2021 (2) TMI 492 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - as mandated under the provisions legal notice is also given to the applicant to which he did not respond and nor any payment has been made - section 138 of Negotiable Instruments Act - order assailed inter alia on the grounds that the trial Court has rejected the discharge application without considering the facts and circumstances of the case, and also without applying judicial mind as mandated under Section 204 (2) Cr.P.C. - HELD THAT - In the present case specific and serious allegations have been levelled by the complainant by unequivocally stating that he had been given a cheque by the applicant which was dishonored due to insufficient funds. Learned counsel appearing for opposite party no. 2 has also disclosed the fact that amount in question was payable to him by the applicant. He has also stated that opposite party no. 2 had duly informed the applicant about the dishonour of the cheque and the applicant had not made by response to the said notice, pursuant to which complaint was filed and summons were issued to the applicant. It is clear that prima-facie case under Section 138 of Negotiable Instruments Act is made out against the applicant and during trial the applicant shall have full opportunity to lead evidence in his defense, but on the application for discharge mini trial cannot be conducted and unless it is proved in evidence during trial, benefit of the facts as narrated by the applicant cannot be given to him - The facts as stated by the applicant will have to be duly proved during trial and bald assertions cannot be accepted at the stage of discharge. No explanation was forthcoming from the applicant as to why he did not informed the bank when his cheque was lost. There is no infirmity with the order of the revisional Court - Application dismissed.

Summary

Issues:
Challenge to the legality and validity of the order dated 28/08/2019 passed by the Sessions Judge, Balrampur in Criminal Revision number 42/2019.

Analysis:
The applicant challenged the order dated 28/08/2019, wherein the revisional Court upheld the order of the trial Court rejecting the discharge application. The complaint under Section 138 of the Negotiable Instruments Act alleged that the applicant had issued a cheque that was dishonored due to insufficient funds. The applicant contended that he had repaid the amount and that the complainant falsely implicated him. The applicant's defense included the loss of his bag containing the cheque, which was allegedly discovered and misused by the complainant.

The trial Court dismissed the discharge application, and subsequent revisions were also rejected. The complainant argued that a clear case under Section 138 of the NI Act was established, as the cheque issued by the applicant bounced due to insufficient funds, and legal notice sent to the applicant remained unanswered. The applicant's defense of the lost cheque and subsequent misuse was countered by the complainant, highlighting inconsistencies in the applicant's actions and statements.

The revisional Court considered the facts presented by both parties, including the dishonored cheque, legal notice, and the applicant's admission of signatures on the cheque. The Court noted the applicant's occupation, payment history, and the circumstances surrounding the issuance and dishonor of the cheque. The Court emphasized that the applicant's defense needed to be proven during trial, and bald assertions were insufficient at the discharge stage. The Court found a prima facie case under Section 138 of the NI Act against the applicant, allowing for a full defense during trial.

In conclusion, the Court found no infirmity in the revisional Court's order, dismissing the applicant's challenge. The Court emphasized the need for evidence during trial to support the applicant's claims and highlighted the lack of explanation for the applicant's actions regarding the lost cheque. The application was deemed lacking in merit and subsequently dismissed.