2017 (10) TMI 665 - HC - Indian Laws

Conviction for the offence u/s 138 of the Negotiable Instruments Act - nature of offence - Held that - The notice intimated to the petitioner about the dishonour of the cheques and his duty to discharge the loan which was taken by him from the complainant. The issuance of cheques by the petitioner in favour of the opposite party no. 2 is an admitted fact. Therefore, it was a burden upon the petitioner to prove that the cheques were misused or that he had paid the amount. The petitioner failed to prove either and, therefore, presumption has to be drawn against the petitioner. The witnesses have categorically stated about the taking of friendly loan from the complainant by the petitioner for which five cheques were given and which got dishonoured due to insufficiency of founds. On such admitted facts the issue raised by the petitioner with respect to instituting a separate case appears to be hyper technical and a ploy to thwart the complainant from getting the legitimate claim. The complainant has been able to prove his case beyond all reasonable doubts and, therefore, the learned trial court had rightly convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act which was subsequently affirmed in appeal. There being no reasons to conclude otherwise the judgment of conviction passed by the learned trial court and upheld by the learned appellate court is, hereby, sustained. So far as the sentence imposed upon the petitioner is concerned, it seems that he has remained in custody for more than six months. Therefore, there is no question of reduction in the sentence of imprisonment imposed upon the petitioner.

Summary

Issues:
Petitioner convicted under Section 138 of the Negotiable Instruments Act - Appeal against conviction and sentence - Legality of legal notice - Separate cause of action for dishonour of multiple cheques.

Analysis:
The judgment pertains to an appeal against the conviction and sentence of the petitioner under Section 138 of the Negotiable Instruments Act. The petitioner had taken a friendly loan of ?1,00,000 and issued five post-dated cheques of ?20,000 each in return. However, all the cheques were dishonored due to insufficient funds, leading to a legal complaint and subsequent trial. The prosecution presented four witnesses, including the complainant, who testified to the loan, issuance of cheques, dishonor, and legal notice sent to the petitioner. The defense argued that separate causes of action arise for each dishonored cheque and that the legal notice was flawed for not mentioning the cheque numbers, thus seeking acquittal for non-compliance with the Act's provisions.

The Court considered the arguments and evidence, noting that the legal notice was sent within the statutory period, informing the petitioner of the dishonor and his obligation to repay the loan. The petitioner's issuance of cheques was undisputed, shifting the burden to prove misuse or payment to the petitioner, which he failed to do. The witnesses' testimonies corroborated the loan, cheques, and dishonor, dismissing the petitioner's technical objection of separate causes of action as a ploy to evade liability. The Court found the complainant had proven the case beyond reasonable doubt, upholding the trial court's conviction and sentence, which was affirmed on appeal.

Consequently, the Court dismissed the appeal, affirming the conviction and sentence under Section 138 of the Negotiable Instruments Act. Given the petitioner's custody exceeding six months, no reduction in the sentence was warranted. The judgment emphasized the importance of complying with legal obligations, rejecting attempts to evade liability through technicalities and affirming the lower courts' decisions based on the evidence presented.