2022 (4) TMI 875 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - rebuttal of presumption of debt - legally enforceable liability or not - maintainability of complaint for not making the Firm as party to the proceedings - HELD THAT - This Court has to consider the material available on record. On perusal of the complaint, it discloses that the complainant has filed the complaint against the petitioner and others in their individual capacity, wherein, it is stated that the accused Nos. 1 to 4 are the partners of Itagi Medicals. The complainant and accused No. 1 are known to each other and specifically stated that accused No. 1 was in need of money, requested the complainant to pay the amount in 2004. Accused No. 1 and other accused pleaded their inability and sought time and ultimately accused No. 1 gave the cheque. It is not in dispute that at the first instance, the Trial Court acquitted accused Nos. 3 and 4 and also a case was split up against accused No. 2 and no details with regard to the status of split up case of accused No. 2. The matter was also challenged in the Appellate Court and remanded to the Trial Court for fresh consideration. When the cheques were admitted by this petitioner and only his defense that the cheques were given in 1993 and not in the year 2004 and the same has not been established. Hence, presumption has to be drawn in respect of the transaction is concerned. The Trial Court also in paragraph No. 17 taken note of the said fact into consideration and the Appellate Court in the appeal in paragraph No. 18 discussed that the accused has not disputed the issuance of cheque and the signature thereon. It is also the specific case of the accused that in order to discharge the liability, he had issued the cheque in question to the complainant - When both the Courts have given the reasoning while convicting the petitioner based on both oral and documentary evidence placed on record, there are no error committed by both the courts and only this Court can exercise the revisional jurisdiction if the judgment of the Trial Court and the Appellate Court contrary to the evidence available on record. If any such perverse finding is given or otherwise, the revisional jurisdiction cannot be exercised. Having taken note of such factual aspects is concerned; it is the matter of almost two decades and question of interfering with regard to the sentence also not warranted. The very contention is that both sentence as well as fine has been imposed and the said contention also cannot be accepted and both can be imposed. Here is an order to undergo six months simple imprisonment and now it is made it as two years and taking into note of the same, the same is not harsh as contended by the learned counsel for the petitioner. But, he claims that Firm was closed in the year 1993 and he is having the financial capacity and the said ground also cannot be accepted. The revision petition is dismissed.

Summary

Issues Involved:
1. Error in accepting evidence by the Trial Court.
2. Error by the Appellate Court in confirming the judgment of conviction and sentence.
3. Maintainability of the complaint for not making the Firm a party to the proceedings.
4. Revisional jurisdiction of the High Court.
5. Appropriateness of the sentence and fine imposed.

Analysis:

1. Error in Accepting Evidence by the Trial Court:
The petitioner contended that the presumption was rebutted by examining himself as D.W. 1 and presenting documents. Despite this, the Trial Court convicted the petitioner. The petitioner argued that the cheques were issued in 1993, not in 2004, and were misused. However, the Court noted that the issuance of cheques was not disputed, and the petitioner failed to produce bank statements or other evidence to substantiate his claim. The Court found that the petitioner admitted the complainant's capacity to lend money, thus weakening his defense. The Court concluded that the petitioner did not effectively rebut the presumption under Section 138 of the N.I. Act.

2. Error by the Appellate Court in Confirming the Judgment of Conviction and Sentence:
The Appellate Court re-appreciated the evidence and dismissed the appeal, confirming the Trial Court's judgment. The High Court found no error in the Appellate Court's decision, noting that the petitioner admitted to issuing the cheques and failed to provide credible evidence to support his defense. The Court emphasized that both the Trial and Appellate Courts had given reasoned judgments based on the evidence presented.

3. Maintainability of the Complaint for Not Making the Firm a Party to the Proceedings:
The petitioner argued that the complaint was not maintainable as the Firm was not made a party. This defense was raised for the first time in the revision petition. The Court noted that the complaint was filed against the partners in their individual capacities, with specific allegations against the petitioner. The Court found that the petitioner did not raise this defense at the initial stages and that the complaint's averments were clear and specific. Hence, the Court rejected this contention.

4. Revisional Jurisdiction of the High Court:
The Court highlighted the limited scope of revisional jurisdiction, which can only be exercised if the judgments of the lower courts are contrary to the evidence or if there are perverse findings. The Court found no such circumstances in this case and upheld the findings of both the Trial and Appellate Courts.

5. Appropriateness of the Sentence and Fine Imposed:
The petitioner contended that the sentence and fine were unjust and that he was in financial difficulty. The Court noted that the case had been ongoing for almost two decades and found no grounds to interfere with the sentence. The Court held that both imprisonment and fine could be imposed and found the sentence of six months' simple imprisonment and a fine of ?2 Lakhs appropriate.

Conclusion:
The revision petition was dismissed, with the Court affirming the judgments and orders of the Trial and Appellate Courts. The Court found that the petitioner failed to rebut the presumption under Section 138 of the N.I. Act and that the complaint was maintainable despite not making the Firm a party. The Court also upheld the sentence and fine imposed, considering the prolonged duration of the case.