2022 (3) TMI 1096 - HC - Indian Laws

Dishonor of Cheque - discharge of legally enforceable debt or not - rebuttal of presumption - misuse of cheque - forgery - HELD THAT - It is trite law that once issuance of a cheque and signature hereon are admitted presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption though accused need not adduce his own evidence and can rely upon the material submitted by the complainant however mere statement of the accused may not be sufficient to rebut the said presumption. While imposing sentence on the accused after his conviction it is to be kept in mind that the sentence for offence under Section 138 of NI Act should be of such nature as to give proper effect to the object of legislation and no drawer of the cheque can be allowed to take dishonour of cheque issued by him light heartedly. The Magistrate can alleviate the grievance of the complainant by making resort to Section 357(3) Cr.P.C. wherein no limit of compensation to be awarded by the Magistrate has been mentioned and thus the Magistrate is empowered to impose a reasonable amount of compensation payable to complainant - In the instant case the revisionist has taken different stands with regard to the cheque in question. It was stated that the cheque in question was lost and a complaint in this regard was also lodged in the year 2014 but the original complaint has not been placed on record by the revisionist. The revisionist neither informed the concerned bank about the cheque in question which got stolen nor requested the bank to get the payment stopped against the said cheque which shows his malafides. The revisionist has also taken the plea that the cheque in question was handed over to one Pankaj Bhalla and the same got stolen. As far as the contention of the revisionist that he is a stranger to the respondent No. 2 and that he has no legal liability towards him is concerned the revisionist has failed to rebut the presumption in favour of the complainant and the mere statement by the revisionist in itself is insufficient to raise suspicion with regards to the entire case of prosecution. There are no infirmity in the impugned Judgment - revision petition dismissed.

Summary

Issues:
1. Revision petition challenging the judgment under Section 138 of the Negotiable Instruments Act (NI Act).
2. Dispute over a cheque issued by the revisionist and subsequent legal proceedings.
3. Conviction under Section 138 NI Act, modification of sentence, and challenge to the judgment.

Analysis:

Issue 1: Revision petition challenging the judgment under Section 138 of the NI Act
The revision petition was filed under Section 401 read with Section 482 of the Criminal Procedure Code (Cr.P.C.) to set aside the judgment dated 26.03.2021 passed by the Ld. ASJ-02. The revisionist sought to quash the conviction and sentence imposed by the lower courts and requested further orders as deemed fit by the Hon'ble Court. The key prayers included setting aside the judgment, modifying the sentence, and ensuring justice in the case.

Issue 2: Dispute over a cheque issued by the revisionist and subsequent legal proceedings
The respondent filed a complaint under Section 138 NI Act, alleging that the revisionist had taken a loan and issued a cheque that was returned due to insufficient funds. Despite a legal notice, the payment was not made, leading to the complaint case. The Ld. MM convicted the revisionist, sentencing him to imprisonment and a fine. The revisionist challenged this in a criminal appeal, which led to the modification of the sentence by the Ld. ASJ-02. The revisionist raised defenses regarding lost cheques, timing of the transaction, and the legality of the loan agreement.

Issue 3: Conviction under Section 138 NI Act, modification of sentence, and challenge to the judgment
The Ld. counsel for the revisionist argued that the revisionist was a stranger to the respondent, questioning the legality of the loan and the cheque transaction. However, the Ld. counsel for the respondent presented evidence of the cheque, legal notices, and postal receipts. The court emphasized the legal position under the NI Act, highlighting the obligations of the drawer of a dishonored cheque. The court noted the presumption of a legally enforceable debt upon cheque issuance and the burden on the accused to rebut this presumption. The judgment discussed the importance of proper sentencing under Section 138 NI Act and the power of the Magistrate to award compensation to the complainant. Ultimately, the court found no infirmity in the impugned judgment and dismissed the revision petition, upholding the trial court's decision.

In conclusion, the judgment upheld the conviction and sentence of the revisionist under Section 138 NI Act, emphasizing the legal obligations regarding dishonored cheques and the burden of proof on the accused to rebut the presumption of debt. The court's detailed analysis of the evidence and legal principles led to the dismissal of the revision petition and affirmed the trial court's decision.