2021 (12) TMI 273 - HC - Indian Laws

Dishonor of cheque - denial of issuance of cheque and signatures - presumption as available under Section 118 and 139 of NI Act - HELD THAT - This court finds no force in the submission made by learned counsel for the petitioner that the learned courts below have misread the evidence, as a consequence of which findings, detrimental to the accused have come on record, rather, careful perusal of evidence led on record by the parties clearly proves that the accused with a view to discharge his liability issued cheque in the sum of ₹ 50,000/- to the complainant, but the same was dishonoured on account of insufficient funds in his bank account. Once there is no denial of issuance of cheque and signatures thereupon, presumption as available under Ss. 118 and 139 comes into play. Section 118 and 139 of the Act clearly provide that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant - Once issuance of cheque and signatures thereupon are not denied, presumption starts in favour of holder of cheque and once such presumption starts, onus shifts upon the person issuing the cheque. This court is convinced and satisfied that complainant has successfully proved by leading cogent and convincing evidence that the accused issued cheque in question in discharge of his lawful liability, but the same came to be dishonored. Since despite issuance of legal notice, accused failed to make good the payment, learned court below, in the totality of evidence led on record by the complainant, rightly held accused guilty of having committed offence punishable under Section 138 of act and as such, no interference in the impugned judgment/order of conviction and sentence is called for. The present revision petition is dismissed being devoid of any merit.

Issues Involved:
1. Validity of the conviction under Section 138 of the Negotiable Instruments Act.
2. Examination of evidence and testimonies.
3. Applicability of presumptions under Sections 118 and 139 of the Negotiable Instruments Act.
4. Jurisdiction and scope of revisional powers under Section 397 CrPC.

Detailed Analysis:

1. Validity of the Conviction under Section 138 of the Negotiable Instruments Act:
The primary issue in this case was the challenge to the conviction and sentence of the accused under Section 138 of the Negotiable Instruments Act. The accused was found guilty of issuing a cheque for ?50,000 to discharge his liability, which was dishonored due to insufficient funds. The trial court's judgment was affirmed by the Additional Sessions Judge, and the accused sought acquittal from the High Court.

2. Examination of Evidence and Testimonies:
The court meticulously examined the evidence presented by both parties. The complainant provided substantial evidence, including the dishonored cheque, bank memos, and testimonies from bank officials and a postman. The complainant testified about advancing money to the accused and receiving a cheque that was dishonored. The bank officials corroborated the presentation and dishonoring of the cheque due to insufficient funds. The postman confirmed that the legal notice sent to the accused was unclaimed intentionally.

The accused, in his defense, denied the allegations and presented his father as a witness, who claimed that the cheques were related to dealings with the complainant’s brother, not the complainant. However, this defense was not substantiated with any documentary evidence.

3. Applicability of Presumptions under Sections 118 and 139 of the Negotiable Instruments Act:
The court emphasized the statutory presumptions under Sections 118 and 139 of the Act, which presume that the cheque was issued for the discharge of a debt or liability unless proven otherwise. The accused failed to rebut this presumption effectively. The court cited the Supreme Court's judgments in Rohitbhai Jivanlal Patel v. State of Gujarat and M/s. Laxmi Dyechem v. State of Gujarat, which highlighted that the burden shifts to the accused to disprove the presumption once the issuance and signature on the cheque are admitted.

4. Jurisdiction and Scope of Revisional Powers under Section 397 CrPC:
The court reiterated the limited scope of revisional jurisdiction under Section 397 CrPC, which is supervisory and not equivalent to an appellate jurisdiction. The court referred to the Supreme Court's judgment in State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri, which stated that the High Court should not re-appreciate evidence unless there is a glaring miscarriage of justice. The court found no such error in the judgments of the lower courts.

Conclusion:
The High Court upheld the conviction and sentence of the accused, finding no merit in the revision petition. The court concluded that the complainant had successfully proved the case by leading cogent and convincing evidence. The accused's failure to rebut the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act led to the affirmation of the conviction. The court directed the accused to surrender and serve the sentence awarded by the trial court. Pending applications were disposed of, and bail bonds were canceled.

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