2018 (8) TMI 1235 - HC - Indian Laws

Dishonor of cheque due to stop-payment - Section 138 of Negotiable Instruments Act - The case of the accused is that he never issued any cheques and he had no legal enforceable debt to issue cheques in favor of the complainant - rebutting of presumption under Section 138 of Negotiable Instruments Act - Held that - Once the accused rebutted the presumption under Section 138 of Negotiable Instruments Act, the complainant is liable to prove his case. The complainant failed to prove his case. Since, the cheques were returned on the request for stop payment and the said stop payment was not issued by the accused. The complainant did not prove the case as alleged by him. Further, the statutory notice Ex.P.4 was admittedly returned without serving on the accused. It is seen from the notice that the amount mentioned as 2,50,000/-, whereas the total cheque amount is 3,50,000/-. That apart, the said notice was returned for the reason no proper address, no door number and no street name . Therefore, the statutory notice was not at all sent to the proper address. This Court is of the considered opinion that the complainant did not fulfil the requirements under Section 138 of Negotiable Instruments Act. Therefore, the trial Court after considering the entire evidence and facts and circumstances of the case, has rightly acquitted the accused and the judgment passed by the the Judicial Magistrate No.I, Gobichettipalayam does not warrant any interference from this Court - Criminal appeal dismissed.

Summary

Issues:
Acquittal under Section 138 of Negotiable Instruments Act due to lack of evidence and non-compliance with statutory notice requirements.

Analysis:
The appellant/complainant alleged that the respondent borrowed a total of ?3,50,000 on two occasions and issued post-dated cheques towards repayment. However, the cheques were returned due to a stop payment request by the accused. The trial court acquitted the accused citing lack of evidence and non-fulfillment of statutory notice requirements. The appellant contended that the accused intended to cheat by issuing the cheques in question. The respondent argued that there was no relationship with the complainant and no need to borrow money, questioning the lack of proper documentation for the alleged borrowal. The court noted that the cheques belonged to a different company, not the accused, and the complainant failed to establish a connection between the accused and the said company.

The complainant's case relied on proving a connection between the accused and the cheques, which was not substantiated. The evidence showed that the cheques were from a partnership firm unrelated to the accused. The complainant's witness admitted not knowing the relationship between the accused and the company. The court emphasized that once the accused rebutted the presumption under Section 138, the burden shifted to the complainant to prove the case, which was not done effectively. The statutory notice sent was returned unserved, indicating non-compliance with legal requirements.

The court found that the complainant did not meet the statutory requirements under Section 138 of the Negotiable Instruments Act. The failure to establish a connection between the accused and the cheques, coupled with non-compliance with statutory notice provisions, led to the dismissal of the appeal. The judgment of acquittal by the trial court was upheld, as the complainant's case lacked credibility and failed to prove the essential elements of the offense. The appeal was dismissed, confirming the acquittal of the accused in the case.