2018 (8) TMI 1406 - HC - Indian Laws

Dishonor of cheque - Section 138 of the Negotiable of Instrument Act - The only contention of the respondent/accused was that the respondent has paid the cheque amount to the complainant - Held that - The provision of Section 139 of the Negotiable Instrument Act, provides for presumption clause, but this presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability and that is a rebuttable presumption - It would be appropriate to mention here that the respondent accused did not disclose that he has paid the amount in his reply to the notice issued to the respondent under Section 138 of the Negotiable Instrument Act. It would also be appropriate to mention that virtually no such reply has been filed by the respondent-accused. He has not asked any single question to the complainant, at the time of his cross-examining regarding Ex.D/2, nor he confronted the same. In the present case, there is no supportive evidence and when the accused/respondent did not disclose document Ex.D/2 till the same was filed at the defence stage. No reasonable explanation was offered to explain why the document was not produced or pleaded earlier. It would be unsafe to exercise the power of discretion in favour of the respondent-accused, whereas the hand writing expert examined by the complainant has clearly indicated and opined that Ex.D-2 receipt do not contain the signature of the complainant. It would be appropriate to hold that learned appellate Court has fallen in error to hold that Ex-D/2 receipt has been issued by or executed by the complainant - The judgment and sentence passed by learned J.M.F.C., Jabalpur is restored with the modification that the complainant-applicant is entitled for compensation of (Rs.1,50,000/- x 9% x 14 years ₹ 1,89,000/- 1,50,000/-) ₹ 3,39,000/- under Section 357 of Cr.P.C. Revision allowed.

Summary

Issues:
1. Interpretation of evidence in a case involving a cheque dishonour under Section 138 of the Negotiable Instrument Act.
2. Assessment of the role of hand writing expert opinions in determining authenticity.
3. Application of Section 139 of the Negotiable Instrument Act regarding the presumption of a legally enforceable debt.
4. Evaluation of the appellate court's discretion in accepting evidence and reaching a conclusion.

Analysis:
1. The case involved a complaint under Section 138 of the Negotiable Instrument Act regarding a dishonoured cheque. The complainant alleged that the respondent-accused issued a cheque that was dishonoured, leading to a criminal complaint. Initially, the complaint was dismissed for lack of evidence, but after further proceedings, the respondent was convicted and ordered to pay compensation.

2. The appellate court considered the evidence, including a receipt presented by the respondent as proof of repayment. The complainant disputed the authenticity of the receipt, highlighting discrepancies in signatures. The court analyzed the conflicting opinions of hand writing experts, emphasizing the frail nature of such evidence and the need for caution in relying solely on expert opinions.

3. Section 139 of the Negotiable Instrument Act provides for a presumption of a legally enforceable debt in cheque dishonour cases. The court noted that the respondent did not disclose repayment in earlier statements, creating doubts about the authenticity of the receipt. The respondent's failure to confront the document during cross-examination raised questions about its genuineness.

4. The judgment highlighted the appellate court's error in accepting the receipt as genuine without sufficient evidence. The court emphasized the need for concrete proof and proper disclosure by the parties involved. Ultimately, the original judgment was restored, with the complainant being entitled to increased compensation based on the prescribed formula under Section 357 of the Cr.P.C.

This detailed analysis of the judgment showcases the legal intricacies involved in interpreting evidence, assessing expert opinions, applying statutory presumptions, and scrutinizing the appellate court's discretion in reaching a just conclusion.