2022 (11) TMI 493 - HC - Indian Laws

Dishonor of Cheque - insufficient funds - legally enforceable debt or not - rebuttal of statutory presumption u/s 139 of NI Act - non production of best evidence - HELD THAT - In the case in hand, it is found that there is no dispute that there was business transaction between the petitioner and the respondent and also there is no dispute that the petitioner has admitted in his evidence having filled up the dates and amount of sum in the cheques and also there is no quarrel at the Bar that the cheques were presented to the banker by the respondent and the same were returned unpaid with the endorsement- insufficient fund . There is also no dispute that the respondent has issued legal notice to the petitioner demanding the cheques amount and the petitioner had failed to make the payment within the stipulated period, and thereafter, the petitioner had filed the complaint under section 138 of the N.I. Act. Thus, the presumption under sections 139 and 118(a) of the N.I. Act is very much available here in this case. It is a fact that the respondent had produced Tax Invoice and Challan of selling computers, laptops and accessories to the petitioner. Though Mr. Tiwari, the learned counsel for the petitioner has submitted that the respondent has withdrawn the relevant evidence and because of non-consideration of the same by the learned courts below in their judgments leads to perversity, yet, the same would not disentitled the learned courts below from drawing the statutory presumption available under section 139 of the N.I. Act. What is to be noted here is that the petitioner also failed to make any such prayer before the learned court below for production of the said documents. It also cannot be said that there is any material alteration of the cheques and no adverse inference can be drawn against the respondent and sections 20 and 87 of the N.I. Act would not come into aid of the petitioner. Mr. Deka, the learned counsel for the respondent has rightly pointed out this in his argument and submits that since signed cheques in questions were respondent in discharge of liability, non-existence of which could not be established by leading cogent evidence, it can reasonably be presumed that the cheque was filled in by the respondent being the payee at his request and/or with his acquiescence and the subsequent filling in of an unfilled signed cheque is not an alteration. This court is of the view that the petitioner herein has failed to rebut the statutory presumption drawn under section 139 of the N.I. Act. There is nothing on the record to show that the learned courts below have committed any jurisdictional error - Petition dismissed.

Summary

Issues Involved:
1. Legality and correctness of the judgment and order convicting the petitioner under Section 138 of the N.I. Act.
2. Consideration of the evidence and presumption under Section 139 of the N.I. Act.
3. Evaluation of the alleged material alteration of the cheques.
4. Applicability of Sections 20 and 87 of the N.I. Act.
5. Jurisdictional error and miscarriage of justice by the lower courts.

Detailed Analysis:

1. Legality and Correctness of the Judgment and Order:
The petitioner challenged the judgment and order dated 13.11.2014, passed by the learned Sessions Judge, North Lakhimpur, which affirmed the conviction under Section 138 of the N.I. Act by the Chief Judicial Magistrate, Lakhimpur. The petitioner was sentenced to pay a fine of Rs. 5,000/- with default stipulation.

2. Consideration of Evidence and Presumption under Section 139 of the N.I. Act:
The petitioner argued that the cheques were blank and given as security, thus not constituting an offence under Section 138 of the N.I. Act. The court noted that Section 139 provides a presumption in favor of the holder of the cheque, which is rebuttable. The petitioner contended that he had rebutted this presumption, but the court found that the petitioner failed to provide sufficient evidence to counter the presumption. The court referenced several case laws, including Rangappa v. Sri Mohan, to emphasize that the presumption under Section 139 is rebuttable by a preponderance of probabilities.

3. Evaluation of Alleged Material Alteration of the Cheques:
The petitioner claimed that the respondent filled in the amounts and dates on the cheques, constituting a material alteration under Section 87 of the N.I. Act. However, the court found that the petitioner admitted to having filled in the dates and amounts himself and that there was no material alteration. The court cited the case of Bir Singh vs. Mukesh Kumar, which held that the subsequent filling in of an unfilled signed cheque by the payee does not constitute an alteration.

4. Applicability of Sections 20 and 87 of the N.I. Act:
The petitioner argued that the cheques were bills of exchange and not cheques under Sections 5 and 6 of the N.I. Act. The court rejected this argument, stating that the cheques were indeed valid under the N.I. Act and that there was no material alteration requiring consent under Section 87. The court emphasized that the presumption under Section 139 still applied and had not been successfully rebutted by the petitioner.

5. Jurisdictional Error and Miscarriage of Justice by the Lower Courts:
The petitioner claimed that the lower courts committed jurisdictional errors and that their judgments suffered from perversity. The court, however, found no jurisdictional error or miscarriage of justice. It stated that the High Court, in its revisional jurisdiction, cannot substitute its view for that of the trial court if two views are possible, referencing the case of Helper Girdharbhai vs. Saiyed Mohmad Mirsaheb Kadri and Ors.

Conclusion:
The court dismissed the revision petition, finding it devoid of merit. It upheld the concurrent findings of the lower courts that the petitioner failed to rebut the statutory presumption under Section 139 of the N.I. Act and that there was no jurisdictional error or miscarriage of justice in the lower courts' judgments. The interim relief granted earlier was vacated, and the parties were ordered to bear their own costs.