2021 (7) TMI 845 - HC - Indian Laws

Dishonor of Cheque - it is claimed that cheque issued by way of security and not against any legally payable debt - evidences produced or not - burden to prove - principles of natural justice - HELD THAT - Admittedly, the petitioner did not even lead any defence evidence in spite of grant of opportunity by the learned court below and none of the witnesses whose name appeared as witnesses on Exhibit-A deposed before the court to explain the circumstances under which it was issued. On the other hand, the P.W. 2 is the eye-witness of the entire transaction and has explained the circumstances under which the cheque was issued by the petitioner to the complainant and has fully supported the prosecution case - From the records of the case, it appears that the P.W. 2 clearly deposed that cash of ₹ 1,00,000/- was handed over to the petitioner by the complainant in his presence and the petitioner had issued the cheque in lieu of the same. This Court finds that although the learned appellate court has held that no reliance could be placed on Exhibit-A by the petitioner, but the learned trial court has fully considered the contents of Exhibit-A and found that the same could not help the petitioner in any manner. This Court finds that the petitioner has failed to discharge his initial burden to prove that the cheque was not issued in discharge of any liability and the petitioner could not discharge the said burden even by referring to Exhibit-A. This Court is of the considered view that the basic ingredients for offence under Section 138 of Negotiable Instruments Act, 1881 were duly satisfied and the learned court below has not committed any error in rejecting the plea of the petitioner based on exhibit-A - criminal revision petition is dismissed.

Summary

Issues:
Setting aside conviction and sentence under Section 138 of Negotiable Instruments Act, consideration of evidence, plea of discharge of debt, reliance on Exhibit-A, sufficiency of proof, legal presumption in cheque cases.

Analysis:
1. Conviction and Sentence Setting Aside:
The petitioner sought to set aside the conviction and sentence under Section 138 of the Negotiable Instruments Act. The petitioner argued that the cheque was issued as security and not against any legally payable debt. The petitioner contended that the cheque was to be honored only after the work was completed and payment was received from the department. However, the courts found that the basic ingredients for the offense under Section 138 were satisfied, and the petitioner failed to prove that the cheque was not issued in discharge of any liability.

2. Consideration of Evidence:
The court considered the evidence presented by both parties. The complainant testified that he had given a friendly loan to the petitioner, who issued a post-dated cheque. Another witness supported this version of events. The petitioner admitted issuing the cheque but claimed it was not for repayment of any debt. The court noted that the petitioner did not present any defense evidence despite opportunities to do so.

3. Plea of Discharge of Debt:
The petitioner argued that the cheque was not issued in discharge of any debt, citing Exhibit-A as evidence. However, the court found that Exhibit-A did not contain the petitioner's signature, and there was no clear agreement regarding the payment terms. The court rejected the petitioner's plea based on Exhibit-A and emphasized that the burden of proof lay with the petitioner.

4. Reliance on Exhibit-A:
The petitioner contended that Exhibit-A should have been given more weight as it was marked without objection and signed by the complainant. However, the court determined that even if Exhibit-A was considered, it did not support the petitioner's case as it lacked the petitioner's signature and did not establish a clear agreement between the parties.

5. Sufficiency of Proof and Legal Presumption:
The court emphasized that the petitioner failed to discharge the initial burden of proving that the cheque was not issued in discharge of any liability. The legal presumption in cheque cases, where once issued, a cheque is presumed to be in discharge of an existing debt or liability, was considered. The courts found that the evidence presented supported the complainant's version, leading to the conviction under Section 138.

In conclusion, the court dismissed the criminal revision petition, upholding the conviction and sentence of the petitioner under Section 138 of the Negotiable Instruments Act. The interim order was vacated, the bail bond canceled, and pending applications dismissed. The lower court records were to be sent back promptly, and the order communicated to the lower court via fax or email.