2022 (3) TMI 1052 - HC - Indian Laws

Dishonor of Cheque - insufficient funds - legally enforceable debt or not - alteration in the date of the cheque so as to bring it within the validity period - Rebuttal of presumption - HELD THAT - Section 139 of the N.I.Act enables the Courts to raise a presumption that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. It is for the accused to prove that it was not issued for any legally enforceable debt. True it is that accused need not step into witness box to prove that there was no legally enforceable debt. He can prove it from the cross-examination of the witnesses and other evidence that there was no legally enforceable debt. In the case at hand, except alleging that there was alteration in the date, nothing has been brought on record to show that there was no legally enforceable debt. Report of the Handwriting Export was received indicating therein that there was alteration - in the cross-examination also, accused could not bring on record that there was no legally enforceable debt for issuance of cheque. The learned Additional Sessions Judge has also given cogent reasons for rejecting this argument of the accused. Revisional Court cannot re-appreciate evidence unless it is shown that the findings of the learned trial Court and the learned Appellate Court are perverse. It cannot be said that the findings of the learned trial Court and learned Appellate Court are perverse. Therefore, there are no infirmity in the appreciation of evidence made by the learned trial Court and the learned Appellate Court. It cannot be said that the learned Additional Sessions Judge has given cogent reasons. No documentary proof was placed on record to show that accused is a handicapped person. His age shown to be 55 years. Thus, at the time of deciding the appeal, he was not even Senior Citizen. Therefore, the leniency shown by the learned Additional Sessions Judge was wholly unwarranted - In the case at hand, the learned Additional Sessions Judge awarded a fee-bite sentence. Smt.Kulkarni, learned counsel for the complainant is right in contending that accused did not pay the amount since the year 2004 and if deterrence of punishment of imprisonment is removed, there is no possibility of the accused paying the amount. Award of sentence should be to give proper effect to the object of the legislation. By awarding fee-bite sentence, object of Section 138 of the N.I.Act is frustrated. Therefore, the learned Appellate Court committed error in setting aside the substantive sentence. Criminal Revision application is allowed.

Summary

Issues:
1. Revision against order maintaining conviction but modifying sentence.
2. Dispute over alteration in the date of the cheque.
3. Legal enforceability of debt and presumption under Section 139 of the N.I. Act.
4. Validity of the substantive sentence awarded by the trial court.
5. Consideration of deterrence and proper effect of legislation in sentencing.

Issue 1: Revision against order maintaining conviction but modifying sentence:
The judgment involves two criminal revision applications: one by the complainant and the other by the accused. Both revisions challenge the order of the Additional Sessions Judge, which maintained the conviction of the accused but modified the substantive sentence imposed by the trial court. The revisions were disposed of by a common order.

Issue 2: Dispute over alteration in the date of the cheque:
The accused contended that the date on the cheque was altered by the complainant from 1st February 2004 to 31st December 2004. This alteration was crucial as the accused argued that the cheque would have lost its validity if the original date was considered. The courts examined this defense but found no evidence to support the accused's claim of alteration.

Issue 3: Legal enforceability of debt and presumption under Section 139 of the N.I. Act:
Section 139 of the Negotiable Instruments Act provides a presumption in favor of the holder of a cheque that it was issued for a legally enforceable debt unless proven otherwise. The accused failed to prove that there was no legally enforceable debt, and both the trial court and the appellate court rejected this argument based on the evidence presented.

Issue 4: Validity of the substantive sentence awarded by the trial court:
The trial court sentenced the accused to three months of rigorous imprisonment and imposed a fine. The Additional Sessions Judge maintained the conviction but set aside the substantive sentence without providing sufficient reasons. The High Court found this leniency unwarranted, especially as there was no proof of the accused being a handicapped person or any exceptional circumstances to justify a reduced sentence.

Issue 5: Consideration of deterrence and proper effect of legislation in sentencing:
The High Court emphasized the importance of deterrence in cases of dishonor of cheques under Section 138 of the N.I. Act. The court referred to previous judgments highlighting the need for sentences that give proper effect to the legislation and ensure that the objectives of the law are met. By setting aside the substantive sentence, the Additional Sessions Judge failed to uphold these principles, leading to the High Court's intervention to restore the original sentence of three months of rigorous imprisonment.

In conclusion, the High Court allowed the complainant's revision application, set aside the modification of the substantive sentence by the Additional Sessions Judge, and restored the trial court's sentence. The accused's revision application was dismissed.