2023 (10) TMI 1099 - HC - Indian Laws

Dishonour of Cheque - discharge of existing debt/liability - it is the case of the petitioner that the learned trial Court has wrongly drawn the presumption under Section 118 of the N.I. Act, against the accused, without any evidence on record - HELD THAT - Firstly, coming to the fact that complainant by examining CW-1 has proved the demand promissory note Ext. CW-1/D, in which, it has been mentioned that Rs. 1,60,000/-has been obtained by accused Dinesh Kumar. The said amount was received vide Cheque Nos. 113001 and 113002 dated 22.09.2015. Ext. CW-1/F is the agreement for loan. The cheque is Ext. CW-1/G, which was issued on 10.06.2016 for a sum of Rs. 1,46,400/-in favour of the complainant. The said cheque was not encashed and the same was returned back vide memo Ext. CW-1/J. Reason for non-encashment, as has been mentioned in the memo, is that the person, who has issued the cheque, was not having the sufficient balance, in his account. The same address has been mentioned in the complaint. The accused has been served on the said address, as depicted in the summons issued against the accused. Moreover, the accused has not disputed the said address. Even otherwise, for the sake of argument, if this notice was not received by him, no efforts have been made by the accused to make the payment of the cheque on the first available opportunity, when, he had appeared before the learned trial Court. In such situation, the said argument is not liable to be accepted - the learned trial Court has rightly held that the presumption under Section 118 of the N.I. Act has rightly been drawn in favour of the complainant. So far as the argument of learned counsel for the petitioner-accused qua the fact that in the document Ext. DW-4/A, the date of payment of a sum of Rs. 60,000/-is 22.09.2015, which is contrary to the document Ext. CW-1/D, is concerned, when in the document Ext. CW-1/F, which is agreement for loan, the total amount, which has been paid as loan is Rs. 1,60,000/-, then, the variation, which has been highlighted, is inconsequential. From this evidence, the petitioner could not rebut the presumption under Section 118 of the N.I. Act in favour of the holder of the cheque, in due course. This Court is not inclined to interfere with the findings given by the learned trial Court, which have been affirmed by the learned Appellate Court - this Court finds no merit in the revision petition - revision petition dismissed.

Summary

Issues Involved:
1. Validity of the judgment of conviction and order of sentence under Section 138 of the Negotiable Instruments Act.
2. Whether the presumption under Section 118 of the N.I. Act was rightly drawn.
3. Adequacy of evidence to substantiate the charges against the accused.
4. Consideration of the accused's defense and rebuttal of the presumption.

Summary:

1. Validity of the Judgment of Conviction and Order of Sentence:
The petitioner, Dinesh Kumar, filed a revision petition under Section 401 read with Section 482 of the Cr.P.C. against the judgment dated 01.12.2022 by the learned Sessions Judge, which dismissed his appeal against the conviction and sentence by the learned Additional Chief Judicial Magistrate. The trial court had convicted the petitioner under Section 138 of the N.I. Act, sentencing him to six months of simple imprisonment and a compensation of Rs. 2,00,000.

2. Presumption under Section 118 of the N.I. Act:
The petitioner argued that the trial court wrongly drew the presumption under Section 118 of the N.I. Act without sufficient evidence. However, the court noted that the complainant had proven the issuance of the cheque and its subsequent dishonor due to "insufficient funds." The legal notice was served, and no payment was made by the accused, leading to the filing of the complaint. The trial court's presumption under Section 118 was deemed appropriate based on the evidence presented.

3. Adequacy of Evidence:
The complainant, Golf Link Finance and Resorts Private Limited, provided evidence including the loan agreement, the dishonored cheque, and the legal notice. The trial court found a prima facie case and summoned the accused. The complainant's witness, CW-1, substantiated the charges, while the accused's defense, including testimonies from four defense witnesses (DWs), failed to rebut the evidence effectively.

4. Consideration of the Accused's Defense:
The accused contended that only Rs. 60,000 was advanced initially, with an additional Rs. 1,00,000 disbursed later, contradicting the complainant's claim of a total loan of Rs. 1,60,000 on 22.09.2015. However, the court found the documentary evidence (Ext. CW-1/D and Ext. CW-1/F) credible, indicating the loan amount and the issuance of the cheque for part payment. The accused's defense, including claims of partial repayment and discrepancies in dates, did not sufficiently rebut the presumption under Section 118.

Conclusion:
The court dismissed the revision petition, upholding the trial court's judgment of conviction and order of sentence, as well as the first appellate court's affirmation. The evidence presented by the complainant was deemed adequate, and the accused's defense failed to probabilize his case on the preponderance of probabilities. The presumption under Section 118 of the N.I. Act was rightly drawn in favor of the complainant.