2020 (8) TMI 374 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - rebuttal of presumption - offence punishable u/s 138 of the N.I. Act or not - Service of notice - Whether the Judgment of conviction and Order on sentence under revision deserves interference at the hands of this Court? - HELD THAT - In the instant case, the accused as DW-1 while taking such a vague contention has not produced any corroborative evidence to prove his contention. On the contrary, the very same accused in his cross-examination has stated that as a builder, he develops land for which he raises loans from banks and several individuals. Thus, he has shown that he is a regular borrower not just from the father of the complainant but from banks and other individuals also. Further in the very same cross-examination, when he was confronted with the cheque which was marked at Ex.P4, he has admitted that the said cheque pertains to him and admitted a suggestion as true that the amount mentioned in the cheque is in his hand-writing - With these admissions and the statements made by DW-1 in his cross-examination coupled with evidence of PW-1 and DW-2 it clearly goes to show that the complainant both by his oral and documentary evidence has clearly established that the cheque in question was issued to him by the accused towards the repayment of the loan amount which is said to have been taken by the accused, from him. Merely because the complainant has not produced his bank passbook or statement, by that itself, it cannot be suspected that there was no such loan transaction. The oral and documentary evidence led by the complainant and the admissions made by the accused in his cross-examination and also the non denying of the submissions of PW-1 in his cross- examination would clearly go to establish that the accused had availed a loan of ₹ 9,35,000/- from the complainant and towards the repayment of the same, he had issued the cheque marked at Ex.P4. Thus, apart from a mere legal presumption under S.139 of N.I. Act, the complainant's evidence further crystalises the said presumption and proves it to be a fact. Service of notice - HELD THAT - The notice sent under certificate of posting can also be deemed as having been delivered to the addressee / accused. Thus, even after service of such a notice, the accused has not responded to the same in any manner. Therefore it clearly goes to show, that the accused had issued a cheque in favour of the complainant towards the repayment of the legally enforceable debt and the said cheque was dishonoured when presented for encashment, with the reason 'funds insufficient'. The defence taken by the accused that the loan transaction was with the father of the complainant but not with the complainant since has remained not proved, the Courts below have rightly held that the complainant has proved the alleged guilt against the accused which is punishable under S.138 of the N.I. Act. The quantum of sentence ordered also being proportionate to the gravity of the proven guilt, there are no ground to interfere with the impugned Judgment of conviction and Order on sentence - revision petition dismissed.

Summary

Issues involved:
1. Whether the accused committed an offence under Section 138 of the Negotiable Instruments Act, 1881?
2. Whether the Judgment of conviction and Order on sentence deserve interference by the Court?

Analysis:

Issue 1:
The complainant alleged that the accused borrowed a sum and issued a cheque, which was dishonored, leading to the complaint. The Trial Court convicted the accused under Section 138 of the N.I. Act. The accused argued that the financial transaction was with the complainant's father, not the complainant. The accused presented DW-2, the father, who admitted the financial transaction but denied the misuse of the cheque. The accused failed to produce evidence supporting his claim. The Court found that the accused had availed a loan and issued a cheque towards repayment, supported by the complainant's evidence and the accused's admissions. The Court upheld the conviction, stating the complainant proved the guilt under Section 138.

Issue 2:
The accused appealed the conviction, arguing against the evidence presented. The Sessions Court dismissed the appeal, upholding the Trial Court's decision. The accused contended that the loan transaction was with the father, not the complainant, but failed to provide substantial evidence. The Court found the complainant's evidence, coupled with the accused's admissions, established the loan transaction and dishonor of the cheque. The Court noted the legal presumption under Section 139 of the N.I. Act favored the complainant. The Court held that the accused's defense lacked proof, and the lower courts rightly convicted him. The Court found no grounds to interfere with the Judgment of conviction and Order on sentence, dismissing the revision petition.

This detailed analysis of the legal judgment highlights the key arguments, evidence, and reasoning behind the Court's decision, providing a comprehensive understanding of the case.