2020 (12) TMI 146 - HC - Indian Laws

Dishonor of Cheque - legally enforceable debt or not - the petitioner was supposed to prove preponderance of probability that at the time of legal notice - HELD THAT - Vide the present petition under Section 482 Cr.P.C., the petitioner has sought to combine the Civil Execution Proceedings pending before the Learned Additional District Judge, Tis Hazari Court, Delhi, and the criminal proceedings pending before the Learned Metropolitan Magistrate. The said reliefs cannot be granted since both proceedings are mutually exclusive and are pertaining to different reliefs since one is pending before the Additional District Judge for execution of the settlement decree dated 29.01.2015 and the other is before the Learned Metropolitan Magistrate for compliance of the order of conviction and which has been disposed of vide order 18.01.2020 whereby the petitioner has been declared an absconder after due procedure under Section 82 Cr. P.C. was followed. The present petition is liable to be dismissed since the Petitioner has not come before this Court with clean hands especially as the Petitioner has defaulted on payments, eventually, it was required to make efforts to satisfy settlement decree dated 29.01.2015. The said settlement decree has attained finality and is liable to be complied with. Hence, the petitioner through the present petition cannot seek to override/appeal/modify the contents of the said Settlement Decree. The presumption of law, though rebuttable, works in favour of the complainant. However, the presumption gets rebutted if the defence raises a reasonable suspicion in the prosecution story by raising a probable defence. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory presumption. However, this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary - the onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and the same can be done by accused by either bringing out loopholes in the case of the complainant or by bringing a reasonably probable defence in his favour. Since such case attracts a criminal liability, the burden of proof upon the complainant is to the extent of proving his/her case beyond all reasonable doubts whereas the accused is required to create preponderance of probabilities in this favour. Admittedly, there has been default, in making payment, on the part of petitioner since July 2011. Despite the decree passed by this Court and conviction by the Trial Court, till date respondent has not received the payment due. The legal fight of the respondent had started from the legal notice dated 11.08.2011 and continued till date. Thus, the respondent was compelled to run from pillar to post. In such circumstances as in the present case, the petitioner deserves no leniency or sympathy. There is no illegality or perversity in the orders passed by the Trial Court and Appellate Court as well - Petition dismissed.

Issues Involved:
1. Legally enforceable debt/liability under Section 138 of the Negotiable Instruments Act.
2. Admissibility of part payments against security cheques.
3. Compliance with settlement decrees and installment payments.
4. Rebuttal of presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act.
5. Use of Section 482 Cr.P.C. for combining civil and criminal proceedings.

Detailed Analysis:

1. Legally enforceable debt/liability under Section 138 of the Negotiable Instruments Act:
The petitioner was convicted under Section 138 of the N.I. Act for dishonoring eight cheques totaling ?17,68,000 issued to the respondent. The petitioner admitted to a liability of ?15,68,000, having made a part payment of ?2,00,000. Despite this, the respondent demanded the full amount of ?17,68,000, leading to a legal notice and subsequent criminal complaint. The court held that the legally enforceable debt at the time of the legal notice was ?15,68,000, not ?17,68,000, and convicted the petitioner for failing to pay this amount.

2. Admissibility of part payments against security cheques:
During the trial, it was established that the petitioner had made a part payment of ?2,00,000, which was admitted by the respondent. However, the payment was not linked to any specific cheque. The court noted that despite this part payment, the petitioner failed to clear the remaining liability, leading to his conviction.

3. Compliance with settlement decrees and installment payments:
A civil suit resulted in a settlement decree where the petitioner agreed to pay ?20,00,000 in 40 monthly installments of ?50,000. The petitioner defaulted on these payments, leading to the continuation of criminal proceedings. The court emphasized that the petitioner had not complied with the settlement decree, having only paid ?8,00,000 and defaulting on subsequent installments, which led to the respondent resuming criminal prosecution.

4. Rebuttal of presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act:
The court discussed the presumptions under Sections 118(a) and 139, which favor the complainant once the execution of the cheque is admitted. The petitioner admitted the cheques bore his signatures, thus raising the presumption of a legally enforceable debt. The petitioner failed to rebut this presumption effectively, as his defense did not create a reasonable doubt about the liability.

5. Use of Section 482 Cr.P.C. for combining civil and criminal proceedings:
The petitioner sought to combine the civil execution proceedings with the criminal proceedings under Section 482 Cr.P.C. The court rejected this request, stating that both proceedings are mutually exclusive and pertain to different reliefs. The civil proceedings were for executing the settlement decree, while the criminal proceedings were for compliance with the order of conviction.

Conclusion:
The court found no merit in the petitioner's arguments and dismissed the petition. The court upheld the orders of the Trial and Appellate Courts, emphasizing the petitioner's failure to comply with the settlement decree and the legally enforceable debt. The court also noted that the petitioner had not demonstrated any bona fides in seeking an amicable settlement or compounding the offense. The petition was dismissed with no orders as to costs, and the pending application was also disposed of.

← Previous Next →