2021 (11) TMI 448 - HC - Indian Laws

Dishonor of Cheque - legally recoverable debt between the complainant and the accused or not - misuse of cheque - rebuttal of presumption - brevity of contract or not - all the incriminatory circumstances denied - Section 138 of NI Act - quantum of sentences ordered - HELD THAT - In the case on hand, the issuance of cheque and the signature found on the cheque is not in dispute. According to the accused, the said cheque was issued as a security to Venugopal, who is examined as P.W. 2 in the case. In his cross-examination, there is not even a suggestion that the cheque which was issued to Venugopal has been misused by him by illegally handing it over to the complainant - Irfan Chougley and therefore, there was no legally recoverable debt between the complainant and the accused. There is no action taken by the accused against the complainant or Venugopal Reddy for the alleged misuse of the cheque. The legal notice was replied on 03.07.2003. No prudent person would keep quiet if the cheque has been misused by the complainant even after approaching the lawyer and got a reply. Further, even after conducting the evidence, the accused has not explained in his written statement filed under Section 313(5) of Cr.P.C., as to how the signature found in Ex. P2 is not his signature. So also, the signature found in Ex. P1 is also not in dispute. All these aspects of the matter has been properly considered by the learned Magistrate and recorded a categorical finding that cheque was issued for the legally recoverable debt and therefore, which on dishonour and the amount covered in the cheque being not paid, the accused has committed an offence punishable under Section 138 of the Act. In the case on hand, the accused did not even step into the witness box. Under such circumstances, in view of the material evidence available on record, coupled with the statutory presumption, this Court is of the considered opinion that there is no legal infirmity or capriciousness or perversity in recording the findings by the learned Magistrate that the accused is guilty of the offence punishable under Section 138 of the N.I. Act which has been rightly appreciated by the learned Judge in the First Appellate Court - Admittedly, the cheque amount is ₹ 4,50,000/- and the learned Magistrate has fined the accused in a sum of ₹ 4,55,000/-. Out of which, ₹ 4,50,000/- was ordered to be paid as compensation to the complainant. Under the circumstance, the complainant for the reasons best known to him has not challenged the order passed by the learned Magistrate seeking enhancement of the fine amount. Under such circumstances, there is no case made out by the accused to reduce the sentence. Revision dismissed.

Summary

Issues:
1. Validity of the order convicting the accused under Section 138 of the Negotiable Instruments Act.
2. Excessive sentence imposed on the accused.

Analysis:

*Issue 1: Validity of the conviction under Section 138 of the Negotiable Instruments Act*

The revision petition challenged the conviction of the accused under Section 138 of the Act, along with the order for compensation and default imprisonment. The case revolved around a dishonored cheque issued by the accused, leading to legal proceedings. The accused contended that there was no legally recoverable debt between him and the complainant, alleging misuse of the cheque. However, the accused failed to provide substantial evidence to support this claim. The courts examined the evidence, including a letter by the accused acknowledging the debt to another party, and concluded that the accused was guilty under Section 138. The appellate court upheld this decision after re-evaluating the evidence and considering the statutory presumptions under the Act.

*Issue 2: Excessive Sentence*

The accused argued that the sentence imposed was excessive, but the courts found no grounds for reducing it. The fine amount was slightly higher than the cheque value, with a significant portion designated as compensation to the complainant. Despite no challenge from the complainant regarding the fine amount, the accused failed to establish a case for sentence reduction. The courts maintained that the sentence was appropriate given the circumstances and upheld the original order.

In conclusion, the revision petition was dismissed as lacking merit, affirming the validity of the conviction under Section 138 of the Act and the imposed sentence.