2022 (5) TMI 463 - HC - Indian Laws

Dishonor of Cheque - Insufficient Funds - enforcement of legally enforceable debt or not - framing of charges - rebuttal of presumption - section 139 of NI Act - HELD THAT - The complaint was lodged by one Kishore Kumar, Legal Officer of the respondent company. During trial, another employee from the respondent company viz., Suresh entered into the box and examined himself as PW1. In his evidence, he stated about the issuance of cheque (Ex.P2) and dishonour of the same. But he is unable to give any answer with regard to issuance of cheque (Ex.P2), dishonour of the cheque, issuance of statutory notice (Ex.P5). PW1 not able to give details of transaction. On the other hand, he categorically confirmed that it is only Ravi, Director of the respondent company, would be the right person to give answer for the cheque and its liability. But, in this case, the said Ravi not examined as witness by the respondent company. It is not necessary, in each case, the accused has to get into the box under Section 315 Cr.P.C., and give explanation. From the available materials and by way of cross examination, the accused is only to probablize his defence and disprove his liability. In this case, the petitioner had rebutted by raising probable defence about the existence of a legally enforceable debt or liability. The same was rightly considered by the trial Court in its judgment, dated 09.08.2016 and the same is hereby confirmed. The lower appellate Court finding that the presumption under section 139 of the Negotiable Instruments Act, not rebutted, wrongly convicted and sentenced the petitioner, which needs interference of this Court - the petitioner is acquitted of all charges framed against him - Criminal Revision Case is allowed.

Summary

Issues: Appeal against acquittal, Conviction under Section 138 of Negotiable Instruments Act, 1881, Failure to prove liability, Presumption under Section 139 of the Act.

Issue 1 - Appeal against Acquittal:
The respondent filed an appeal against the acquittal of the petitioner/accused by the trial Court. The lower appellate Court set aside the trial Court's judgment and convicted the petitioner under Section 138 of the Negotiable Instruments Act, 1881. The petitioner then filed a Criminal Revision against this judgment.

Issue 2 - Conviction under Section 138 of the Act:
The case involved the issuance of a cheque by the petitioner to the respondent, which was dishonored due to insufficient funds. The respondent issued a statutory notice demanding payment, which the petitioner failed to comply with. The lower appellate Court convicted the petitioner based on the presumption under Section 139 of the Act.

Issue 3 - Failure to Prove Liability:
During the trial, the respondent's witness, PW1, failed to provide specific details about the transaction between the parties. The petitioner argued that the respondent did not adequately prove the liability, and the trial Court acquitted the petitioner based on this lack of evidence.

Issue 4 - Presumption under Section 139 of the Act:
The lower appellate Court relied on the presumption under Section 139 of the Negotiable Instruments Act to convict the petitioner. However, the petitioner disputed the liability during cross-examination and provided an explanation for the issuance of the cheque, which was originally given as security for a different transaction. The Court noted that the presumption under Section 139 is rebuttable, and the respondent failed to provide sufficient evidence to prove the liability.

The Court analyzed the evidence presented during the trial, noting that the respondent's witness was unable to provide crucial details about the transaction. The petitioner's defense raised doubts about the existence of a legally enforceable debt or liability, which the trial Court rightly considered in acquitting the petitioner. The Court found that the lower appellate Court wrongly convicted the petitioner based on the unrebutted presumption under Section 139 of the Act. Consequently, the judgment of the lower appellate Court was set aside, and the petitioner was acquitted of all charges.