9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (7) TMI 1058 - HC - Indian LawsDishonour of Cheque - Legally enforceable debt or not - acquittal of the accused - rebuttal of mandatory presumption - HELD THAT - Once the fundamental ingredients which gives rise to cause of action under Section-138 of N. I. Act have been established a mandatory presumption under Section-139 of N. I. Act, is effected in favour of complainant and it also extends to the existence of legally enforceable liability itself. A three judged bench of Hon'ble Apex Court in RANGAPPA VERSUS SRI MOHAN, 2010 (5) TMI 391 - SUPREME COURT has held that this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. On perusal of the record it is found that complainant did not adduce the original deed of partnership and accordingly not exhibited the same. Furthermore Sri Asish Datta (arbitrator) was not cited as a witness by the complainants and no original A/C No. 11866553823 (C/C) was submitted and exhibited. Moreover, at the time of preparation of deed of addendum 03 persons namely Raiharan Majumder, Ashis Datta and Umesh Majumder put their signatures as a witnesses but they were not examined by the complainant and in respects of cheques, as per deed of addendum, were issued on 19.12.2016 and it is deposited in the bank on 31.07.2017 i.e. to say beyond the period of limitation i.e. six months. Thus, this Court is also of the opinion that the accused has successfully rebutted the mandatory presumption of law and also successfully controverted the story of the complainant. Complainant in his complaint petition as well as in examination-in-chief stated that they have been doing business of brick industries and construction work of the M/S Vida Engineering Company Ltd., and the accused was made attorney on behalf of the said Vida Engineering Company Ltd. but no document is placed by the complainants to prove the same and it is also admitted by the complainants in their cross-examination. The complainant is also failed to prove that on the day of issuing of cheque the liability of accused was equivalent to the cheque amount. As per Exbt.2, i.e. the reply of notice to accused person and he admitted that there has been a debt of Rs.29,00,000/- with SBI, Belonia Branch in the name of partnership farm. Section-138 creates a deeming offence. The provisos prescribe stipulations to safeguard the drawer of the cheque by providing them the opportunity of responding to the notice and an opportunity to repay the cheque amount. The conditions stipulated in the provisos need to be fulfilled in addition to the ingredients in the main provision of Section-138. It has already been concluded above that the offence under Section-138 arises only when a cheque that represents a part or whole of the legally enforceable debt at the time of encashment is returned by the bank unpaid. Since the cheque did not represent the legally enforceable debt at the time of encashment, the offence under Section-138 is not made out. The subject matter involved in this petition is not the cheque amount but, it is a settlement of account of the transaction made is the amount made under the demand notice i.e. Rs.13,50,000/- but whereas the cheque amount is Rs.10,00,000/- each x 4 Rs.40,00,000/-. Since, litigation under Section-138 is purely technical in nature, the scope of the same cannot be enlarged. This Court is of the view that the appellants have failed to prove their projected case against the respondent No.1 and consequently, the instant appeal preferred by the appellants stands dismissed. Hence, the order of acquittal recorded by the learned Court below does not deserve any interference. The Judgment and order of acquittal passed by the learned Court below is affirmed.
Issues Involved:
1. Validity of the acquittal order under Section 138 of the Negotiable Instruments Act, 1881. 2. Admissibility and sufficiency of evidence presented by the complainants. 3. Compliance with legal requirements under Section 138 of the NI Act. 4. Evaluation of the presumption under Section 139 of the NI Act and its rebuttal. Summary: 1. Validity of the Acquittal Order: The appeal was filed under Sub-Section-4 of Section-378 of the Code of Criminal Procedure against the acquittal order passed by the Chief Judicial Magistrate, South Tripura, Belonia. The trial court found the accused not guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881, and acquitted him. 2. Admissibility and Sufficiency of Evidence: The complainants alleged that the accused issued four cheques amounting to Rs. 10,00,000 each, which were dishonored due to the closing of the account. The trial court observed that the accused successfully rebutted the mandatory presumption of law drawn in favor of the complainant. The complainants failed to provide original return memos and other necessary documents to substantiate their claims. The court noted that the complainants did not submit any documents regarding their partnership with the accused or the alleged appointment of the accused as an attorney on behalf of Vida Engineering Co. Ltd. 3. Compliance with Legal Requirements: The court found that the legal notice issued to the accused did not specifically contain a demand for the payment of the cheque amount, which is a fundamental requirement under Section 138 of the NI Act. The notice demanded Rs. 13,50,000, whereas the cheques amounted to Rs. 40,00,000. This discrepancy rendered the notice imperfect and non-compliant with the legal requirements. 4. Presumption under Section 139 and Rebuttal: The court emphasized that once the fundamental ingredients giving rise to a cause of action under Section 138 are established, a mandatory presumption under Section 139 of the NI Act is effected in favor of the complainant. However, the accused successfully rebutted this presumption by raising a probable defense and creating doubts about the existence of a legally enforceable debt or liability. The court referred to the Apex Court's decisions in Rangappa v. Sri Mohan and Suman Sethi v. Ajay K. Churiwal, which clarified the standard of proof required to rebut the presumption under Section 139. Conclusion: The court concluded that the complainants failed to prove their case against the accused. The trial court's order of acquittal was affirmed, and the appeal was dismissed. The court held that the judgments referred by the appellants were not relevant to the facts of the case and placed reliance on the Apex Court's decision in Suman Sethi v. Ajay K. Churiwal. The litigation under Section 138 is technical, and the scope cannot be enlarged to include settlement amounts not specified in the cheque.
|
