2022 (2) TMI 612 - HC - Indian Laws

Dishonor of Cheque - existence of legally enforceable debt or not - rebuttal of statutory presumption - cheque being lost by the accused - Section 138 and 139 of the NI Act - HELD THAT - To take the cognizance under Section 138 of the NI Act the amount should be legally enforceable debt and the complainant except the oral statement of CWs 1, 2, 3, cheque and bank return slip on the ground of Drawer s Sign Mismatch has not produced any other evidence which would strengthen the case of the complainant in view of the defence taken by the accused. The defence runs around the cheque being lost by the accused and the GD entry. While initiating the said criminal proceeding before the trial court nothing prevented the complainant to place on record documentary evidence with regard to the transaction to say legally enforceable debt - This court has no hesitation to draw an inference that the complainant failed before the court for not placing any document to establish the transaction between the complainant and the accused herein. CW3 at one point of time says that he does not know Pintu Saha and later he says Pintu Saha was also present along with him in the shop of the complainant when transaction has taken place. The evidence of CW3 is inconsistent and the evidence appears to be fishy. Mr. Pintu saha who was shown as witness by complainant was not examined before the trial court. There are several laches on the part of the complainant and the order of the trial court and lower appellate court not considering the fact of cheque being lost and GD entry made before the police station Exhibit B cannot be appreciated and this court has no hesitation to set aside the Judgment order passed by the trial court and further order of the lower appellate court confirming the order of the trial court is also set aside - Petition dismissed.

Summary

Issues:
1. Disposal of criminal petition and revision petition related to judgment and order dated 22.05.2018 in CR (NI) 34 of 2017.
2. Discrepancy in the punishment awarded by the court below in relation to the cheque amount and fine imposed.
3. Allegations of cheque dishonor, loan transaction, and legal enforceability of debt under Section 138 of the NI Act.
4. Failure to produce documentary evidence to establish the transaction between the complainant and the accused.
5. Inconsistencies in witness statements and lack of examination of a key witness.

Analysis:

1. The judgment pertains to the disposal of two petitions, Crl.Petn 43 of 2018 and Crl.Rev.Petn 27 of 2021, concerning a judgment and order dated 22.05.2018 in CR (NI) 34 of 2017. Both petitions were disposed of through a common judgment and order by the court.

2. The discrepancy arises from the court below imposing a fine of ?4,00,000 on the accused, which was less than the cheque amount of ?4,70,000. The complainant sought modification to rectify this error, leading to the present criminal petition.

3. The case involves allegations of cheque dishonor, a loan transaction, and the legal enforceability of debt under Section 138 of the NI Act. The complainant claimed that the accused borrowed ?4,70,000 and issued a cheque, which was later dishonored due to "Drawer's Sign Mismatch."

4. The court noted the failure of the complainant to produce documentary evidence establishing the transaction as a legally enforceable debt. This lack of evidence raised doubts about the enforceability of the cheque amount, especially in light of the accused's defense regarding lost cheques and the GD entry made prior to the dishonor.

5. Inconsistencies in witness statements, particularly regarding the presence of a key witness during the transaction, raised doubts about the credibility of the evidence presented. The court highlighted the absence of examination of a crucial witness, Mr. Pintu Saha, and deemed the evidence as inconsistent and unreliable.

6. Considering the laches on the part of the complainant, the court set aside the judgments of the trial court and the lower appellate court. The judgment concluded by dismissing Crl.Petn 43 of 2018 and allowing Crl.Rev.Petn 27 of 2021, thereby overturning the previous orders and providing a detailed analysis of the legal and evidentiary aspects of the case.