2018 (9) TMI 1217 - HC - Indian Laws

Dishonor of Cheque due to insufficiency of funds - Section 138 of Negotiable Instruments Act - order of Acquittal - Held that - The defence is not that the cheque was issued for debt and the same was misused. Contrarily, the defence is that the cheque was issued to one Muthulingam, that was stolen by the complainant, filled up and a private complaint was lodged under Section 138 of the Negotiable Instruments Act. In the absence of a complaint to the police regarding theft of the cheque and in the absence of any evidence to show how the cheque given to Muthulingam landed in the hands of the complainant, in the absence of any evidence, which would probabilise the subject cheque was not issued to the complainant to discharge an enforceable debt, the Trial Court and the appellate Court have rightly held that Ex.D.1 is a make belief document created in connivance of D.W.2 by the accused. Though the appellate Court has decided the appeal in the absence of the counsel for the petitioner, the reason for deciding the case on perusal of the records, has been justified in the Judgment of the appellate Court and also had reasoned out why the explanation of the defence does not probablised the reverse presumption. Revision petition dismissed.

Issues:
1. Appeal dismissed in absence of counsels
2. Burden of proof on accused regarding bounced cheque
3. Legal principles regarding disposal of appeal in absence of counsels
4. Defense of stolen and misused cheque
5. Comparison with a similar case where the burden of proof was discharged

Analysis:

1. The revision petitioner challenged the dismissal of the appeal in the absence of counsels by the appellate Judge. The petitioner argued that the appellate Court erred in not affording an opportunity for defense and not considering defense exhibits that rebutted the presumption against the accused. The petitioner relied on a Supreme Court judgment to support the contention that the appeal should not have been decided in the absence of counsel.

2. The defense put forth by the accused regarding the bounced cheque involved the claim that the cheque was given to another individual, Muthulingam, and was subsequently lost. The accused presented a deed reflecting the loss of the cheque. However, both the Trial Court and the appellate Court found that the accused failed to discharge the burden of proof regarding the bounced cheque, despite examining defense witnesses and presenting evidence.

3. The legal principles regarding the disposal of an appeal in the absence of counsels were extensively discussed. The Court referred to a Supreme Court judgment emphasizing that the appellate Court is not obligated to adjourn the case if counsels are absent and can dispose of the appeal on merit after perusing the records. The Court justified the appellate Court's decision to proceed with the appeal in the absence of counsels based on the facts and circumstances of the case.

4. The defense's contention that the bounced cheque was stolen and misused by the complainant was not accepted by the Trial Court and the appellate Court. The Courts found that the accused's defense lacked credibility as there was no complaint lodged with the police regarding the theft of the cheque. The defense's explanation was deemed to be an afterthought without any substantiated evidence.

5. A comparison was drawn with a similar case where the burden of proof regarding a bounced cheque was successfully discharged by the accused. In the cited case, the accused provided evidence to support the defense that the money was borrowed from a different individual, not the complainant. The Court acquitted the accused based on the preponderance of probability. However, in the present case, the defense's explanation regarding the bounced cheque was deemed insufficient and lacking in credibility.

In conclusion, the Court found no merit in the revision petition and upheld the concurrent finding of conviction and sentence passed by the Trial Court and the appellate Court. The defense's explanation regarding the bounced cheque was not considered sufficient to rebut the presumption against the accused. The appeal was dismissed, and the connected Miscellaneous Petition was also dismissed.

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