2021 (11) TMI 984 - HC - Indian Laws

Dishonor of Cheque - accused failed to rebut the presumption available to the complainant - legally recoverable debt or not - denial of all incriminatory materials - Section 138 of the Negotiable Instruments Act - HELD THAT - In the case on hand, issuance of cheque and the signature of the accused on the cheque stands proved by placing necessary oral and documentary evidence on record. Admittedly, there was a business transaction between the accused and the complainant in respect of purchase of a LGV Tata vehicle bearing No. KA-20/7567. Ex. P-8 is the Account statement produced by the complainant which shows that accused was due in a sum of ₹ 1,50,000/- and the cheque came to be issued towards the legally recoverable debt i.e., the amount due by the accused to the complainant as per Ex. P-8. The cheque on presentation, admittedly, was dishonoured and thereafter, legal notice came to be issued and there is no compliance of callings of notice. Therefore, all ingredients to attract offence under Section 138 of the Negotiable Instruments Act stands established by placing necessary oral and documentary evidence on record. No doubt, the accused got herself examined as DW-1, wherein she tried to rebut the presumption available to the complainant under the provisions of section 118 and 139 of the Negotiable Instruments Act, but the evidence adduced by the accused was not sufficient to rebut the said presumption and therefore, the learned Trial Magistrate recorded an order of conviction for the accused for the offence punishable under section 138 of the Negotiable Instruments Act, and the learned Judge in the first appellate court rightly re-appreciated the material evidence on record and confirmed the finding recorded by the learned Trial Magistrate. On perusal of the cross examination of PW1, it is seen that there is no proper proof of challenging the entries in Ex. P-8 which is the accounts statement. Admittedly, the defence taken by the accused is that the cheque is issued for the purpose of security was not at all established and accordingly, this court is of the considered opinion and both the courts have passed an order of conviction based on the sound and logical reasons and therefore, it does not suffer from any legal infirmity or perversity. Criminal Revision Petition is dismissed.

Summary

Issues:
1. Challenge to the conviction under Section 138 of the Negotiable Instruments Act.
2. Excessive sentencing.

Analysis:

Issue 1: Challenge to the conviction under Section 138 of the Negotiable Instruments Act
The case involved a complaint under Section 138 of the Negotiable Instruments Act regarding a dishonored cheque issued in relation to a business transaction. The accused was convicted by the Trial Magistrate and the decision was upheld by the first appellate court. The accused challenged the conviction, arguing that the presumption under Section 139 of the Act was wrongly applied. However, the courts found that the necessary evidence, including the dishonored cheque and account statements, established the offense. The accused's defense that the cheque was issued as security was not substantiated. The courts concluded that the conviction was based on sound reasoning and did not suffer from any legal flaws or perversity.

Issue 2: Excessive Sentencing
The Trial Court had imposed a fine of ?1,60,000 for the offense, which was confirmed by the first appellate court. The accused contended that the fine was excessive, considering the amount involved and the delay in payment. However, the court found the fine amount justifiable, especially since the complainant had not received the due amount even after several years. As there was no request for further enhancement of the fine, the court upheld the original fine amount. Consequently, the court dismissed the Criminal Revision Petition, affirming the conviction and the fine imposed.

In conclusion, the judgment upheld the conviction under Section 138 of the Negotiable Instruments Act, finding no legal infirmity in the decision. Additionally, the court deemed the fine amount appropriate, given the circumstances of the case.