2023 (3) TMI 1064 - HC - Indian Laws

Dishonour of Cheque - legally enforceable debt - whether the judgment dated 20.08.2007 in Criminal Appeal No. 66 of 2006 on the file of learned X Additional District Sessions Judge Krishna at Machilipatnam suffers with any illegality irregularity and impropriety and whether there are any grounds to interfere with the said judgment of the learned Additional Sessions Judge? - Section 138 of N.I. Act - HELD THAT - The complainant examined P.W.2 who was the attestor of Ex.P.7 promissory note and P.W.2 supported the case of the complainant. Ex.P.7 literally support the case of the complainant that P.W.2 acted as an attestor to Ex.P.7. D.W.1 in cross examination admitted that he had no disputes with the attestors or scribe mentioned in Ex.P.7. There is no dispute about the signature of the accused in Ex.P.7. Even there is no dispute that the cheque number as mentioned in Ex.P.1 was also written by the accused - As admitted by D.W.1 the accused he did not intimate to the bank and even did not intimate to the police that Ex.P.1 cheque was lost from his custody. Therefore it is very clear that though the account was closed in the year 2001 as per D.W.1 and D.W.2 but it was within the exclusive knowledge of the accused as to why he issued Ex.P.1 in the year 2004 in favour of the complainant. The defence of the accused that he used to sign the cheques beforehand and he used to return unused leaves etc. is not at all probabalized by virtue of the evidence of D.W.2 coupled with Ex.D.1 to Ex.D.4. No man of reasonable prudent would venture to sign beforehand especially when he was a habit of returning the unused cheques to the bank. The complainant was able to prove before the Court below that the accused issued Ex.P.1 cheque in favour of the complainant towards part discharge of legally enforceable debt. The date of return was on 28.10.2004. Ex.P.6 reveals that the complainant also sent a legal notice under certificate of posting. The complainant could not be found fault for the absence of the accused in the headquarters when the postal authorities tried to serve the notice. Therefore if the registered notice was sent to the correct address of the accused with proper postage and when the accused was not available at his house without any instructions to the inmates it can be taken as a proper service. Therefore there is no dispute that after waiting for the statutory period only from the date of return the complainant instituted the complaint before the Court below. Hence the contention of the accused that there was no proper compliance of statutory notice under Section 138 of N.I. Act cannot stand to any reason - the contention of the accused that there was no proper compliance of statutory notice under Section 138 of N.I. Act cannot stand to any reason. There are no grounds to interfere with the judgment of the learned X Additional District and Sessions Judge Krishna at Machilipatnam - the Criminal Revision Case is dismissed.

Summary

Issues Involved:

1. Whether the judgment in Criminal Appeal No. 66 of 2006 suffers from any illegality, irregularity, or impropriety.
2. Whether the statutory requirements under Section 138 of the N.I. Act were complied with.
3. Whether the accused issued the cheque towards part discharge of a legally enforceable debt.

Summary:

Issue 1: Legality, Irregularity, or Impropriety of the Judgment

The petitioner challenged the judgment dated 20.08.2007, in Criminal Appeal No. 66 of 2006, where the learned Additional Sessions Judge dismissed the appeal and confirmed the trial court's judgment convicting the petitioner under Section 138 of the Negotiable Instruments Act (N.I. Act). The trial court had sentenced the petitioner to rigorous imprisonment for two years and to pay Rs. 1,50,000/- as compensation. Both the trial court and the appellate court found in favor of the complainant, establishing that the accused issued the cheque towards part discharge of a legally enforceable debt.

Issue 2: Compliance with Statutory Requirements under Section 138 of the N.I. Act

The complainant presented the cheque within the stipulated time, which was dishonored due to the account being closed. The complainant issued a registered notice and a notice by certificate of posting to the accused, informing him of the dishonor and demanding payment within 15 days. The postal authorities attempted to serve the notice, but it was returned with an endorsement of "door locked." The court held that the complainant had complied with the statutory requirements, and the absence of the accused at the time of delivery did not invalidate the service of notice.

Issue 3: Issuance of Cheque Towards Legally Enforceable Debt

The complainant's case was supported by evidence, including the promissory note (Ex.P.7) and the testimony of P.W.2, who attested the promissory note. The accused admitted his signature on the cheque but claimed it was stolen and filled out without his consent. The court found the defense unconvincing, noting that the accused did not report the alleged theft to the bank or police. The evidence showed that the accused issued the cheque knowing his account was closed, and the complainant proved the existence of a legally enforceable debt.

Conclusion:

The court found no grounds to interfere with the judgments of the lower courts. The complainant had proven the accused's guilt under Section 138 of the N.I. Act, and the statutory requirements were met. The Criminal Revision Case was dismissed, and the trial court was directed to carry out the sentence imposed on the appellant.