2021 (5) TMI 495 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - legally enforceable debt or not - disputed cheque was drawn for discharging the whole and/or part such debt or other liability - rebuttal of presumption - HELD THAT - The petitioner in this case, did not raise any probable defence which would create doubts in the mind of the Court. He did not deny the fact that he had taken loan from the complainant. His defence as made out in his examination under Section 313 Cr. P.C is that he has repaid the loan. The issuance of the impugned cheque by him and the fact that the cheque was dishonoured for insufficiency of fund in his account also stand proved. In the present case, the trial Court as well as appellate Court have come to the conclusion that the accused had taken loan from the complainant for which he issued the impugned cheque which was dishonoured by bank for insufficiency of fund in his account. The signature of the accused petitioner on the impugned cheque has been proved. The accused did not lead any evidence to rebut the presumption taken by the Courts below under Section 139, N.I Act. He did not even come in the witness box to support his case. There are no reason to interfere with the conviction of the petitioner under Section 138, N.I Act - In so far as his sentence is concerned, the trial Court, as stated, has convicted the petitioner to rigorous imprisonment for one year and also a fine of ₹ 2,00,000/- which is twice the amount of the impugned cheque. Said sentence of the petitioner has also been upheld by the appellate Court. While upholding his conviction, it is directed that convict petitioner shall pay fine of ₹ 1,50,000/- at the trial Court within 2(two) months from today which on realisation be paid to the complainant, failing which accused petitioner will suffer Simple Imprisonment for six months. The criminal revision petition is thus partly allowed.

Summary

Issues Involved:
1. Legally enforceable debt.
2. Issuance of cheque to discharge debt.
3. Dishonour of cheque due to insufficient funds.
4. Rebuttal of presumption under Section 139, N.I. Act.
5. Scope of High Court's revisional jurisdiction under Sections 397/401 Cr.P.C.
6. Appropriateness of sentence imposed.

Detailed Analysis:

1. Legally Enforceable Debt:
The complainant alleged that he lent ?1,00,000 to the accused, who acknowledged the loan by issuing a money receipt (Exbt.1). This was supported by the testimonies of PWs 2 and 3, who were present during the transaction. The accused did not deny taking the loan but claimed to have repaid it. The trial and appellate courts found the existence of the debt legally enforceable based on the evidence presented.

2. Issuance of Cheque to Discharge Debt:
The accused issued cheque No.779314 dated 05.03.2015 drawn on United Bank of India to discharge the said debt. The cheque was presented for encashment but was dishonoured due to insufficient funds. The complainant issued a statutory demand notice, which the accused failed to comply with, leading to the initiation of proceedings under Section 138, N.I. Act.

3. Dishonour of Cheque Due to Insufficient Funds:
The cheque was returned unpaid due to insufficient funds in the accused's account, as evidenced by the return memo (Exbt.4). Despite receiving the demand notice, the accused did not repay the loan, prompting the complainant to file a complaint under Section 138, N.I. Act.

4. Rebuttal of Presumption Under Section 139, N.I. Act:
Section 139, N.I. Act, presumes that the cheque was issued for discharging an existing debt or liability. The accused did not provide any substantial evidence to rebut this presumption. His claim of having repaid the loan was not supported by any evidence, and he did not deny issuing the cheque or the insufficiency of funds in his account.

5. Scope of High Court's Revisional Jurisdiction Under Sections 397/401 Cr.P.C.:
The High Court's revisional jurisdiction is supervisory and not equivalent to appellate jurisdiction. It is not appropriate for the High Court to reappreciate evidence unless there is a glaring feature indicating gross miscarriage of justice. The trial and appellate courts' findings were based on sound evidence, and no such glaring feature was identified.

6. Appropriateness of Sentence Imposed:
The trial court sentenced the accused to rigorous imprisonment for one year and a fine of ?2,00,000, which was upheld by the appellate court. However, considering the nature of the offence under the N.I. Act, which is akin to a civil wrong, and the accused's age, occupation, and past records, the High Court modified the sentence. The accused was directed to pay a fine of ?1,50,000 within two months, failing which he would undergo simple imprisonment for six months.

Conclusion:
The conviction under Section 138, N.I. Act, was upheld, but the sentence was modified. The accused is to pay ?1,50,000 as fine within two months, or face six months of simple imprisonment. The criminal revision petition was partly allowed, and the case was disposed of accordingly.