2021 (9) TMI 865 - HC - Indian Laws

Dishonor of Cheque - Discharge of legally enforceable debt or not - preponderance of probabilities - rebuttal of presumption u/s 139 of NI Act - HELD THAT - In order to hold the accused guilty under Section 138 of the Negotiable Instruments Act, it is mandatory that the complainant should prove that the cheque in question was issued as against the legally enforceable debt or liability - Here, in this case, it was stated that the cheque in question was issued to one Radhakrishnan. However, in respect of the alleged signature of the revision petitioner found in the cheque, there was no denial on his side. Though it was stated that the particular cheque was obtained by one Radhakrishnan, in order to substantiate the same, no substantial evidence has been let in before the Courts below. Further, in the complaint lodged before the Superintendent of Police, Theni District, the respondent/complainant was not arrayed as a party. Further, in his cross-examination, D.W.1 had admitted that in respect of presentation of the cheque, there was no acknowledgement available with him. In the instant case, as rightly pointed out by the learned counsel appearing for the respondent there was no denial on the side of the petitioner that the signature found in the cheque does not belong to him. Therefore, the respondent is entitled to invoke the presumption of Section 139 of the Negotiable Instruments Act that the cheque has been issued for discharging the legally subsisting liability, which is a rebuttable presumption. As already observed, the presumption has not been rebutted by the petitioner/accused. He has not probabilised his defence by preponderance of probabilities. Hence, in view of the same, this Court holds that the cheque has been issued for discharging the legally enforceable debt. In respect of the presentation of the cheque, P.W.1 had given evidence as the cheque was presented on 02.11.2007 and thereafter, on 03.11.2007 the same was returned with an endorsement as ''Account closed''. Thus, the statutory notice has been issued to the respondent on 16.11.2007 and the same was returned as could be evidenced from the return cover and postal receipt. The said circumstances reveal the fact that by following the ingredients of Section 138 of the Negotiable Instruments Act, the case has been presented before the trial Court for initiating action against the petitioner under Section 138 of the Negotiable Instruments Act. The evidence given by the revision petitioner before the trial Court makes it clear that he does not know the date on which the cheque has been issued to the said Radhakrishnan. Therefore, in the absence of the details in respect of the date on which the said cheque was issued to the said Radhakrishnan, this Court cannot hold that the said Radhakrishnan has filed the complaint through the complainant. This Criminal Revision is dismissed, confirming the conviction and sentence imposed by the Courts below on the revision petitioner.

Summary

Issues:
Conviction and sentence under Section 138 of the Negotiable Instruments Act challenged in Criminal Revision.

Analysis:
1. The petitioner appealed against the conviction and sentence under Section 138 of the Negotiable Instruments Act. The respondent alleged that the petitioner borrowed money and issued a cheque which was dishonored. The trial court convicted the petitioner, and the appellate court upheld the decision.

2. The respondent presented evidence including the cheque, legal notice, and acknowledgment. The petitioner denied the allegations and claimed the cheque was obtained by coercion. The petitioner's defense included complaints against others for harassment and coercion.

3. The petitioner argued that the cheque was not issued to the respondent and was blank. However, the respondent contended that the petitioner did not deny the signature on the cheque. The court examined the evidence and submissions from both sides.

4. To establish guilt under Section 138, the complainant must prove the cheque was issued against a debt or liability. The court noted discrepancies in the petitioner's defense, lack of evidence, and failure to rebut the presumption of liability. The presentation and dishonor of the cheque were crucial in proving the offense.

5. The court found that the petitioner failed to provide substantial evidence to support the defense. The petitioner's claims regarding coercion and the involvement of another individual were not adequately proven. The court emphasized the importance of presenting clear and convincing evidence in such cases.

6. Ultimately, the court dismissed the Criminal Revision, affirming the conviction and sentence imposed by the lower courts. The judgment highlighted the necessity of meeting the legal requirements and burden of proof in cases involving dishonored cheques under the Negotiable Instruments Act.