2019 (11) TMI 370 - HC - Indian Laws

Dishonor of cheque - alleged procurement of cheque by coercion - offence punishable under Section 138 of Negotiable Instruments Act - rebuttal of Statutory presumption - HELD THAT - In the case at hand, probable defence with regard to procurement of cheque by creating Police pressure appears to have been taken very casually because, if statement of the accused recorded under S.313 CrPC is read in its entirety, it is/was none of the case of the accused that he issued cheque under Police pressure, but even if such defence is tested on the touchstone of the evidence led on record by respective parties, same deserves outright rejection. In the case at hand, careful perusal of the complaint filed by complainant under S.138 clearly suggests that she set up a case that she paid ₹ 2.00 Lakh to Brahmi Devi in lieu of agreement to sell but when she failed to execute the sale deed, affidavits came to be sworn in by Brahmi Devi, Pawan Kumar and Ram Rattan, to the effect that they would pay ₹ 2.00 Lakh to the complainant. No suggestion worth the name ever came to be put to the complainant in her cross-examination that the cheque was issued under the pressure of the Police and accused had never executed affidavit undertaking therein to pay sum of ₹ 2.00 Lakh. In the case at hand, accused has not been able to rebut the statutory presumption under Ss.118 and 139 of the Act in favour of holder of cheque i.e. complainant and as such, there appears to be no illegality or infirmity in the judgments/order of conviction and sentence passed by learned Courts below. All the ingredients of S.138 of the Act stand duly proved in the case at hand, as such, this Court finds no occasion to interfere with the judgments/order of conviction and sentence recorded by learned Courts below, as such, same deserve to be upheld. The petition at hand is dismissed being devoid of merit.

Issues Involved:
1. Validity of the conviction and sentence under Section 138 of the Negotiable Instruments Act.
2. Adequacy of evidence presented by the complainant.
3. Defense raised by the accused regarding the issuance of the cheque.
4. Application of presumptions under Sections 118A and 139 of the Negotiable Instruments Act.
5. Financial capacity of the complainant to lend money.

Issue-wise Detailed Analysis:

1. Validity of the Conviction and Sentence under Section 138 of the Negotiable Instruments Act:
The court upheld the conviction and sentence of the accused, who was found guilty of committing an offense under Section 138 of the Negotiable Instruments Act. The trial court sentenced the accused to one year of simple imprisonment and ordered the payment of ?2.00 lakh as compensation to the complainant. The Sessions Judge affirmed this judgment, and the High Court found no illegality or infirmity in the decisions of the lower courts.

2. Adequacy of Evidence Presented by the Complainant:
The complainant successfully proved the issuance of the cheque by the accused and its subsequent dishonor due to insufficient funds. The evidence included the original cheque, bank memos, legal notice, postal receipts, and affidavits from involved parties. The complainant's testimony was corroborated by bank officials and a notary public, establishing the complainant's case beyond reasonable doubt.

3. Defense Raised by the Accused Regarding the Issuance of the Cheque:
The accused denied the allegations but failed to provide any evidence to support his defense. He claimed the cheque was issued under police pressure, but there was no cogent evidence to substantiate this claim. The accused admitted to executing an affidavit agreeing to pay ?2.00 lakh but did not convincingly rebut the presumption that the cheque was issued for a lawful liability.

4. Application of Presumptions under Sections 118A and 139 of the Negotiable Instruments Act:
The court emphasized that the presumptions under Sections 118A and 139 are rebuttable but require substantial evidence to do so. The accused failed to raise a probable defense or provide sufficient evidence to rebut the presumption that the cheque was issued for the discharge of a debt or liability. The court referenced the Supreme Court's judgment in Hiten P. Dalal v. Bartender Nath Bannerji, which clarified that mere plausible explanations are insufficient to rebut these presumptions.

5. Financial Capacity of the Complainant to Lend Money:
The accused's argument regarding the complainant's financial capacity was not substantiated with evidence. The court noted that the complainant's capacity to lend money was not effectively challenged during the trial. The High Court referenced the Supreme Court's judgment in Basalingappa vs. Mudibasappa, which states that once the execution of the cheque is admitted, the presumption under Section 139 applies, and the burden shifts to the accused to prove the contrary.

Conclusion:
The High Court found no reason to interfere with the judgments of the lower courts, as the evidence presented by the complainant was sufficient to prove the case under Section 138 of the Negotiable Instruments Act. The accused failed to rebut the statutory presumptions or provide a credible defense. Consequently, the petition was dismissed, and the judgments of conviction and sentence were upheld. The accused was directed to surrender before the trial court to serve the sentence.

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