2021 (7) TMI 821 - HC - Indian Laws

Dishonor of Cheque - service of notice - legally enforceable debt or not - rebuttal of presumption - complainant claims to have sent the legal notice to the accused, but the same was not served upon petitioner - complainant's main grievance is against the Trust - the accused alone was alleged to be the only active Trustee in the said Trust. Service of notice - HELD THAT - The address of the accused shown in her vakalath in the Trial Court, the cause title in the complaint filed by the complainant before the said Court, and in the memorandum of the criminal appeal before the Sessions Judge's Court and also in the present Criminal Revision Petition before this Court are all the same address, as such, it is established that the complainant issued the notice to the correct address of the accused. The said notice was also tendered at the said address of the addressee. Therefore, the accused now cannot contend that there was no notice issued to her - As such, the contention of the learned counsel for the petitioner/accused that, no statutory notice was issued by the complainant to the accused, is not acceptable. Legally enforceable debt towards the complainant - rebuttal of presumption - HELD THAT - Admittedly, the said cheque has been returned when presented for its realisation for the reason of insufficiency of funds, after which, a legal notice was issued by the complainant to the accused, demanding the payment of the cheque amount. Admittedly, the cheque amount has not been paid by the accused to the complainant till date. Thus, a presumption about the legally enforceable debt forms in favour of the complainant. However, the said presumption is rebuttable - when the cheque is issued from the personal account by the accused, drawn in favour of the complainant and when the complainant has denied that the accused was not liable to her under the said cheque and also denied the fact that the accused had left the Trust on 05-04-2011 itself, the burden of establishing that, there existed no legally enforceable debt towards the complainant would be upon the accused. However, it is sufficient for the accused to make out a case on preponderance of probabilities in her favour and that she need not have to prove the same beyond reasonable doubts. Even though the complainant's main grievance is against the Trust, but according to the complainant, the accused alone was the only active Trustee in the said Trust and that the cheque in question was also given to her by the accused herself, holding herself as the sole responsible person. The said statement made by PW-1 in her examination-in-chief has not been specifically denied or disputed from the accused's side - both the Trial Court as well the Sessions Judge's Court, analysing these aspects have held the accused guilty of the alleged offence punishable under Section 138 of the N.I. Act. Since both the Trial Court as well as the learned Session's Judge's Court, have after properly appreciating the evidence placed before them, rightly held the accused guilty for the alleged offence and have ordered sentence proportionate to the gravity of the proven guilt, there are no perversity or illegality in it, warranting interference at the hands of this Court. Criminal Revision Petition stands dismissed

Summary

Issues Involved:
1. Legally enforceable debt under Section 138 of the Negotiable Instruments Act, 1881.
2. Service of statutory notice.
3. Liability of the accused as a trustee.
4. Consideration of evidence and documents by the Trial Court and Sessions Judge's Court.

Issue-wise Detailed Analysis:

1. Legally enforceable debt under Section 138 of the Negotiable Instruments Act, 1881:
The accused was convicted under Section 138 of the N.I. Act for issuing a cheque that was dishonored due to insufficient funds. The complainant, a member of the Karunya Charitable and Medical Services Trust, alleged that the cheque was issued towards the amounts payable by the Trust to her and other members. The cheque was returned unpaid, leading to the initiation of legal proceedings. The accused contended that there was no legally enforceable debt, but the court held that the issuance of the cheque itself raised a presumption of a legally enforceable debt, which the accused failed to rebut effectively.

2. Service of statutory notice:
The accused argued that the statutory notice was not served. However, the complainant provided evidence of sending the notice via Registered Post Acknowledgement Due (RPAD) and speed post, both of which were returned with the postal shara indicating the addressee was not in station. The court concluded that the notice was sent to the correct address and deemed it served, as the accused intentionally avoided receiving it.

3. Liability of the accused as a trustee:
The accused claimed she was not liable as she had left the Trust before the cheque was issued. However, the court found that the cheque was issued while the accused was an active trustee, and the complainant acknowledged receipt of the cheque on behalf of the Trust. The court held that the accused, as a trustee, was responsible for the cheque issued to discharge the Trust's liability.

4. Consideration of evidence and documents by the Trial Court and Sessions Judge's Court:
The accused argued that the Trial Court did not consider Ex. D-1 and that any liability was that of the Trust, not the accused. The court noted that both the Trial Court and Sessions Judge's Court had properly considered all evidence, including Ex. D-1, and concluded that the accused was liable. The accused's claim of misuse of her cheque by the Managing Trustee was not substantiated with evidence.

Conclusion:
The High Court dismissed the revision petition, finding no perversity or illegality in the judgments of the Trial Court and Sessions Judge's Court. The courts had correctly appreciated the evidence and held the accused guilty under Section 138 of the N.I. Act, imposing a sentence proportionate to the gravity of the offense. The statutory notice was deemed served, and the accused, as an active trustee, was held liable for the dishonored cheque.