2021 (6) TMI 476 - HC - Indian Laws

Dishonor of Cheque - examination of witness denied - opportunity to challenge the said order of rejection not granted or failure to avail the opportunity availed - rebuttal of presumption - HELD THAT - Even in the cross- examination of PW-1, the accused had taken sufficient time. Since the accused failed to utilise the opportunities given to him to cross-examine PW-1, it was taken that the accused had not cross-examined PW-1. It is thereafter, by filing a recalling application, he got an opportunity to cross-examine PW-1. Accordingly, the matter was listed for cross-examination of PW-1 on 08-12-2014. Even on the said date also, he did not cross-examine PW-1, as such, once again, it was taken that there was no cross-examination of PW-1 from the accused's side. Subsequently, the accused made one more similar application for an opportunity to cross-examine PW-1, which was again allowed. Accordingly, on 14-01-2015, he proceeded to cross-examine PW-1. Thus, during the trial also, the accused has adopted delay tactics. The conduct of the accused that through out he has been interested in adopting delay tactics rather than assisting the Court in the disposal of the case on its merit. Still, the Trial Court had given him sufficient opportunities to lead defence evidence after recording the statement of the accused under Section 313 of the Cr.P.C. and also subsequently by allowing his application filed under Section 311 read with Section 91 of the Cr.P.C. Since the accused failed to make use of the opportunities which was sufficiently given to him, the Trial Court has proceeded to reject the similar application filed under Section 311 of the Cr.P.C. and proceeded to pass the impugned judgment - even by rejecting the second similar application filed by the accused under Section 311 of the Cr.P.C., no prejudice has caused to the interest of the accused. As such, the only argument of the learned counsel for the revision petitioner that the accused did not get sufficient opportunity to challenge the subsequent similar application filed under section 311 of the Cr.P.C., is not acceptable. Since the cheque at Ex.P-1 is drawn by the accused, which has been dis-honoured for the reason of insufficiency of funds and since the accused did not pay the cheque amount prior to filing of the complaint by the complainant, the presumption formed in favour of the complainant under Section 139 of the N.I. Act has crystalised in his favour. Resultantly, both the Trial Court as well the Sessions Judge's Court have rightly convicted the accused and upheld the conviction against the accused for the offence punishable under Section 138 of the N.I. Act - the Trial Court has ordered the sentence proportionate to the gravity of the proven guilt against the accused. As such, the impugned judgments do not warrant any interference at the hands of this Court. The Criminal Revision Petition stands dismissed as devoid of any merit.

Summary

Issues Involved:
1. Legality of the judgments under revision.
2. Rejection of the application under Section 311 of the Cr.P.C.
3. Sufficiency of opportunities provided to the accused.
4. Presumption under Section 139 of the N.I. Act.
5. Proportionality of the sentence imposed.

Issue-wise Detailed Analysis:

1. Legality of the judgments under revision:
The primary point for consideration was whether the judgments under revision were perverse, illegal, and erroneous, warranting interference by the High Court. The court examined the records from both the Trial Court and the Sessions Judge's Court, and after hearing arguments from both sides, concluded that the judgments were neither perverse nor illegal. The courts had rightly convicted the accused under Section 138 of the Negotiable Instruments Act (N.I. Act) and upheld the conviction.

2. Rejection of the application under Section 311 of the Cr.P.C.:
The accused argued that the Trial Court rejected his application under Section 311 of the Cr.P.C. on the same day it passed the judgment, leaving him no opportunity to challenge the rejection. The court noted that the accused had ample opportunities to lead defense evidence, including an earlier application under Section 311 r/w Sec 91 of the Cr.P.C. that was allowed. Despite this, the accused failed to utilize these opportunities, leading to the rejection of the subsequent application. The court found no prejudice caused to the accused by this rejection.

3. Sufficiency of opportunities provided to the accused:
The court observed that the accused was given several opportunities to cross-examine the complainant and lead defense evidence. The accused's repeated failure to utilize these opportunities indicated a tactic to delay the proceedings rather than a genuine need for additional evidence. The court held that the Trial Court had acted appropriately in rejecting further applications under Section 311 of the Cr.P.C. and proceeding to judgment.

4. Presumption under Section 139 of the N.I. Act:
The accused did not dispute that he was the drawer of the cheque, which was dishonored due to insufficient funds. The complainant had sent a statutory notice to the accused, which was deemed served despite being returned unclaimed. This established a presumption under Section 139 of the N.I. Act in favor of the complainant regarding the existence of a legally enforceable debt. The accused's defense that the cheque was misused by the complainant's brother was inconsistent and unsupported by evidence, failing to rebut the presumption.

5. Proportionality of the sentence imposed:
The court reviewed the sentence imposed by the Trial Court, which ordered the accused to pay a fine of ?2,60,000, with a default sentence of ten months' simple imprisonment. The court found the sentence proportionate to the gravity of the offense and upheld it. There was no basis for interference with the order of sentence.

Conclusion:
The High Court dismissed the Criminal Revision Petition as devoid of merit, affirming the judgments of the Trial Court and the Sessions Judge's Court. The Registry was directed to transmit a copy of the order to both courts along with their respective records.