2020 (9) TMI 593 - HC - Indian Laws

Criminal revision petition - Dishonor of Cheque - petitioner /accused preferred this Criminal Revision Case on the grounds that the trial Court and the appellate Court have not appreciated the evidence properly - offence under Section 138 of the Negotiable Instruments Act - HELD THAT - The scope of Criminal Revision under Section 397 r/w 401 CrPC is very limited and this Court cannot re-appreciate the evidence, unless and until there is a illegality, perversity or impropriety in the findings of the trial Court and the appellate Court. Admittedly, this petitioner / accused was having certain business transactions with the first respondent/complainant. Taking advantage of the same, on 25.03.2012, the petitioner received a sum of ₹ 4 lakhs from the respondent/complainant, by issuing a cheque that he can collect the said amount by depositing the cheque on the next day i.e.,on 26.03.2012.Accordingly, the respondent/ complainant has also deposited the cheque on 26.03.2012, but it was returned for insufficient funds. Immediately, the complainant also issued a legal notice on 04.04.2012 to the petitioner and it was also acknowledged by him on 09.04.2012, but this petitioner/accused neither sent any reply to the notice within the statutory period nor paid the money. However, he sent a reply only on 08.06.2012 with certain allegations, even then, he did not make any attempt to substantiate the same before the trial Court. The respondent /complainant has also produced his Bank Account Statement as Ex.P6 to show that as on the date of borrowal, he was having ₹ 14,29,506.16/- in his account, by which, he has established that he has sufficient sources of money and admittedly he is also a business man, having business establishment on selling some construction materials. Therefore, it cannot be stated that the petitioner would not have sufficient money of ₹ 4 lakhs on a Sunday in his house. In this case, the petitioner has not denied that the cheque ExP1 and the signature found therein are not that of him. The courts below, considering the available evidence, has also rightly rejected the case of the petitioner and found him guilty and convicted. The reasons assigned by the petitioner in support of the petition are not sustainable. Criminal Revision Case is dismissed.

Summary

Issues Involved:
1. Legally enforceable debt under Section 138 of the Negotiable Instruments Act.
2. Validity of the cheque and its issuance.
3. Misuse of blank cheques.
4. Statutory notice and its compliance.
5. Evidence and burden of proof.
6. Scope of Criminal Revision under Section 397 r/w 401 CrPC.

Detailed Analysis:

1. Legally Enforceable Debt under Section 138 of the Negotiable Instruments Act:
The primary issue revolves around whether there was a legally enforceable debt. The complainant alleged that the petitioner borrowed ?4 lakhs and issued a cheque, which was dishonored due to insufficient funds. The petitioner disputed this, claiming the cheque was given as collateral for business transactions and misused by the complainant.

2. Validity of the Cheque and Its Issuance:
The petitioner argued that the cheque in question was issued in 2005 as a blank cheque and was misused in 2012. The court noted that while the cheque book was issued in 2005, there is no restriction on the time frame within which a cheque must be used. The petitioner did not deny the signature on the cheque, and the courts found the cheque valid and enforceable.

3. Misuse of Blank Cheques:
The petitioner claimed that the cheque was misused by the complainant. The court examined the evidence, including the petitioner's reply notice and the Bank Manager's testimony, which confirmed the issuance of the cheque in 2005. However, the court found no substantial proof from the petitioner to support the claim of misuse.

4. Statutory Notice and Its Compliance:
The complainant issued a statutory notice on 04.04.2012, which the petitioner acknowledged on 09.04.2012 but did not respond to within the statutory period. The petitioner’s reply came only on 08.06.2012, after the complaint was filed. The court found that the complainant complied with the statutory requirements under the Negotiable Instruments Act.

5. Evidence and Burden of Proof:
The court highlighted that under Section 139 of the Negotiable Instruments Act, there is a presumption that the cheque was issued for the discharge of a debt or liability. This presumption is rebuttable, but the petitioner failed to provide sufficient evidence to rebut it. The court referred to various judgments, emphasizing that the burden of proof on the accused is only by preponderance of probability, which the petitioner did not meet.

6. Scope of Criminal Revision under Section 397 r/w 401 CrPC:
The court reiterated that the scope of revision is limited to checking for illegality, perversity, or impropriety in the findings of the lower courts. It cannot re-appreciate evidence as a second appellate forum. The court found no such issues in the findings of the trial and appellate courts, which had both found the petitioner guilty.

Conclusion:
The Criminal Revision Case was dismissed, affirming the conviction and sentence of one year simple imprisonment and compensation of ?4 lakhs, with a default sentence of three months simple imprisonment. The respondent was permitted to withdraw ?1 lakh deposited by the petitioner during the revision proceedings. The trial court was directed to secure the petitioner to undergo the imprisonment period.