2015 (3) TMI 1442 - HC - Indian Laws

Dishonour of Cheque - seeking to grant leave to prefer an appeal against the judgment of acquittal acquitting the respondent under Section 138 of the Negotiable Instruments Act - invocation of presumption under Section 118 and 139 of the Negotiable Instruments Act - onus to prove the nature of cheque - cheque issued for discharge of legally subsisting liability or not - HELD THAT - A bare perusal of the entire documents would show that the amount of Rs. 50,000/- was paid by the petitioner to the respondent by way of Ex.D.1/Cheque dated 29.12.2006, which is also evidenced by Ex.D.2/Bank statement of the Complainant. The respondent by examining the witnesses D.W.1/Manoharan, D.W.2/Sengutuvan and the respondent himself deposing as D.W.3 and marking Ex.D.1 to Ex.D6 has rebutted the presumption. So, now the onus is shifted to the petitioner to prove that the cheque has been issued for discharging the legally subsisting liability. Even though the petitioner herein in his complaint has stated that the respondent had borrowed the money in the month of October 2006, he has not filed any scrap of papers to prove that he had lent the amount to the respondent and his capacity to lend such amount. Further, the petitioner who was examined as P.W.1 had deposed in his cross-examination that he is an Income Tax assessee, however he has not mentioned the amount alleged to have lent to the respondent in his IT returns. The Trial Court has rightly held that the respondent has rebutted the presumption under Section 139 of the Negotiable Instruments Act. When the onus is shifted to the petitioner to prove that the cheque was issued for discharging the legally subsisting liability, the petitioner did not prove the same. Hence, there is no reason for granting leave to prefer an appeal against the acquittal. The Criminal Original Petition is dismissed.

Summary

Issues:
1. Granting leave to prefer an appeal against the judgment of acquittal under Section 138 of the Negotiable Instruments Act.

Detailed Analysis:
The Criminal Original Petition was filed seeking permission to appeal against the acquittal of the respondent under Section 138 of the Negotiable Instruments Act. The petitioner contended that the respondent admitted issuing the cheque but claimed it was for a different purpose, contrary to the presumption under Section 139 of the Act. The petitioner argued that the cheque was issued as security for a loan, which was later repaid, leading to a dispute over interest and the subsequent complaint. The petitioner sought leave to appeal based on these grounds.

The petitioner alleged that the respondent borrowed a sum of Rs. 2,00,000 and issued a cheque for Rs. 3,21,327, which bounced due to insufficient funds. The petitioner served a notice under Section 138(b) of the Act, but the respondent did not respond or repay the amount, resulting in the complaint. The Trial Court noted that the respondent rebutted the presumption under Section 139 by presenting evidence and witness testimonies to support their claim that the cheque was not issued for the alleged debt but as a security for a different transaction.

Upon review, it was found that the petitioner failed to provide evidence supporting the alleged loan transaction, such as documentation or proof of capacity to lend the amount claimed. Additionally, inconsistencies were noted, as the petitioner, during cross-examination, did not disclose the alleged loan in his income tax returns despite claiming to be an Income Tax assessee. The Trial Court concluded that the respondent successfully rebutted the presumption under Section 139, shifting the burden of proof to the petitioner, who failed to establish the cheque was issued to discharge a legally subsisting liability.

Based on the above considerations, the Court held that there was no valid reason to grant leave to appeal against the acquittal. Consequently, the Criminal Original Petition was dismissed, upholding the Trial Court's decision.