2022 (2) TMI 888 - HC - Indian Laws

Dishonor of cheque - failure to prove the ingredients of the offence under Section 138 of the N.I. Act against the accused/respondent herein - acquittal of the accused - presumptions not drawn - main contention urged by the learned counsel for the appellant is that, the accused had admitted her signature on the cheque and as such, the trial Court erred in not drawing presumption in favour of the complainant under Section 139 of the N.I. Act - section 138 of NI Act - HELD THAT - It is evident that, the complainant is making the specific allegation that he had advanced hand loan of ₹ 4,80,000/-to the accused in the first week of December, 2015. At the outset, it is to be noted here that the complainant has no where pleaded the specific date of advancement of the loan amount. This material pleading is missing. Further, there are no specific pleadings in the complaint as to when exactly the alleged cheque was issued to the complainant, by the accused. The complainant has no where specifically asserted the dates in this regard. The cheque is dated 08.01.2016. But, the allegations were that, in the first week of December, 2015, the loan was advanced. Admittedly, the accused has not denied her signature on Ex. P1 (Cheque). But, the defence of the accused was that, she had chit transaction with the wife of the complainant and she was required to pay ₹ 40,000/-to the wife of the complainant and in respect of the said repayment, she had issued a blank cheque to the wife of the complainant - the cross-examination of the complainant discloses that, he was not possessing ₹ 4,80,000/-when he said to have advanced the loan. His own admission discloses that he was possessing ₹ 2,00,000/-with him and he had secured ₹ 2,80,000/-from his son. Admittedly, his pension is ₹ 16,000/-p.m., and he is retired 10 years earlier to the alleged transaction. He has not produced any document to show that, he was possessing hard cash of ₹ 2,00,000/-. Even otherwise, there is no evidence as to what his son was doing and what is his financial status - also, the complainant has withheld the best material evidence available to him and as such, an adverse inference is required to be drawn in this regard against him. There is material alteration of the date in Ex. P2 (endorsement) and it directly has bearing on the limitation issue. Merely because the notice has been served and the accused has not replied, it cannot be a ground to admit the claim of the complainant. Apart from that, the complainant himself has got marked Ex. P7 (statement) during cross-examination of accused, wherein there is undertaking given by accused in respect of she being indebted to the complainant and his wife to the tune of ₹ 3,00,000/-including the chit fund amount, hand loan and interest. This statement is recorded on 22.09.2016 and this transaction is of 2015 and that too during the pendency of the proceedings - the accused need not to prove her case beyond reasonable doubt and the accused is required to prove her defence on the basis of preponderance of probabilities. In the instant case, considering the conduct of PW. 1 and admissions made in Ex. P7 and alteration in Ex. P2, it is evident that the complainant has failed to prove the transaction of advancing hand loan of ₹ 4,80,000/-to the accused and in discharge of the same, the accused issuing cheque in question under Ex. P1. The trial Court has considered all these aspects in a proper perspective and has properly analyzed the oral and documentary evidence and after appreciating the oral and documentary evidence in a proper perspective, the trial Court has arrived at a just conclusion - appeal dismissed.

Summary

Issues:
Challenge to judgment of acquittal under Section 138 of the Negotiable Instruments Act, 1881.

Detailed Analysis:

1. Factual Matrix and Allegations:
The complainant alleged that the accused availed a hand-loan and issued a cheque for repayment which bounced due to insufficient funds. The complainant filed a complaint under Section 138 of the N.I. Act.

2. Trial Proceedings:
The trial Court recorded statements, examined witnesses, and considered documentary evidence. The accused denied the allegations and presented a defense witness.

3. Contentions of Appellant and Respondent:
The appellant argued the accused admitted her signature on the cheque, seeking presumption under Section 139 of the N.I. Act. The respondent contended there was no transaction with the complainant, challenging his financial capacity.

4. Analysis of Financial Capacity:
The trial Court scrutinized the complainant's financial status, noting discrepancies in his claims and lack of evidence regarding the loan amount source. The accused challenged the loan transaction and the complainant's financial ability.

5. Presumption and Burden of Proof:
The Court examined the presumption under Section 139 of the N.I. Act and emphasized the complainant's failure to establish financial soundness. The accused's defense regarding a chit transaction was considered.

6. Evidentiary Issues:
The Court highlighted discrepancies in dates, an over-written bank document, and the complainant's contradictory statements. The accused's defense of a chit transaction with the complainant's wife was crucial.

7. Judgment and Conclusion:
The Court upheld the trial Court's acquittal judgment, emphasizing the complainant's failure to prove the loan transaction and the accused's defense. The appeal was dismissed, confirming the acquittal under Section 138 of the N.I. Act.