2021 (6) TMI 678 - HC - Indian Laws

Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - burden on the complainant to prove each and every fact even after accused admitting the cheque - HELD THAT - Accused admitted that Ex.P.1-cheque belongs to him and it bears his signature. Even though the accused taken up a defence that he was not knowing the complainant, he was not familiar with him, he had not borrowed any amount from the complainant nor issued Ex.P.1 in his favour, the moment he admits that the cheque relied on by the complainant belongs to him and it bears his signature, presumption under Section 139 of N.I. Act arises. Similarly, Section 118 of N.I. Act gives raise to presumption regarding the consideration, date, time of acceptance, endorsements and that the holder is a holder in due course until the contrary is proved. Therefore, once the accused admits the cheque in question and his signature found therein, the initial burden of proving the contention is discharged by the complainant and it is for the accused to rebut these presumptions by raising the defence and probabalising the same. The complainant has discharged his initial burden of proving Ex.P.1-cheque upon which the presumption under Sections 118 and 139 of N.I. Act arises. Even though the accused is required to probabalise his defence to rebut the presumptions, he has failed to do so. Therefore, the accused is liable to be convicted - the trial Court has erred in acquitting the accused ignoring the settled proposition of law on the subject and wrongly placing the burden on the complainant to prove the existence of legally recoverable debt in spite of the accused admitting issuance of the Ex.P.1-cheque with signature. The impugned judgment of acquittal passed by the trial Court is nothing but perverse and illegal. Criminal appeal is allowed.

Issues Involved:
1. Whether the trial court erred in acquitting the accused under Section 138 of the Negotiable Instruments Act (N.I. Act).
2. Whether the complainant successfully proved the lending of the amount and issuance of the cheque.
3. Whether the accused successfully rebutted the presumption under Sections 118 and 139 of the N.I. Act.
4. Appropriate quantum of sentence for the accused upon conviction.

Detailed Analysis:

1. Error in Acquittal by the Trial Court:
The appellant/complainant challenged the trial court's judgment of acquittal, arguing that the trial court failed to properly apply the presumption under Sections 118 and 139 of the N.I. Act. The trial court had acquitted the accused by placing the burden of proof entirely on the complainant, despite the accused admitting the cheque belonged to him and bore his signature. The appellate court found this approach erroneous, noting that once the cheque and signature are admitted, the presumption under Sections 118 and 139 arises in favor of the complainant. The trial court's reliance on the decision in Krishna Janardhan Bhat v. Dattatraya G.Hegde was misplaced, as the presumption includes the existence of a legally enforceable debt.

2. Proof of Lending and Issuance of Cheque:
The complainant contended that he lent ?78,000 to the accused, who issued a cheque (Ex.P.1) towards repayment. The cheque was dishonored due to insufficient funds, and the accused did not claim the legal notice sent by the complainant. The complainant supported his case with oral evidence and documentary evidence (Exs.P.1 to P.4). The accused admitted the cheque and his signature but denied issuing it for a legally enforceable debt, claiming it was given to DW.2 as security for a loan. However, the appellate court found the accused's defense inconsistent and unsupported by evidence. The accused's own complaint (Ex.D.2) contradicted his defense, admitting to borrowing from the complainant through DW.2.

3. Rebuttal of Presumption under Sections 118 and 139:
The appellate court held that the accused failed to rebut the presumption under Sections 118 and 139 of the N.I. Act. The accused's defense that the cheque was issued to DW.2 as security was not probable, as he did not take steps to retrieve the cheque or stop its payment after repaying the loan. The accused's contradictory statements and lack of supporting evidence weakened his defense. The appellate court emphasized that the standard of proof to rebut the presumption is preponderance of probabilities, which the accused failed to meet.

4. Quantum of Sentence:
Upon convicting the accused, the appellate court considered the appropriate sentence. The complainant sought maximum punishment, while the accused's counsel requested leniency due to the accused's age (75 years). The court balanced these considerations, sentencing the accused to one year of simple imprisonment and a fine of ?1,56,000, with ?1,25,000 to be paid as compensation to the complainant. In default of payment, the accused would undergo an additional six months of imprisonment.

Conclusion:
The appellate court allowed the appeal, setting aside the trial court's judgment of acquittal. The accused was convicted under Section 138 of the N.I. Act, sentenced to one year of simple imprisonment, and fined ?1,56,000, with a portion to be paid as compensation to the complainant. The court also appointed an Amicus Curiae and fixed his fees at ?5,000.

← Previous Next →