2023 (9) TMI 51 - HC - Indian Laws

Dishonour of Cheque - legally recoverable debt or other liability or not - mandatory requirements of Sections 138 and 142 of the N.I. Act were not complied with - rebuttal of presumptions. Whether both the cheques in question were issued for legally recoverable debt or other liability? - HELD THAT - In view of Section 139 of the N.I. Act, the legal presumption is raised after issuance of the cheque that it was issued for a legally recoverable debt or other liability. Since the complainant had discharged his burden in regard to issuance of the cheque on which the signature has been admitted by the accused himself and the amount is not dispute, therefore, the burden of proof shifts upon the accused to rebut this legal presumption under Section 139 of the N.I. Act to show that the cheque was not issued for any legally recoverable debt or other liability. In view of the Section 118 of the N.I. Act until the contrary is proved the presumptions shall be made that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. The legal presumption in regard to the issuance of the cheque and also the legally recoverable debt or liability, in view of the evidence adduced on behalf of the complainant to prove the complaint case, the burden of proof which was shifted upon the accused to rebut this presumption of liability of Section 118 and 139 of N.I. Act shifted on the accused but the same has not been discharged at all. The accused has taken the defence under Section 313 Cr.P.C. but has not produced himself in evidence there being no evidence, the compliant case is found proved beyond all reasonable doubt on behalf of the complainant. The finding recorded by the learned trial court as well as the learned appellate court holding the appellant guilty for the offence under Section 138 N.I. Act is not based on any perversity and both the judgments passed by the trial court and appellate court needs no interference and the same are affirmed. Accordingly, this criminal revision is hereby dismissed.

Summary

Issues Involved:
1. Legally recoverable debt or other liability.
2. Compliance with procedural requirements under Sections 138 and 142 of the N.I. Act.
3. Rebuttal of legal presumptions under Sections 118 and 139 of the N.I. Act.

Summary:

Issue 1: Legally Recoverable Debt or Other Liability

The court examined whether the cheques in question were issued for a legally recoverable debt or liability. The complainant alleged that the accused issued two cheques to discharge his liability of Rs. 7.60 lacs, which were dishonored due to "Insufficient Funds." The accused contended that the cheques were given as security to another person and misused by the complainant. The court held that the execution of the cheques was not denied by the accused, and the legal presumption under Section 139 of the N.I. Act applied, indicating that the cheques were issued for a legally enforceable debt or liability. The accused failed to rebut this presumption effectively.

Issue 2: Compliance with Procedural Requirements

The court reviewed the procedural compliance under Sections 138 and 142 of the N.I. Act. The cheques were presented within the stipulated period, and the legal notice was issued and received within the required timeframe. The complaint was filed within the prescribed period after the cause of action arose. The court found that all mandatory procedural requirements were duly complied with by the complainant.

Issue 3: Rebuttal of Legal Presumptions

The court noted that under Sections 118 and 139 of the N.I. Act, there is a presumption in favor of the holder of the cheque that it was issued for consideration and for the discharge of a debt or liability. The accused admitted the signatures on the cheques but did not provide sufficient evidence to rebut the presumption of liability. The defense witness did not address the issue of legally recoverable debt. The court cited precedents from the Hon'ble Apex Court, emphasizing that the burden of proof shifts to the accused to disprove the presumption, which the accused failed to do.

Conclusion:

The court affirmed the judgments of the trial court and the appellate court, holding the accused guilty under Section 138 of the N.I. Act. The criminal revision was dismissed, and the petitioner was directed to surrender to serve the remaining sentence. The court found no perversity in the judgments of the lower courts and upheld the conviction and sentence.