2023 (9) TMI 1363 - HC - Indian Laws

Dishonour of Cheque - legally enforceable debt or not - Cheque given as security - incomplete signature on the cheque - HELD THAT - The case of the petitioner is supported that the cheque issued was undated and given as a security. The Signature on the cheque is also incomplete - As such on the date of presentation of the cheque, the company which allegedly issued the cheque was no more existence. It is thus clear that the mandatory provision of section 138 N.I. Act is not present in the present case. The presumption as to the debt and/or liability has also been rebutted by proving that the cheque with incomplete signature was subsequently dated and submitted 8 months after the company which allegedly issued it had closed down, with no outstanding dues. Revision allowed.

Summary

Issues Involved:
1. Conviction u/s 138 of the Negotiable Instruments Act, 1881.
2. Validity of the cheque issued post business closure.
3. Rebuttal of presumption u/s 139 of the N.I. Act.
4. Legality of the judgments passed by the Trial and Appellate Courts.

Summary:

Issue 1: Conviction u/s 138 of the Negotiable Instruments Act, 1881
The petitioner was convicted u/s 138 of the Negotiable Instruments Act, 1881, by the Learned Metropolitan Magistrate, 3rd Court, Calcutta, and sentenced to suffer imprisonment till rising of the court and directed to pay compensation of Rs. 10,00,000/- in default to suffer simple imprisonment for 1 year. This judgment was affirmed by the Learned Judge, Bench-1, City Sessions Court, Calcutta.

Issue 2: Validity of the Cheque Issued Post Business Closure
The petitioner argued that the cheque in question was issued as security and was undated, given before the business closure in March 2011. The cheque was dated 24.10.2011, which is 8 months after the business had closed, supporting the petitioner's claim that it was given as security and misused by the complainant.

Issue 3: Rebuttal of Presumption u/s 139 of the N.I. Act
The petitioner submitted that all dues were cleared before the business closure and provided evidence (Exbt - B and C) to rebut the presumption u/s 139 of the N.I. Act. The court found that the cheque, with an incomplete signature, was presented 8 months after the company had closed down, indicating no outstanding dues and supporting the petitioner's rebuttal.

Issue 4: Legality of the Judgments Passed by the Trial and Appellate Courts
The High Court found that the mandatory provisions of section 138 N.I. Act were not present, and the presumption of debt/liability was rebutted. Consequently, the judgments of the Trial and Appellate Courts were set aside, and the petitioner was acquitted and discharged from his bail bond. The petitioner was also permitted to withdraw the amount of Rs. 5,00,000 deposited before the trial court.

Conclusion:
The High Court allowed CRR 302 of 2020, set aside the previous judgments, acquitted the petitioner, and permitted the withdrawal of the deposited amount. All connected applications were disposed of, and interim orders vacated. A copy of the judgment was directed to be sent to the learned Trial Court for compliance.