2015 (9) TMI 1068 - HC - Indian Laws

Offence under Section 138 of the Negotiable Instruments Act - Dishonor of cheque due to insufficient funds - Held that - Once the issuance of the cheque has been admitted, the appellant/complainant is entitled to invoke presumption under Section 118 and 139 of the Negotiable Instruments Act that the cheque has been issued for discharging the legally subsisting liability. The said presumption is a rebuttable one and so, the burden is upon the respondent/accused to prove that the cheque was not issued for discharging the legally subsisting liability but only as a security. Whether the respondent has rebutted the presumption - Held that - It is admitted that the respondent has borrowed ₹ 35 lakhs and that amount was also shown in the Income Tax returns. Further, when a suggestion was posted to the appellant that at the time of borrowal of money, blank cheques were issued which was subsequently filled up and complaint has been filed was denied by him. - respondent herein has not rebutted the presumption invoked under Section 139 of the Negotiable Instruments Act. Further, he has not probabilised his defence. Hence, the onus does not shift to the complainant. Hence, I am of the view that the cheque has been issued for discharging the legally enforceable debt. When the cheque was presented for encashment, it was returned as insufficient funds on 11.09.2002. Hence, statutory notice has been issued to the respondent on 14.09.2002. However, the same was returned as could be evidenced by the return cover and postal receipt. Since the respondent/accused neither repaid the amount nor sent any reply, the appellant herein had preferred a complaint. In such circumstances, I am of the view that the appellant herein has proved the guilt of the accused under Section 138 of the Negotiable Instruments Act. The respondent/accused is convicted for the offence under Section 138 of the Negotiable Instruments Act.

Summary

Issues Involved:
1. Issuance of cheques for discharging legally subsisting liability.
2. Rebuttal of presumption under Sections 118 and 139 of the Negotiable Instruments Act.
3. Legality of money lending business without a license.
4. Consideration of income tax returns in proving the loan transaction.

Issue-Wise Detailed Analysis:

1. Issuance of Cheques for Discharging Legally Subsisting Liability:
The appellant filed complaints under Section 138 of the Negotiable Instruments Act, claiming that the respondent issued cheques to discharge a loan liability. The cheques were dishonored due to "insufficient funds," and statutory notices were issued but returned undelivered. The trial court acquitted the respondent, stating that the appellant did not prove the cheques were issued for discharging a legally subsisting liability.

2. Rebuttal of Presumption Under Sections 118 and 139 of the Negotiable Instruments Act:
The appellant argued that once the issuance of the cheques was admitted, the presumption under Sections 118 and 139 should apply, which the respondent failed to rebut. The trial court erroneously shifted the burden to the appellant to prove the cheques were for discharging a legally subsisting liability. The respondent neither replied to the statutory notice nor provided any evidence to rebut the presumption. The appellant relied on several precedents, including Rangappa v. Sri Mohan, which emphasized that mere denial is insufficient to rebut the presumption.

3. Legality of Money Lending Business Without a License:
The trial court held that the appellant's money lending business without a license was illegal, affecting the credibility of the loan transaction. However, the higher court clarified that the lack of a money lending license should not be a ground for acquittal under Section 138. If the appellant conducted money lending without a license, it should be prosecuted separately and not influence the current case's outcome.

4. Consideration of Income Tax Returns in Proving the Loan Transaction:
The trial court noted that the loan was not shown in the liability column of the appellant's income tax returns, questioning the transaction's legitimacy. The appellant clarified that the loan amount was listed in the assets column, not the liabilities. The higher court found this explanation reasonable and criticized the trial court for not considering it properly. The appellant's income tax documents, produced under Section 91 Cr.P.C., indicated the loan amount in the assets column, supporting the transaction's legitimacy.

Conclusion:
The higher court concluded that the trial court failed to apply the presumption under Sections 118 and 139 correctly, as the respondent did not provide any evidence to rebut it. The trial court's focus on the legality of the money lending business and the misinterpretation of the income tax returns were found to be material irregularities. Hence, the judgment of acquittal was set aside, and the respondent was convicted under Section 138 of the Negotiable Instruments Act. The matter was posted for questioning of the sentence on a subsequent date.