2021 (6) TMI 551 - HC - Indian Laws

Dishonor of Cheque - Legally enforceable debt or not - rebuttal of presumption - section 138 of the Negotiable Instruments Act - HELD THAT - A perusal of the entire records and even in the statutory notice sent by the complainant, the respondent/accused has sent the reply and he denied the execution of the cheque - When the cheque was returned for the reason that the signature differs, and the respondent/accused has taken a stand that the complainant is a stranger to the accused, it is for the appellant/complainant to establish the case and the appellant has not proved the same, and if once, execution of cheque is proved, the presumption under Sections 118 and 139 of the Negotiable Instruments Act can be drawn and the accused has to rebut the presumption that there is no legally enforceable debt and cheque has not been issued for legally enforceable debt, whereas in the present case, the appellant/complainant has not established the execution of the cheque and borrowal of the money, by the respondent/accused. The appellate Court, as a fact finding Court, has rightly re-appreciated the evidence in proper perspective, under the circumstances, this Court does not find any perversity in the judgment of the appellate Court, and there is no compelled circumstances or reason to interfere with the Judgment of acquittal, unless any compelled circumstances or reason warranted, this Court cannot interfere with the Judgment of acquittal - Appeal dismissed.

Summary

Issues:
1. Conviction under Section 138 of the Negotiable Instruments Act.
2. Appeal against trial court judgment.
3. Appellate court's decision to set aside conviction.
4. Appeal against appellate court's judgment.

Analysis:
1. The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, alleging that the respondent borrowed a sum of ?90,000 and issued a cheque that was later dishonored. The trial court convicted the respondent, sentencing him to imprisonment and compensation. However, the appellate court acquitted the respondent, setting aside the conviction based on the lack of proof of the transaction and execution of the cheque.

2. The respondent denied borrowing money and contended that the appellant failed to establish a relationship or transaction between them. The respondent highlighted that the cheque was returned due to signature discrepancies and asserted that the appellant did not provide evidence of the debt or cheque execution. The appellate court, after re-evaluating the evidence, found no perversity in the judgment and upheld the acquittal, emphasizing the absence of compelled circumstances to interfere with the decision.

3. The appellate court's judgment in C.A.No.432 of 2018, overturning the trial court's conviction, was challenged by the appellant in the present appeal. The appellant argued that despite presenting evidence before the trial court, the appellate court failed to appreciate it, leading to an erroneous acquittal. However, the High Court upheld the appellate court's decision, emphasizing the appellant's failure to prove the transaction and execution of the cheque, crucial for establishing the case under Section 138 of the Negotiable Instruments Act.

4. After considering the arguments from both sides and reviewing the case records, the High Court dismissed the criminal appeal, affirming the appellate court's judgment that acquitted the respondent of the offense under Section 138 of the Negotiable Instruments Act. The High Court concluded that without any compelling reasons or circumstances, it could not interfere with the acquittal, thereby upholding the decision of the lower appellate court.