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2021 (3) TMI 1135 - HC - Indian LawsDishonor of cheque - rebuttal of the evidence of the complainant as regards payment, not produced - blank cheque given as security, in absence of adequate evidence, relevant or not - section 138 of NI Act - HELD THAT - In the instant case, the accused petitioner admittedly has issued the cheque with his signature voluntarily but has failed to rebut the presumption that the cheque was not issued in discharge of debt or liability by producing requisite evidence. The Hon ble Apex Court in HITEN P. DALAL VERSUS BRATINDRANATH BANERJEE 2001 (7) TMI 1172 - SUPREME COURT , it has been held that mere plausible explanation given by an accused is not enough to rebut the presumption and accused has to disprove the prosecution case by giving cogent evidence that he has no debt or liability to issue the cheque. As a corollary of findings, it can be held that the accused petitioner failed to rebut the presumption under Section 139 of the NI Act and the learned Courts below has rightly appreciated the entire aspect of the matter and there being no any perversity in the findings, no interference is called for. Considering the aspect that the accused is an old aged person and also undertook to pay the amount, while maintaining the conviction, the sentence is converted to a fine of ₹ 9,50,000/- in default, SI for 6 months - petitioner is directed to deposit the amount before the learned trial Court within a period of 2 (two) months from today, failing which he will serve the sentence. The revision petition stands disposed of.
Issues Involved:
1. Legality of the conviction under Section 138 of the NI Act. 2. Adequacy of evidence to support the conviction. 3. Rebuttal of presumption under Sections 118 and 139 of the NI Act. 4. Capacity of the complainant to lend the amount. 5. Validity of the cheque as a security instrument. 6. Appropriate sentencing considering the age and health of the petitioner. Detailed Analysis: 1. Legality of the Conviction under Section 138 of the NI Act: The revision petition challenges the order dated 03.10.2018 by the learned Sessions Judge (FTC), Karimganj, affirming the conviction of the petitioner under Section 138 of the NI Act by the Additional CJM, Karimganj. The petitioner was sentenced to 6 months of simple imprisonment and a fine of ?14,00,000/-, with a default sentence of 2 months. 2. Adequacy of Evidence to Support the Conviction: The complainant alleged that the petitioner took loans totaling ?7,00,000 and issued a cheque for the same amount, which was dishonored due to insufficient funds. The trial court took cognizance of the offence based on the complaint and supporting affidavit, and the petitioner was subsequently released on bail. During the trial, the complainant and two bank officials testified, while the petitioner did not present any defense evidence. 3. Rebuttal of Presumption under Sections 118 and 139 of the NI Act: The petitioner argued that the cheque was issued as a security for a loan of ?1,00,000, which had already been repaid, and that the complainant filled in the amount of ?7,00,000. The petitioner contended that no presumption of debt or liability could be drawn under Sections 118 and 139 of the NI Act. However, the court noted that the petitioner failed to substantiate this claim with cogent evidence, and mere plausible explanations were insufficient to rebut the presumption. 4. Capacity of the Complainant to Lend the Amount: The complainant, a retired headmaster, claimed to have lent the petitioner ?7,00,000 from his retirement benefits. Bank statements corroborated the withdrawal of this amount, and the complainant's long-standing relationship with the petitioner was acknowledged. The court found no reason to doubt the complainant's financial capacity. 5. Validity of the Cheque as a Security Instrument: The court examined whether the cheque was issued as a security and found that the petitioner admitted to issuing the cheque and taking loans from the complainant. The petitioner’s inconsistent defense and lack of evidence to support his claim led the court to conclude that the cheque was indeed issued in discharge of a debt or liability. 6. Appropriate Sentencing Considering the Age and Health of the Petitioner: The petitioner, aged 71, requested leniency in sentencing. The court acknowledged his age and willingness to pay the cheque amount. Consequently, the sentence was modified to a fine of ?9,50,000, with a default sentence of 6 months' simple imprisonment. The petitioner was directed to deposit the amount within two months. Conclusion: The court found no perversity in the findings of the lower courts and upheld the conviction. The revision petition was disposed of with the modified sentence, and the petitioner was instructed to deposit the fine within the stipulated period.
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