2021 (4) TMI 1236 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - opportunity of hearing provided or not - Section 138 of NI Act - HELD THAT - Petitioner filed the said petition dated 17/11/2015 in the trial court after the petitioner was examined under Section 313 Cr.P.C. and the case was listed for arguments. The trial court vide order dated 26/11/2015 disposed the petition holding that adequate opportunity was provided to the petitioner to rebut the case by adducing his own evidence and it would not be proper to turn back the clock without any justifiable ground. Section 243 Cr.P.C. provides that if the accused in a criminal trial who has entered upon his defence applies to the court for the purpose of examination or cross examination, or the production of any document or other thing, the magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or defeating the ends of justice. The court is required to record the reasons in writing while rejecting such application. Admittedly the petitioners were jointly carrying on partnership business of manufacturing and selling of bricks in the name of MAA Brick Society and they used to operate the accounts of their company in their joint names. It has been proved beyond doubt that the complainant supplied coal to them for which they had an existing liability to the complainant and in the discharge of such liability the petitioners jointly issued the impugned cheque to the complainant which was later dishonoured for insufficiency of fund. The courts below have returned the findings of guilt of the petitioners on proper appreciation of evidence and held the petitioners guilty and sentenced them appropriately. Revision dismissed.

Summary

Issues Involved:
1. Conviction under Section 138 of the Negotiable Instruments Act.
2. Denial of fair trial due to rejection of petition for handwriting expert examination.
3. Adequacy of evidence for proving existing debt and issuance of cheque.
4. Comparison of disputed signatures under Section 73 of the Indian Evidence Act.

Detailed Analysis:

1. Conviction under Section 138 of the Negotiable Instruments Act:
The petitioner was convicted for the offence under Section 138 of the NI Act by the Judicial Magistrate First Class, Sabroom, for issuing a cheque that was dishonoured due to insufficient funds. The trial court sentenced the petitioner to pay a fine of ?1 lakh. The conviction and sentence were upheld by the Sessions Judge in South Tripura at Belonia. The petitioner challenged these judgments through a Criminal Revision Petition.

2. Denial of Fair Trial due to Rejection of Petition for Handwriting Expert Examination:
The petitioner argued that the trial court's rejection of his request to send the cheque for handwriting expert examination amounted to a denial of fair trial. The petitioner relied on the Supreme Court's decision in Kalyani Baskar (Mrs) vs. M.S. Sampooranam (Mrs), which held that denying such a request deprives the accused of the opportunity to rebut the prosecution's case. The trial court had rejected the petition on the grounds that adequate opportunity had already been provided to the petitioner to present his evidence.

3. Adequacy of Evidence for Proving Existing Debt and Issuance of Cheque:
The complainant (PW-1) testified that he supplied coal to the accused's brick kiln and received a cheque for ?1 lakh, which was dishonoured. The cheque was issued by the petitioner and his co-accused, who were partners in the brick kiln business. The complainant's testimony was corroborated by PW-2 (his advocate) and PW-3 (the bank manager). The petitioner denied issuing the cheque and claimed that no documentary evidence was provided to prove the coal supply. However, the trial court found the complainant's evidence credible and sufficient to establish the debt and the issuance of the cheque.

4. Comparison of Disputed Signatures under Section 73 of the Indian Evidence Act:
The Sessions Judge compared the disputed signatures on the cheque with the petitioner's signatures recorded under Section 313 Cr.P.C., concluding that they matched. The court also relied on the bank manager's testimony, who confirmed the signatures' genuineness. The Sessions Judge's comparison was done under Section 73 of the Indian Evidence Act, which allows the court to compare disputed signatures with admitted ones.

Conclusion:
The High Court dismissed the revision petition, affirming the concurrent findings of the lower courts. The court found no infirmity in the judgments and held that the evidence sufficiently proved the petitioner's guilt. The petitioner was directed to pay the fine within three months or face the default sentence. The court also allowed the petitioner to request payment in instalments, subject to the trial court's discretion. The petition was disposed of, and any pending applications were also dismissed.