2021 (11) TMI 447 - HC - Indian Laws

Dishonor of cheque - acquittal of the accused - legally enforceable debt or not - proof for presentation of the cheques - rebuttal of statutory presumption - HELD THAT - This Court finds that the private complainant is entitled for statutory presumption under Section 139 of the Negotiable Instruments Act. In order to probabilize the suggestive case, the respondent/accused raised a plea that Ex. D.1 was marked by the respondent to show that the cheques were not presented for encashment. Had there been any such cheque presented for encashment, it could have been found relates entry between the period 25.06.2007 and 09.06.2007. D.W. 1 had deposed regarding the entries made in Ex. D.1. He has categorically stated that he has brought the original Cheque Referred and Returned Register, wherein, there is no suggested entry for penalty charges for processing and returning for insufficient funds. Since there is a zero balance in the account of the accused, even penalty charges for the cheque bounced could not be reflected. So is the pathetic condition of the accused. It appears that the accused is attempting to divert the attention of this Court by filing irrelevant document viz., Ex. D.1. Specific answer is given by P.W. 2-Manager that penalty charges for cheque bouncing could not be reflected in the account of the accused, since the account of the accused has already touched zero balance . All the pleas raised by the respondent/accused to probabilise the suggestive case stands negatived. It appears that such pleas are raised by the accused only for the sake of to built a false case. Accordingly, there are no hesitation to hold that the accused has miserably failed to probabilise the suggestive case and in view of the fact that the private complainant has successfully satisfied the necessary ingredients under Section 139 of the Negotiable Instruments Act and on the failure of the accused to probabilise the suggestive case, it is found that the order of acquittal passed by the Lower Appellate Court is erroneous and finding thereon is found to be perverse and hence, both the finding as well as the order of acquittal of the Lower Appellate Court are liable to be set aside. The finding rendered by the trial Court that the accused is entitled for statutory presumption is correct one and the finding rendered based upon Ex. P.7 that the cheques have been presented for encashment and the same were returned and penalty charges for cheque bouncing could not be found place in Ex. D.1 due to the fact that the account of the accused as reflected in Ex. D.1 is 'zero' account and the accused has not probabilise the suggestive case and hence, the finding rendered by the Lower Appellate Court is perverse, as the same is not reflection of Exs. P.7 and D.1. The accused has miserably failed to probabilise the suggestive case. Consequently, the conviction laid by the trial Court is held to be sustainable in law - Criminal Revision Case is allowed.

Summary

Issues:
Appeal against acquittal under Section 138 of Negotiable Instruments Act.

Analysis:
1. The appellant filed a private complaint against the respondent for issuing two cheques with insufficient funds, leading to a conviction by the Judicial Magistrate, which was later acquitted by the Additional District and Sessions Judge.
2. The de facto complainant testified about the loan and cheque issuance, supported by the Bank Manager's evidence of cheque returns.
3. The defense denied the debt, claiming the cheques were for contractors, with the Bank's Assistant Manager testifying about the accused's account transactions.
4. The defense argued lack of proof of cheque presentation, but the accused admitted ownership of the cheques, leading to a statutory presumption under Section 139.
5. The Court found the defense's attempt to discredit the cheques and lack of presentation evidence unconvincing, restoring the trial Court's conviction based on the Bank's records.
6. The Court rejected the defense's claims, emphasizing the accused's failure to disprove the presumption under Sections 118 and 139 of the Act.
7. Legal precedents were cited to support the presumption's rebuttable nature and the need for a strong defense to counter it effectively.
8. The Court highlighted the accused's admission of cheque ownership and the Bank's return memos as crucial evidence supporting the conviction.
9. The defense's reliance on irrelevant documents and failure to provide convincing evidence led to the restoration of the trial Court's conviction and sentence.
10. The Court concluded that the accused's attempts to discredit the cheques and lack of presentation evidence were insufficient, upholding the trial Court's decision and overturning the acquittal.