2021 (12) TMI 896 - HC - Indian Laws

Dishonor of Cheque - legally enforceable debt or not - rebuttal presumption or not - Section 139 of the Negotiable Instrument Act - HELD THAT - It is observed by the Courts below that the complainant has admitted in his evidence that he filed a complaint against Pandurangan for the offence under Sec. 138 of N.I. Act and subsequently his father discharged the said loan. Under such circumstances the natural human conduct would be to get back all the filled or unfilled cheques issued to the respondent. If the petitioner claims that the impugned cheque is the one given by his father, some steps ought to have been taken to recover the cheque immediately after his father discharged the loan. Since no such materials produced before the Court, the trial Court was not able to accept the contention of the petitioner that the cheque was issued by the father of the petitioner only by way of security. In the absence of any rebuttal proof the initial presumption that was taken in favour of the respondent will become the conclusive proof. Since it is not proved by the petitioner that the cheque in question has been issued by way of security, the Courts below held that the petitioner has issued the cheque only for a legally enforceable debt and he is guilty for the offence under Section 138 of Negotiable Instruments Act. The Criminal Revision Case stands dismissed.

Issues:
1. Conviction and sentencing under Sec. 138 of the Negotiable Instruments Act.
2. Appeal against the judgment of the Sessions Judge.
3. Dispute over the purpose of the cheque issued.
4. Presumption of a legally enforceable debt under Sec. 139 of the Negotiable Instruments Act.
5. Failure to provide evidence to rebut the presumption.
6. Failure to recover the cheque after alleged debt discharge.

Analysis:
1. The judgment involves the Criminal Revision Petition against the conviction and sentencing of the accused under Section 138 of the Negotiable Instruments Act by the Judicial Magistrate (FTC) Tiruppur, which was confirmed by the Sessions Judge Tiruppur in C.A. No. 100/13. The petitioner challenged this judgment in the present revision petition, C.A. No. 94/2017.

2. The appeal was filed by the petitioner before the Principal Sessions Judge, Tiruppur, in C.A. No. 100/2013, after a private complaint was filed regarding the dishonour of a cheque. The appeal was dismissed, leading to the filing of the current revision petition.

3. The dispute centered around the purpose of the cheque issued by the petitioner to the respondent. The petitioner contended that the cheque was given as security for a loan amount availed by his father from the respondent, not as payment for a legally enforceable debt.

4. Section 139 of the Negotiable Instrument Act provides a presumption of a legally enforceable debt in favor of the holder of the cheque if the executant does not deny its execution. However, this presumption can be rebutted by contrary proof.

5. The petitioner failed to provide evidence to substantiate his claim that the cheque was issued as security for a different transaction between the respondent and his father. Despite receiving a legal notice, the petitioner did not disown his liability or produce any documents to support his contentions.

6. The Courts noted that the petitioner did not take steps to recover the cheque after his father allegedly discharged the loan, which would be a natural course of action if the cheque was meant as security. Without any rebuttal proof, the initial presumption in favor of the respondent became conclusive, leading to the confirmation of the conviction under Section 138 of the Negotiable Instruments Act.

In conclusion, the Court found no reason to interfere with the judgment of the Principal Sessions Judge, Tiruppur, and dismissed the Criminal Revision Case, confirming the judgments of the lower Courts.

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