2022 (1) TMI 662 - HC - Indian Laws

Dishonor of Cheque - insufficient funds - rebuttal of presumption - legally enforceable debt or liability or not - complainant has failed to establish the transaction and outstanding and inspite of the same, both the courts have not appreciated the said material on record - exercise of revisional jurisdiction - HELD THAT - The petitioner cannot find fault with the continuation of the transactions of the accused even for the month of September-2008 also. It is also important to note that the ledger extract is also marked as Ex. P.8 and counsel referring this Ex. P.8 certified copy which is produced before him also submits that even subsequent to the issuance of cheque also transactions have taken place in the month of August and September-2008 and hence, it is clear that Ex. P.7 corroborates that the transactions were continued till September-2008. When such being the fact material available on record, the counsel cannot contend that the bills have not been counter signed by the petitioner herein. Apart from that, when the cheque was issued there is a presumption under Section 118 and 139 of NI Act that the same is given towards debt or legal liability and the revision petitioner has not disputed issuance of cheque and only his defence is that during the course of transactions blank cheque was collected and in order to prove the said fact, even he did not choose to enter into the witness box and not adduced any rebuttal evidence. During the course of cross-examination of P.W. I also there is no effective cross-examination to rebut the evidence of the complainant. It is settled law that accused can rebut the evidence of complainant by effective cross-examination and also adducing the rebuttal evidence and it is already pointed out that there is no any rebuttal evidence given by the accused and also in the cross-examination of P.W. I, there is no effective cross-examination to rebut the evidence of the complainant. The principles laid down in the judgment of Rangappa's case 2010 (5) TMI 391 - SUPREME COURT is not applicable to the facts on hand. Since first of all there is no any rebuttal evidence and accused is unable to raise the probable defence which creates doubt about the legally enforceable debt or liability and apart from that, in the very same judgment the Hon'ble Apex Court held that not raising a probable defence, the appellant/accused was not able to contest the existence of a legally enforceable debt or liability and the legal notice was issued to the revisional petitioner and acknowledging the legal notice, he has not given any rebuttal reply and when such being the circumstances, it is further observed that when the accused not denied signature on the cheque belongs to him the statutory presumption come into play and the same has not been rebutted even with regard to the material submitted by the complainant and hence, this judgment is helping either side i.e., complainant in the case on hand also cheque was admitted and issue of legal notice was admitted and transaction between the revisional petitioner and the respondent is admitted and the revisional petitioner has not led any rebuttal evidence and there is no any effective cross-examination rebutting the evidence of the complainant and these are the facts considered by the trial Court as well as the appellate Court while re-appreciating the material on record. No error committed by the respective courts in appreciating the evidence and also no illegality committed by both the courts giving finding based on the material on record and hence, this Court cannot exercise the revisional powers to disturb the finding of both the courts as the same is not suffering from any illegality and correctness of the finding. The petitioner has not made out any ground to exercise the revisional power - revision petition is dismissed.

Summary

Issues:
1. Conviction under Section 138 of NI Act challenged.
2. Revision petition filed against judgment and order of conviction.
3. Failure to appreciate material on record.
4. Dispute regarding actual delivery of medicines.
5. Legal notice issued, no reply given.
6. Rebuttal of presumption under Section 139 of NI Act.
7. Exercise of revisional jurisdiction by the Court.

Analysis:

Issue 1: Conviction under Section 138 of NI Act challenged
The case involved a dispute between a wholesaler and a retailer regarding a transaction where the accused issued a cheque that bounced due to insufficient funds. The trial court convicted the accused, ordering payment of the due amount. The appellate court upheld the conviction, leading to the filing of a revision petition challenging the same.

Issue 2: Revision petition against judgment and order of conviction
The revision petitioner contended that both courts failed to properly assess the evidence on record. The petitioner argued that the bills presented did not bear the accused's signature, raising doubts about the actual delivery of medicines and the outstanding amount. The petitioner also questioned the legality of the conviction based on discrepancies in the evidence.

Issue 3: Failure to appreciate material on record
The revision petitioner argued that the courts failed to consider crucial details, such as the absence of the accused's signature on bills and discrepancies in the amounts mentioned in different documents. The petitioner claimed that the complainant did not establish the transactions conclusively, warranting interference by the Court.

Issue 4: Dispute regarding actual delivery of medicines
The petitioner raised concerns about the lack of evidence proving the actual delivery of medicines to the accused. The petitioner highlighted discrepancies in the bills and the absence of signatures, casting doubt on the authenticity of the transactions and the outstanding amount claimed.

Issue 5: Legal notice issued, no reply given
The complainant issued a legal notice regarding the bounced cheque, but the accused did not respond or provide any rebuttal evidence to challenge the presumption under Section 139 of the NI Act. The failure to contest the legal notice and present a credible defense weakened the accused's position.

Issue 6: Rebuttal of presumption under Section 139 of NI Act
The courts noted that the accused did not effectively rebut the presumption arising from the issuance of the cheque. The absence of a strong defense and failure to provide counter-evidence during cross-examination weakened the accused's case, leading to the confirmation of the conviction.

Issue 7: Exercise of revisional jurisdiction by the Court
After considering the arguments and evidence presented, the Court concluded that the lower courts did not commit errors in appreciating the evidence. The Court found no illegality in the judgments and declined to exercise revisional powers, ultimately dismissing the revision petition due to the lack of grounds for interference.

This detailed analysis covers the key issues raised in the legal judgment, addressing the arguments presented by the parties and the Court's reasoning behind the decision to dismiss the revision petition.