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2021 (8) TMI 1174 - HC - Indian LawsDishonor of Cheque - acquittal of the accused - no finding recorded with regards to service of statutory notice - pre-mature complaint - complaint was filed prior to expiry of the statutory time line - validity of setting aside the trial court s judgment of acquittal of the petitioner - rebuttal of presumption - preponderance of probablities - HELD THAT - The present revision having been filed against judgement of appellate court, reversing the judgement of acquittal of the petitioner by the trial court for offence under Section 138 of the aforesaid Act of 1881. At the stage of trial, the complainant was the sole witness and has supported the prosecution case. The complainant exhibited the aforesaid documents. However, there was no evidence regarding service of legal notice dated 27.09.2010 upon the petitioner sent through registered post with A/D dated 27.09.2010, much less the date of service of notice. The complainant was fully cross examined - this Court also finds that the petitioner had taken a specific plea that he did not receive any legal notice and he obtained bail from the court after receiving notice from the court. Admittedly, the legal notice in connection with the cheque was sent to the petitioner on 27.09.2010 by registered post with A/D. There is no evidence regarding service of legal notice upon the petitioner, much less the date of service of notice. It has been simply alleged that the petitioner did not pay the cheque amount in spite of service of notice. There is no finding recorded by the learned courts below regarding service of legal notice upon the petitioner, much less the date of receipt of legal notice by the petitioner although the petitioner had specifically denied receipt of the legal notice - this Court finds that the Complainant mentioned the cause of action in the complaint from 31.03.2010, 17.04.2010, 21.09.2010 (date of cheque return memo) and continuing till the date of filing of the complaint case, filed on 04.11.2010. The condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the complaint itself was not maintainable on the day it was filed and accordingly, the petitioners could not have been convicted under the said Section. The question of any presumption regarding existing debt under Section 139 of the Negotiable Instruments Act, 1881 did not arise as the complaint itself was not maintainable. Accordingly, the conviction of the petitioner under Section 138 of the aforesaid Act of 1881 by the learned appellate court cannot be sustained in the eyes of law. Whether the accused has been able to displace such presumption and to establish a probable defence whereby, the onus would again shift to the complainant? - HELD THAT - The issuance of cheque is not in dispute. Before the trial court, the argument of the counsel for the accused- petitioner was that the amount taken by the petitioner was returned in instalments and a receipt (Exhibit-A) was also issued by the complainant. It was also the case of the accused petitioner that the complainant withheld the cheque in spite of receiving the cheque amount as the cheque was missing and traceless in the hands of the complainant - The trial court held that a doubt was created in the prosecution case and accordingly, the prosecution failed to prove its case beyond reasonable doubts and acquitted the accused - petitioner. There is no doubt that mere denial of existing debt or discharge of debt may not be sufficient to discharge the burden of proof from the side of the accused on the principles of preponderance of probabilities , but, once the accused puts on record further material, the onus of the accused stands discharged on the principle of preponderance of probabilities . In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus and the accused is not expected to discharge an unduly high standard or proof and the accused need not discharge his burden to the extent of being beyond all reasonable doubt - Once a probable defence is put on record from the side of the accused, the onus shifts upon the complainant to prove the fact regarding existing debt. Upon perusal of the records, this Court finds that there is no material on record, either in the evidence in chief of the complainant or evidence in chief of the accused or even in their cross examination, that the blank signed pages were signed and handed over by the complainant to the accused petitioner in connection with the partnership firm and that the same has been misused by the accused- petitioner to create a document of receipt of the cheque amount i.e Exhibit-A - This Court is of the considered view that the defence taken by the petitioner on the basis of Exhibit-A that the entire cheque amount was returned by the petitioner to the complainant was certainly a probable defence when seen in the light of the principles of preponderance of probabilities and the appellate court erred in law in rejecting the defence of the petitioner and not considering the case on the principles of preponderance of probabilities . This Court is of the considered view that the materials on record suggest that the accused-petitioner had discharged his burden and rebutted the statutory presumption under Section 139 of the aforesaid Act of 1881 on the principles of preponderance of probabilities and the complainant failed to further shift the burden to the accused petitioner. This Court finds that the accused has been able to displace presumption under Section 139 of the aforesaid Act of 1881 and established a probable defence whereby, the onus again shifted to the complainant and the complainant failed to discharge the same - the conviction of the petitioner for offence under Section 138 of the aforesaid Act of 1881 passed by the learned appellate court cannot be sustained in the eyes of law. Petition allowed.
Issues Involved:
1. Service of statutory notice regarding bouncing of cheque. 2. Justification of the appellate court in setting aside the trial court’s judgment of acquittal. 3. Presumption under Section 139 of the Negotiable Instruments Act, 1881. 4. Statutory timeline for filing a case under Section 138 of the Negotiable Instruments Act, 1881. 5. Examination of evidence and discharge of burden of proof. Issue-wise Detailed Analysis: 1. Service of Statutory Notice Regarding Bouncing of Cheque: The petitioner argued that no finding was recorded regarding the service of statutory notice on them, which is a condition precedent for filing a case under Section 138 of the Negotiable Instruments Act, 1881. The petitioner denied receiving the notice, and it was for the prosecution to prove service. The court found no evidence regarding the service of the legal notice upon the petitioner, and the complaint was filed prematurely, before the statutory timeline expired. 2. Justification of the Appellate Court in Setting Aside the Trial Court’s Judgment of Acquittal: The petitioner contended that the appellate court unjustifiably set aside the trial court's judgment of acquittal. The trial court's judgment was one of the possible views and lacked any illegality or perversity. The appellate court did not record any perversity in the trial court's judgment. The appellate court's interference in the acquittal judgment was deemed improper as it did not marshal the entire evidence to find the trial court's judgment perverse or wholly unsustainable in law. 3. Presumption Under Section 139 of the Negotiable Instruments Act, 1881: The court discussed the presumption under Section 139, which assumes that the holder of a cheque received it for the discharge of a debt or liability unless proven otherwise. The accused can rebut this presumption by showing a probable defense. The appellate court failed to consider this presumption and the principles of "preponderance of probabilities" while examining the evidence. 4. Statutory Timeline for Filing a Case Under Section 138 of the Negotiable Instruments Act, 1881: The court emphasized that the cause of action arises upon the expiry of 15 days from the date of receipt of the cheque bouncing notice. The complaint in this case was filed prematurely, as the statutory period had not expired. The court cited the Supreme Court's judgment in Yogendra Pratap Singh vs. Savitri Pandey, which held that a complaint filed before the expiry of 15 days from the date of receipt of notice is not maintainable. 5. Examination of Evidence and Discharge of Burden of Proof: The trial court acquitted the petitioner, finding the prosecution failed to prove the case beyond reasonable doubt. The appellate court, however, did not examine the evidence in light of the statutory presumption under Section 139 and the principles of "preponderance of probabilities." The appellate court's rejection of the defense was based on strict proof rather than the preponderance of probabilities. The court found that the petitioner had discharged their burden and rebutted the statutory presumption, shifting the onus back to the complainant, who failed to discharge it. Conclusion: The court allowed the petition, set aside the appellate court's judgment of conviction, and acquitted the petitioner. The complaint was deemed premature, and the statutory conditions for filing under Section 138 were not satisfied. The court also appreciated the assistance provided by the Amicus Curiae.
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