2023 (11) TMI 458 - HC - Indian Laws

Dishonour of Cheque - acquittal of the accused - rebuttal of presumption - conviction of the accused under Section 138 of the NI Act - preponderance of probabilities - HELD THAT - It is required to be seen that whether accused has been able to probabilise his defence. Here itself it may be noted that the accused is not required to prove his defence on the standard of proof beyond reasonable doubt and rather is simply required to probabilise his defence. The presumption under Section 139 of the Act can be rebutted even by evidence led by the complainant; and it is not required for the defence to lead evidence to rebut presumption as has been held by the Hon ble Supreme Court in Shiv Kumar Vs. Ram Avtar Aggarwal 2020 (2) TMI 1584 - SUPREME COURT . In order to rebut the presumption available to complainant under Section 139 of the NI Act accused can either appear in the witness box though it is not mandatory; or he can elicit circumstances favourable to him during the cross-examination of complainant; or put forth his defence in his statement under Section 313 Cr.P.C. supported by evidence. Here itself it may be noted that statement of accused under Section 313 Cr.P.C is not a substantive piece of evidence. If accused put forth his defence in said statement he must support it with evidence - simply by taking the stand either in reply to the legal notice or in the statement under Section 313 CrPC that accused had taken loan of Rs. 55, 000/- only and that blank cheque was given as a security it cannot be stated that presumption in favour of the complainant stands rebutted or that the defence is probablized. It is no doubt true that when accused entered the witness box as DW1 he repeated this stand by way of his affidavit Ex.DW1/A to the effect that he had taken Rs. 55, 000/- on 10.11.2008 in lieu of which accused had taken his signature on blank papers and had also taken a blank signed cheque as security. However most importantly when complainant-Girraj Sharma entered the witness box as CW1 this stand was not confronted by the accused to the complainant at all - There is no suggestion that complainant had taken any blank signed cheque as security from the complainant. Despite receipt of the legal notice much prior to the filing of the complaint as evident from AD card Ex.C5 and as also candidly admitted by the accused he did not respond to the legal notice and rather gave reply much after filing of the complaint and so said factor could not have been taken into consideration. Once the signature on the cheque were admitted by the accused in so many words not only by making positive suggestion to the complainant but also in his statement under Section 313 CrPC and then in his defence evidence the existence of legal liability remained not in dispute at all in view of presumption under Section 139 of the NI Act. In the present case the aforesaid provision was not at all attracted simply because signature on the cheque was made complete by the accused by overwriting on it. It was never the case of the accused that any material alteration was made in the cheque against his consent by the complainant or anybody else. Rather he admitted his signature on the cheque in so many words at various stages of the trial as already noticed - the impugned judgment of acquittal dated 26.02.2016 as passed by ld. Appellate Court is hereby set aside; and the judgment of conviction as recorded by the trial Court on 16.01.2014 is hereby restored. Having regard to the overall conduct of the accused-respondent he does not deserve any leniency. As such the order dated 16.01.2014 qua the quantum of sentence as recorded by Ld. JMIC is also hereby restored. Respondent-accused is directed to surrender before the concerned trial Court/ld. CJM Faridabad within a period of 15 days from today failing which the concerned Court will procure his presence by taking coercive steps in accordance with law and send him to jail for carrying out the sentence. Appeal disposed off.

Summary

Issues Involved:
1. Legality of the acquittal of the accused under Section 138 of the Negotiable Instruments Act.
2. Justifiability of the condonation of delay in filing the appeal by the accused.

Summary:

1. Legality of the Acquittal:
The petitioner challenged the judgment dated 26.02.2016 by the Additional Sessions Judge, Faridabad, which acquitted the respondent from charges under Section 138 of the Negotiable Instruments Act, reversing the trial court's conviction. The complainant alleged that the accused issued a cheque for Rs. 1,75,000/- which was dishonored due to "drawer's signature incomplete." Despite receiving a legal notice, the accused failed to make payment, leading to the filing of the complaint. The trial court convicted the accused, but the appellate court acquitted him, stating that the complainant failed to prove the existence of liability and other defenses raised by the accused.

2. Justifiability of the Condonation of Delay:
The appellate court admitted the appeal without passing any order on the application for condonation of delay and released the accused on bail. The complainant argued that no opportunity was provided to contest the application for condonation of delay, and the appellate court's decision to condone the delay was unjustified.

Detailed Judgment:

Condonation of Delay:
The court found that the accused's claim that his previous counsel did not inform him about the decision was unsustainable. The accused's conduct, including absconding and failing to file the appeal within the allowed time, did not justify the delay. Hence, the order of the appellate court allowing the application for condonation of delay was reversed.

Merits of the Case:
The trial court's record showed that the cheque was issued by the accused and was dishonored due to incomplete signature. The accused admitted to issuing the cheque but claimed it was a security cheque for a loan of Rs. 55,000/-. The court observed that once the signature on the cheque is admitted, the presumption under Section 139 of the NI Act applies, which the accused failed to rebut effectively. The appellate court's reasoning, including the claim of money lending business and material alteration of the cheque, was found to be irrelevant and based on conjectures.

Restoration of Conviction and Sentence:
The court set aside the appellate court's judgment of acquittal and restored the trial court's judgment of conviction and sentence. The accused was directed to surrender within 15 days, failing which coercive steps would be taken to enforce the sentence.

Conclusion:
The impugned judgment of acquittal was set aside, and the trial court's judgment convicting and sentencing the accused was restored. The accused was directed to surrender to the trial court within 15 days.