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2024 (8) TMI 1390 - HC - Indian LawsDishonour of Cheque - existence of legally payable debut supporting the cheque or not - main contention of the revisionist is that the Revisionists has claimed that only a sum of Rs. 1, 03, 660/- had been paid by the complainant while the cheque amount has been claimed to be Rs. 2, 40, 000/- which was taken by the Complainant under duress - HELD THAT - In M/S. KUMAR EXPORTS VERSUS M/S. SHARMA CARPETS 2008 (12) TMI 682 - SUPREME COURT the Apex Court had observed that the accused in a trial under Section 138 of the Act has two options viz. either to prove that the consideration/debt did not exist or that under the facts and circumstances of the case the non-existence of consideration and debt was so probable that no prudent person would suppose that there was a consideration or the debt that existed. Similar observations had been made in MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA ANR. 2006 (7) TMI 576 - SUPREME COURT wherein the Apex Court had observed that the standard of proof is preponderance of probabilities and such an inference can be drawn not only from the material on record but also with reference to the circumstances upon which the parties reply. The standard of reasonability is that of a prudent man. Before this Court as well the Revisionists have not been able to agitate any ground creating a doubt in the case of the complainant about the manner in which the cheque had been issued by the Revisionists in discharge of their existing liability. It would not be out of place to observe that admittedly the cost of tour per person was Rs. 1, 20, 000/- which explains why Rs. 2, 40, 000/- were paid to the Revisionists in respect of which the cheque was issued on account of the tour having been cancelled - the Ld. MM and Ld. ASJ have rightly observed that the Revisionist failed to rebut the presumption under Section 139 and held that the cheque had been duly issued by Bhavna Chopra for and on behalf of the Revisionist Firm in discharge of the Legal Liability. The second aspect agitated by the Revisionists is that Amit Chopra had no concern with the cheque in question. However it is not in dispute that M/s A B Tour Travels was a partnership Firm of which both the Revisionists were partners. The cheque had been issued by Bhavna Chopra as one of the partners of the Firm; the liability being of the Firm - Since the cheque was issued for and on behalf of the Firm of which both the Revisionists are admittedly the partners Amit Chopra cannot avoid his liability. The third ground on which the impugned judgment has been challenged is that no valid Cheque Return Memo has been produced by the complainant. The perusal of the record shows that the cheque in question Ex.CW1/A dated 13.03.2014 got deposited in ICICI Bank by pay-in slip dated 11.06.2014 Ex.CW1/B. The cheque got rejected vide Rejection Memo Ex.CW1/C. It is correct that the said Rejection Memo neither mentions the cheque number nor the date but it bears the stamp of the ICICI Bank. It is but natural that if the cheque got deposited on 11.06.2014 the dishonour had to be subsequent to it. The fourth aspect agitated on behalf of the Revisionists is that in the absence of the date of service of Legal Notice it cannot be said that the complaint has been filed within the time frame as provided under Section 138 N.I Act. Thus it is held that there is no jurisdictional error in the judgment of the learned ASJ in upholding the conviction of the Revisionist under Section 138 of N.I. Act. Learned ASJ has already taken a lenient view by reducing the compensation amount to Rs. 4 lakhs and sentencing them to only a default sentence of three months in case of payment of compensation not been made within one month. There is no merit in the present Revision which is hereby dismissed.
Issues Involved:
1. Validity of the conviction under Section 138 of the Negotiable Instruments Act, 1881. 2. Legitimacy of the cheque issued by the Revisionist. 3. Involvement and liability of Amit Chopra. 4. Validity of the Cheque Return Memo and Legal Notice. 5. Timeliness of the complaint filing under Section 138 N.I. Act. Issue-Wise Detailed Analysis: 1. Validity of the conviction under Section 138 of the Negotiable Instruments Act, 1881: The Revisionist was convicted for the offence under Section 138 N.I. Act and sentenced to Simple Imprisonment for two months and to pay a compensation of Rs. 4,80,000/-, which was upheld by the learned ASJ with a modification of the compensation amount to Rs. 4,00,000/-. The Revisionist argued that the impugned conviction and sentence were bad in law and facts, claiming that the complainant had not approached the Court with clean hands and had coerced the Revisionist into issuing the cheque. 2. Legitimacy of the cheque issued by the Revisionist: The Revisionist admitted that a Tour package for Australia was booked for the complainant, but only a sum of Rs. 1,03,660/- was paid. The Revisionist claimed that the complainant took a blank cheque under duress and filled it with Rs. 2,40,000/-. The learned M.M. did not find the Revisionist's defense convincing, noting the lack of evidence to support the claim that the cheque was taken under duress. The Court observed that the cheque was issued in discharge of a legal liability, as the Revisionist failed to rebut the presumption under Section 139 N.I. Act. 3. Involvement and liability of Amit Chopra: The Revisionist argued that Amit Chopra had no concern with the cheque in question. However, it was established that M/s A & B Tour & Travels was a partnership firm of which both Revisionists were partners. The cheque issued by Bhavna Chopra was binding on the other partner, Amit Chopra, who could not avoid liability under the cheque issued on behalf of the firm. The judgments relied upon by the Revisionists were not applicable to the present facts. 4. Validity of the Cheque Return Memo and Legal Notice: The Revisionist contended that no valid Cheque Return Memo was produced by the complainant. The Court found that the cheque was deposited and subsequently dishonored, with the Rejection Memo bearing the stamp of the ICICI Bank. The Legal Notice was duly served, and even if it was not received, the filing of the Complaint under Section 138 N.I. Act was considered sufficient notice. The Court referred to the case of C.C. Alavi Haji vs. Palapetty Muhammed, which supported this view. 5. Timeliness of the complaint filing under Section 138 N.I. Act: The Revisionist argued that the complaint was not filed within the time frame provided under Section 138 N.I. Act. The Court noted that the Legal Notice was dispatched on 09.07.2014, and the complaint was filed on 07.08.2014, within the one-month period. There was no evidence to show that the complaint was filed beyond the period of limitation. Conclusion: The Court concluded that there was no jurisdictional error in the judgment of the learned ASJ in upholding the conviction of the Revisionist under Section 138 N.I. Act. The learned ASJ had already taken a lenient view by reducing the compensation amount to Rs. 4 lakhs and sentencing the Revisionists to a default sentence of three months in case of non-payment of compensation. The present Revision was dismissed, and one month's time was given to the Revisionists to pay the compensation, failing which the learned M.M. would execute the sentence in accordance with the law. The Revision Petition was disposed of along with the pending applications, and a copy of the Order was sent to the Court of Ld. M.M. for compliance.
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