2022 (1) TMI 612 - HC - Indian Laws

Dishonor of Cheque - existence of legally enforceable debt or not - service of statutory legal notice - allegation is that the impugned cheque was stolen by the respondent when he was working as Supervisor under the petitioner - HELD THAT - Admittedly, no action has been taken by the petitioner on the allegation that the respondent had stolen any of his cheques. Such an action has not been taken even after the filing of his complaint. Though it is correct that the rebuttal proof can be through preponderance of probability, the probability cannot be presumed from mere suggestion put by the accused during his cross examination, PW1. Even if the accused does not subject himself for examination, the improbabilities can also be explored from the evidence and materials of the complainant. The simple contention of the complainant is that he had lent the sum of ₹ 4,00,000/- to the petitioner for his business needs and he managed to arrange the money from the sale proceeds kept in the hands of his father. The complainant produced the copy of the sale deed dated 07.11.2002 and that would show that the property was sold on the said date for a valuable consideration. Prima facie proof is shown by the respondent/complainant to show that he had the background to lend a sum of ₹ 4,00,000/- to the petitioner/accused. The initial presumption coupled with the supporting evidence will strengthen the case of the complainant and make the initial presumption culminated into the conclusive proof, in the absence of any contrary proof. But the petitioner/accused had not produced any materials to demolish the above proof offered by the petitioner. In the said circumstances, it has to be concluded that the petitioner had not rebutted the evidence of the respondent/complainant or falsified it. Whether the respondent has not sent the statutory legal notice in the manner known to law and complied with the mandatory requirements before filing the complaint? - HELD THAT - Once the cheque is dishonoured for insufficient funds, the complainant has to necessarily send a legal notice in compliance of Section 138(b). The complainant has chosen to send the notice to the address known to him in which the accused was residing and the same address was shown as his address in this Criminal Revision Case also and that proves that the petitioner continues to live there but some how evaded to receive notice. The notice returned for the reason that addressee not found cannot be held against the respondent - the contentions of the learned counsel for the petitioner/accused that the respondent has not complied the mandatory requirement contemplated under Section 138(b) of the Negotiable Instruments Act, cannot be agreed upon. The learned Trial Judge and the learned First Appellate Judge have correctly appreciated the materials on record in a right perspective and arrived at the conclusion that the accused is guilty for the offence under Section 138 of Negotiable Instruments Act - Criminal Revision Case is dismissed.

Summary

Issues:
Challenge to judgment convicting accused under Section 138 of Negotiable Instruments Act based on evidence and compliance with legal requirements.

Analysis:
1. Background: The case involves a dishonored cheque issued by the accused to the complainant for a loan amount. The complainant filed a private complaint under Section 138 of the Negotiable Instruments Act, alleging non-payment.

2. Trial Proceedings: During the trial, the respondent presented witnesses and evidence, while the accused did not present any witnesses or documents in defense.

3. Conviction and Sentence: The Trial Judge found the accused guilty under Section 138 and sentenced him to imprisonment and a fine, with the cheque amount ordered as compensation to the complainant. The appeal against this decision was also dismissed.

4. Contentions: The petitioner/accused argued that the complainant misused the cheque and lacked financial capacity to lend the amount. He also claimed non-compliance with the statutory notice requirement.

5. Presumption under Section 139: The court discussed Section 139, stating that if the accused does not deny the cheque's execution, it is presumed to be for a legally enforceable debt. The burden then shifts to the accused to rebut this presumption.

6. Evidence Evaluation: The court analyzed the evidence, including the complainant's financial capacity and the sale deed of a property, which supported his claim of lending the amount to the accused.

7. Notice Compliance: The court addressed the issue of statutory notice, noting that the complainant sent it to the known address of the accused, who evaded receiving it. The returned notice did not invalidate compliance with legal requirements.

8. Judgment Affirmation: The court upheld the lower courts' judgments, finding no factual or legal flaws. It concluded that the accused failed to rebut the complainant's evidence and dismissed the Criminal Revision Case.

In conclusion, the court dismissed the Criminal Revision Case, confirming the lower courts' judgments and directing the Trial Judge to issue a Non-Bailable Warrant for the accused's incarceration.