ExP1 is admitted, the presumption under Section 139 of the Negotiable Instruments Act is attracted. To discharge the presumption, the petitioner / accused has examined himself as DW1 and examined his father as DW2. ExR1 to ExR19 were also marked before the Court, to rebut the presumption. The case of the petitioner/accused is that the account in Kotak Mahindra Bank was maintained at Adayar Branch as a salary account, when he was working in a Call Centre at Chennai and the said account was closed a long ago. The petitioner/accused neither knew the complainant nor borrowed any money. His father DW2, borrowed money from one Meena Pandi and in that transaction, the petitioner/accused had given two blank cheques to the said Meena Pandi. According to the petitioner/accused, the said loan transaction with Meena Pandi was fully discharged. However, Meena Pandi demanded more interest and refused to return the blank cheques, which were given to him by his father as a collateral security - DW2 lodged a complaint to the Superintendent of Police, Thanjavur as well as to the Chief Minister's Cell on 03.01.2011 against the said Meena Pandi. One of the said blank cheques has been misused by the said Meena Pandi, through his friend/ complainant and other Binamis. The trial Court also found that the cheque number of this ExP1 has not been mentioned in the said complaints ExR1 and ExR2 and the statutory notice in this case was issued on 13.10.2010 and this complaint was made only on 03.01.2011. Considering all these points, the contention of the petitioner/accused was rightly rejected the Courts below - Though the petitioner has attempted to rebut the presumption, he was not successful in rebutting the presumption and as pointed out by the learned Counsel for the respondent/complainant that the service of notice is sufficient in this case. The criminal revision case is partly allowed - conviction rendered by the learned Judicial Magistrate Fast Track Court at Magestrial Level , Thanvur is confirmed.

Summary

Issues Involved:
Petitioner's appeal against conviction under Section 138 of NI Act, service of statutory notice, presumption under Section 139 of NI Act, defense of forged cheque, modification of sentence.

Analysis:

1. Appeal Against Conviction Under Section 138 of NI Act:
The petitioner filed a revision petition challenging the concurrent findings of the trial Court and the appellate Court convicting him for the offence under Section 138 of the Negotiable Instruments Act (NI Act). The complaint alleged that the petitioner borrowed a sum of money and issued a cheque which was dishonored. The trial Court and the appellate Court found the petitioner guilty, leading to the appeal.

2. Service of Statutory Notice:
The petitioner argued that the statutory notice required under the NI Act was not served upon him properly. The complainant claimed to have sent the notice to the petitioner's office address, while the petitioner resided nearby. The petitioner contended that the notice was not validly served, raising doubts about the legal requirements.

3. Presumption Under Section 139 of NI Act:
The Court noted that the cheque in question was admitted to belong to the petitioner and was dishonored. This invoked the presumption under Section 139 of the NI Act, shifting the burden to the petitioner to rebut the presumption. The petitioner attempted to rebut the presumption by presenting his defense and examining witnesses, but the Court found his defense insufficient.

4. Defense of Forged Cheque:
The petitioner's defense revolved around the claim that the cheque was forcibly taken by a third party and misused without his knowledge. However, the trial Court and the appellate Court rejected this defense, as the complaints filed did not support the petitioner's version and the statutory notice was issued before the complaints were made.

5. Modification of Sentence:
Considering the petitioner's plea that he was the sole breadwinner of his family, the Court modified the sentence from one year simple imprisonment to three months and directed the petitioner to pay compensation to the complainant. The Court balanced the need for punishment with the petitioner's circumstances, providing a chance for compliance with the compensation order.

This comprehensive analysis covers the key issues raised in the legal judgment, detailing the arguments, findings, and the final decision of the High Court in the case.