2024 (6) TMI 995 - HC - Indian Laws

Dishonour of Cheque - acquittal of accused - rebuttal of presumption under Sections 118 and 139 of the Negotiable Instruments Act - HELD THAT - The accused had not denied her signature on the cheque (Ex.P1). Once the signature is admitted there is a presumption under Sections 118 and 139 of the Negotiable Instruments Act unless the contrary is proved. The trial court judge had infact analysed this aspect and had convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. It is seen from the records that the complainant examined himself as P.W.1 on 16.02.2015 and the accused cross examined P.W.1 only on 07.10.2015. In the meantime, the accused was also questioned under Section 313 Cr.P.C. Therefore, the complainant, in the absence of a specific averment in the reply notice with regard to his financial capacity cannot be expected to prove his means at the fag end of the trial. The trial court Judge had analysed all the documents threadbare and had come to the conclusion that the accused is guilty of the offence punishable under Section 138 of NI Act. On the other hand the appellate court judge, even without a specific plea by the accused that the complainant did not have sufficient means to lend a sum of Rs.4,00,000/- to her, had rendered a finding that the complainant was not possessed of sufficient means. The other aspects of the case have not at all been properly analysed by the appellate court Judge and therefore the judgment and orders passed by the appellate court is liable to be set aside. The judgment and orders passed by the appellate court judge is set aside and the judgment and orders passed by the trial court judge is restored. The conviction and sentence passed by the trial court judge against the accused is hereby confirmed. Appeal allowed.

Summary

Issues involved: Appeal against acquittal under Section 138 of the Negotiable Instruments Act.

Summary:
The appellant filed a criminal appeal challenging the order of acquittal passed by the II Additional Sessions Judge, Erode. The case revolved around the issuance of a cheque by the accused, borrowing a sum of Rs.4,00,000 from the complainant for business expenses. The cheque was dishonored, leading to a legal dispute under Section 138 of the Negotiable Instruments Act.

Complainant's Case:
The complainant presented evidence including the cheque, return memo, statutory notice, and postal acknowledgment. The trial court convicted the accused, sentencing her to imprisonment and compensation. The accused appealed, and the appellate court acquitted her citing lack of proof of the complainant's financial means and absence of Income Tax Returns.

Appellant's Argument:
The appellant contended that the burden of proof was wrongly placed on the complainant, emphasizing the presumption under Sections 118 and 139 of the NI Act. Reference was made to a legal precedent supporting the presumption of consideration for negotiable instruments unless proven otherwise.

Respondent's Defense:
The respondent argued that the complainant needed to prove lending the amount and financial capability. Allegations were made that the cheques were handed over for malicious purposes. The appellate court's analysis was deemed sufficient, and dismissal of the appeal was sought.

Judgment:
The court noted that the accused did not deny the signature on the cheque, triggering the legal presumption under the NI Act. The complainant's financial capacity was not questioned in the reply notice, and the burden of proof was on the accused to rebut the presumption. The court referenced legal principles emphasizing the presumption under Sections 118 and 139.

Decision and Conclusion:
The court found discrepancies in the accused's defense, highlighting false complaints and lack of explanation regarding the cheques. The appeal was allowed, setting aside the acquittal and confirming the trial court's conviction and sentence. The accused was directed to surrender within 15 days to serve the remaining sentence.