2021 (5) TMI 974 - HC - Indian Laws

Dishonor of Cheque - Section 138 of the Negotiable Instruments Act, 1881 - allegation is that neither any witness was examined nor any documents were marked as exhibits - time limitation - rebuttal of presumption - Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court? - HELD THAT - The first point of argument of the learned counsel for the petitioner/accused that, the cheque was returned on 22-07-2010 whereas the notice was sent on 09-09-2010, thus the notice is barred by limitation, is not acceptable. Thus, from the date of the second dishonour of the cheque which was on 31-08-2010, the notice has been sent within the statutory period as has come out in the evidence of PW-1. Even though the alleged legal notice dated 09-09-2010 sent on behalf of the complainant to the accused is not marked as an exhibit, but the reply to the said notice which is at Ex. P-11 acknowledges the receipt of the said notice dated 09-09-2010 sent on behalf of the complainant by the accused. It is only after acknowledging the receipt of the said notice, the accused has proceeded to give his reply through Ex. P-11. Therefore, in the light of the un-denied and undisputed evidence of PW-1, which is further corroborated by the evidence of postal receipt and acknowledgement at Exs. P-7 to P-10, and more particularly, in the light of the acknowledgment of receipt of the notice by the accused through his reply at Ex. P-11, the mere non-marking of a copy of the legal notice sent by the complainant to the accused is not fatal to the case of the complainant. As such, the second and the final point of argument of the learned counsel for the petitioner/accused on the said aspect is also not sustainable. Rebuttal of presumption - HELD THAT - The un-denied evidence of PW-1 which is further corroborated by Exs. P-1 to P-12 would clearly go to show that, in response to the loan availed by the accused of a sum of ₹ 11,00,000/-, he had issued the cheque at Ex. P-3 to the complainant, which came to be dishonoured, when presented for its realisation, for the reason of insufficiency of funds. Thereafter, despite making a demand for payment of the cheque amount within time, the accused has failed to make good the payment of the same, as such, not only the presumption that has arisen in favour of the complainant under Section 139 of the N.I. Act, but also the un-denied evidence of PW-1 which is further corroborated by Exs. P-1 to P12 crystalises the said presumption in favour of the complainant proving the accused guilty of the alleged offence. Both the Trial Court as well the Sessions Judge's Court since have held the accused guilty of the alleged offence and since the Trial Court has passed an order on sentence proportionate to the gravity of the proven guilt, there are no perversity, illegality or irregularity, warranting interference at the hands of this Court. Criminal Revision Petition stands dismissed as devoid of merits.

Summary

Issues:
1. Conviction under Section 138 of the Negotiable Instruments Act, 1881.
2. Validity of legal notice and its timing.

Issue 1: Conviction under Section 138 of the Negotiable Instruments Act, 1881:
The accused availed a loan but failed to repay, leading to the issuance of a cheque that was dishonored twice due to insufficient funds. The complainant sent a legal notice demanding payment, which the accused did not fulfill. The Trial Court and Sessions Judge's Court both convicted the accused under Section 138 of the N.I. Act. The evidence of PW-1, the complainant, remained unchallenged, establishing the accused's guilt. The judgments were deemed appropriate, considering the evidence and the gravity of the offense.

Issue 2: Validity of legal notice and its timing:
The accused argued that the legal notice was sent beyond the statutory one-month period and was not marked as an exhibit in the Trial Court. However, the evidence showed that the notice was sent within the statutory period after the second dishonor of the cheque. Even though the legal notice was not marked as an exhibit, the accused's reply acknowledged its receipt, validating its sending. The non-marking of the notice did not affect the case's strength. The courts found the notice valid and timely, supporting the complainant's case.

In conclusion, the High Court dismissed the Criminal Revision Petition, upholding the judgments of the Trial Court and Sessions Judge's Court. The accused's conviction under Section 138 of the N.I. Act was deemed appropriate based on the unchallenged evidence and the legal validity of the notice. The court found no grounds for interference, affirming the lower courts' decisions and ordering the transmission of the order to both courts for further action.