2021 (12) TMI 668 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - presumption under Sections 118(a) and 139 of the NI Act is available or not - HELD THAT - It is true that when PW1 was examined the accused has disputed his signature in the cheque. It is also true that PW2 in cross examination stated that he did not see the accused putting his signature. But, PW1 in categoric terms has deposed that the cheque in question was signed by the accused in his presence at the time of borrowal. There is nothing to disbelieve the said version. That apart, the accused did not take any steps to send the signature in Ext. P1 cheque for examination by a scientific expert. Once the signature, execution and handing over of the cheque are satisfactorily proved, the presumption under Section 139 of the NI Act would come into play and remain in force until the accused discharges the burden. The complainant has successfully established the signature, execution and handing over of the cheque. There is absolutely no evidence adduced to rebut the said evidence. No evidence has been adduced by the accused to substantiate the defence plea that the cheque in question was issued in blank in connection with the transaction he had with the deceased brother of the complainant. This court under the exercise of jurisdiction under Section 397 read with 401 of Cr.P.C. cannot re-appreciate or re-evaluate the evidence - the revision petitioner is not entitled for any relief. Revision petition dismissed.

Summary

Issues:
Accused convicted under Section 138 of the Negotiable Instruments Act - Failure to prove transaction, signature, and execution of cheque - Presumption under Sections 118(a) and 139 of the NI Act - Accused's defense of misuse of blank cheque - Burden of proof on accused to rebut presumption - Examination of witnesses and documentary evidence - Appellate court's confirmation of conviction and sentence - Revision petition challenging conviction and sentence.

Analysis:
The accused faced trial for an offense under Section 138 of the Negotiable Instruments Act (NI Act) for allegedly borrowing a sum of ?2,00,000 and issuing a dishonored cheque in discharge of the debt. The trial court found the accused guilty, sentencing him to imprisonment and a fine, with the fine amount to be paid to the complainant as compensation. The appellate court upheld this decision. The revision petition challenged these convictions and sentences based on the failure to prove the transaction, signature, and execution of the cheque, disputing the availability of presumptions under Sections 118(a) and 139 of the NI Act.

The complainant's case was that the accused borrowed money and issued a cheque in discharge of the debt, supported by witness testimony and documentary evidence. The defense contended that a blank cheque was misused, shifting the burden of proof to the accused to rebut the presumption of consideration under the NI Act. The accused's failure to provide evidence to support the defense plea and the lack of response to legal notices worked against him in establishing the defense's credibility.

The court highlighted the statutory presumptions under Sections 118(a) and 139 of the NI Act, emphasizing that the accused must present evidence to disprove the existence of consideration or debt. Citing various legal precedents, including Supreme Court judgments, the court reiterated the importance of proving the non-existence of consideration to shift the burden of proof. The accused's failure to provide substantial evidence to counter the presumption of consideration from the dishonored cheque led to the dismissal of the revision petition.

In conclusion, the court dismissed the revision petition, upholding the conviction and sentence imposed by the lower courts. The accused was granted three months to deposit the fine amount, with instructions to appear before the court to serve the sentence and pay the fine to the complainant. The court's decision was based on the failure of the accused to rebut the presumptions under the NI Act and the lack of evidence supporting the defense's claims, as established through witness testimony and legal notices.