2021 (11) TMI 545 - HC - Indian Laws

Dishonor of Cheque - existence of legally enforceable debt or not - defense of the accused/revision petitioner is that she had no transaction with the complainant at any point of time and cheque was issued to one Rajiv and in this regard, she has placed reliance on Ex.D1 - rebuttal of statutory presumption - HELD THAT - The complainant has not disputed the cheque-Ex.P1 and her signature. Hence, statutory presumption under Section 139 of N.I. Act is in favour of the complainant. The accused is required to rebut the statutory presumption by leading the cogent evidence on the basis of preponderance of probability. But, except asserting the transaction between herself and Rajiv, no other documents have been produced by the accused. This transaction does not establish that the said cheque was taken by the complainant and very interestingly, after receipt of the legal notice, the accused has not choosen to reply and no explanation is offered - the cross-examination of D.W. 1 itself disclose that she is already convicted for the offences punishable under Section 138 of N.I. Act in a different case. She has also admitted that Rajiv has also lodged a complaint against her under Section 138 of N.I. Act as per Ex.D10. Hence, the defense raised by the accused is short of proving her case that the cheque has not been issued towards discharge of legally enforceable debt so as to rebut the statutory presumption in favour of complainant. The other ground urged by the learned counsel that in the complaint there is a specific allegation that an amount of ₹ 5,00,000/- was advanced as a hand loan but in the evidence, it is elicited that it was in respect of payment towards the house warming ceremony, wherein, the complainant has taken contract and he paid the expenses in this regard to labours, but that does not go to the root of the case to suspect the case of the complainant. The accused has not rebutted the presumption available in favour of the complainant. The accused has not made out any grounds for admitting the revision for hearing on merits. The accused/revision petitioner has already suffered two concurrent findings of conviction in both the Courts below and both the Courts have appreciated the evidence on record in detail and conviction order passed by the trial Court and confirmed by the Appellate Court cannot be said to be erroneous or arbitrary so as to call for any interference by this Court. Petition dismissed.

Summary

Issues involved:
- Revision petition challenging conviction under Section 138 of Negotiable Instruments Act
- Discrepancy in evidence regarding loan amount and purpose
- Defense arguments of lack of relationship and debt establishment
- Rebuttal of statutory presumption under Section 139 of N.I. Act
- Failure to provide cogent evidence to refute presumption
- Previous conviction of accused in similar case affecting defense
- Dismissal of revision petition based on lack of merit

Issue 1: Revision petition challenging conviction under Section 138 of Negotiable Instruments Act

The revision petition was filed under Sections 397 and 401 of Cr.P.C. challenging the conviction under Section 138 of the Negotiable Instruments Act. The accused was convicted by the Magistrate and the Additional City Civil and Sessions Judge for bouncing a cheque issued to repay a loan. The revision petition was lodged after the dismissal of an appeal against the conviction.

Issue 2: Discrepancy in evidence regarding loan amount and purpose

The complainant alleged that the accused borrowed a sum of money as a hand loan, while the accused claimed the amount was paid for expenses related to a housewarming ceremony. The defense argued that this discrepancy raised doubts about the existence of a legal enforceable debt, leading to a miscarriage of justice.

Issue 3: Defense arguments of lack of relationship and debt establishment

The defense contended that there was no relationship between the complainant and the accused, and the debt itself was not proven. The defense relied on documentary evidence to challenge the allegations and claimed that the complainant failed to establish the existence of a legal enforceable debt.

Issue 4: Rebuttal of statutory presumption under Section 139 of N.I. Act

The court noted that the complainant did not dispute the signature on the bounced cheque, invoking the statutory presumption under Section 139 of the N.I. Act in her favor. The accused was required to rebut this presumption by providing cogent evidence, but failed to do so adequately.

Issue 5: Failure to provide cogent evidence to refute presumption

The accused's defense primarily rested on denying any transaction with the complainant and presenting a different narrative regarding the cheque. However, the accused failed to provide substantial evidence to counter the presumption in favor of the complainant, leading to doubts about the credibility of the defense.

Issue 6: Previous conviction of accused in similar case affecting defense

The court highlighted that the accused had a previous conviction under Section 138 of the N.I. Act in a different case, which weakened the defense's credibility. The accused's failure to address this previous conviction and provide a convincing defense further undermined the case against the current conviction.

Issue 7: Dismissal of revision petition based on lack of merit

After considering the arguments and evidence presented, the court concluded that the accused had not established sufficient grounds to challenge the concurrent findings of conviction by the lower courts. The court found no errors or arbitrariness in the conviction orders, leading to the dismissal of the revision petition for lack of merit.