2020 (12) TMI 509 - HC - Indian Laws

Dishonor of Cheque - rebuttal of presumption or not - allegation that the complainant has proved beyond reasonable doubt that the accused have committed an offence punishable under Section 138 of N.I.Act as alleged in the complaint - HELD THAT - The evidence of DW-2, DW-3 and DW-4 are on line with the evidence of DW-1 and they have fully supported the evidence of DW-1. All these four witnesses though were subjected to a detailed cross- examination from the complainant side, but, nothing could be elicited in their cross-examination favouring the complainant. On the other hand, even in their cross- examination, they have given some more details of the alleged transaction and how they were cheated by Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab and the complainant. In the cross-examination of PW-1-the complainant, he has clearly stated that accused were not known to him earlier and he had not seen them on any day prior to the date of registration of the Sale Deed. Though it was suggested to him that even on the date of alleged Sale Deed also, he has not seen the accused, but, the witness has denied the said statement. However, the fact remains that, even according to the complainant, the accused were strangers to him till the date of the Sale Deed. That being the case, even without knowing the accused, how could he came to enter into an agreement of sale with the said accused and with Smt.Lokamatha Seshadri, is not understandable. The complainant, as PW-1, rather than placing his case more effectively and rather than standing by in support of his contention, has in his cross-examination, admitted several of the suggestions favouring the accused and also has made several statements which not only has weakened his case, but, also strengthened the contentions of the accused. To the height of it, the very same PW-1 in his cross- examination has also stated that, in the dishonoured cheques at Exs.P-2 to P-4, it is himself who has filled the name of the payee' in it. This also supports the contention of the accused that they had never issued the cheques in favour of the complainant, rather, they had issued the cheques in favor of vendors Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab until their agreement with them stood rescinded. The evidence since clearly go to show that to claim any benefit under those instruments, neither the complainant nor the said Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab have not passed any consideration to the accused and there being no legally enforceable debt as on the date of presentation of the cheques, none of them were entitled for the cheque amount. Thus, the presumption under Section 139 of N.I.Act has been successfully rebutted from the accused side. Since the complainant could not able to prove the legally enforceable debt in his favour, he fails in his action against the accused for the offence punishable under Section 138 of N.I.Act - Since the trial Court has rightly come to the said finding and acquitted the accused from the alleged offence, there are no reason to interfere in the said finding. The order acquitting the respondents/accused for the offence punishable under Section 138 of N.I.Act, is confirmed - appeal dismissed.

Summary

Issues Involved:
1. Whether the complainant has proved beyond reasonable doubt that the accused have committed an offence punishable under Section 138 of N.I. Act as alleged in the complaint?
2. Whether the judgment under appeal deserves interference by this Court?

Issue-wise Detailed Analysis:

1. Proof of Offence under Section 138 of N.I. Act:
The complainant alleged that the accused issued three cheques as part of the sale consideration for a property, which were dishonoured upon presentation. The trial court acquitted the accused, and the complainant appealed. The complainant entered into a Memorandum of Understanding/Sale Agreement with two individuals for a property and subsequently entered into an agreement with another party to sell the same property to any third party. The original owners executed the Sale Deed in favor of the accused, who issued three cheques that were dishonoured. The complainant issued a legal notice, which the accused did not respond to, leading to the criminal case.

The trial court found the complainant to be a stranger to the transaction between the accused and the vendors. The complainant failed to produce any documents substantiating his agreements with the vendors and subsequent purchasers. The accused argued that the cheques were issued to the original vendors, not the complainant, and were stopped due to a property dispute. The complainant admitted he was not the registered Sale Deed holder and did not produce any agreement documents. The accused provided evidence of the property dispute and the involvement of other parties in the transaction.

2. Judgment Under Appeal:
The trial court's judgment was based on the lack of a legally enforceable debt in favor of the complainant. The accused successfully rebutted the presumption under Section 139 of the N.I. Act by proving the complainant was not involved in the transaction and the cheques were issued to other parties. The complainant's admissions during cross-examination weakened his case. The accused provided detailed evidence of the property dispute and the involvement of other parties, supporting their claim that the complainant was not the rightful payee of the cheques.

The High Court found no reason to interfere with the trial court's judgment, confirming the acquittal of the accused. The complainant failed to prove the existence of a legally enforceable debt, and the presumption under Section 139 was successfully rebutted by the accused. The appeal was dismissed, and the trial court's judgment was upheld.

Order:
The Criminal Appeal is dismissed. The judgment passed by the learned XXII Addl. Chief Metropolitan Magistrate and XXIV Addl. Small Causes Judge, Bengaluru City, in C.C.No.15317/2007, dated 24.06.2010, acquitting the respondents/accused for the offence punishable under Section 138 of N.I. Act, is confirmed. The Registry is directed to transmit a copy of this judgment along with trial court records to the concerned court without delay.