2020 (12) TMI 506 - HC - Indian Laws

Dishonor of Cheque - argument has been raised by the petitioner's counsel that the complainant has not placed any material to show his solvency to pay a sum of ₹ 12,00,000/- to the revision petitioner - Section 138 of the Negotiable Instrument Act - HELD THAT - The cheque issued by the revision petitioner/accused marked as Ex.P1 and the return of the cheque by the concerned bank on presentation and the reason adduced therein and the issuance of the legal notice and the receipt of the same by the revision petitioner/accused, it is found that the revision petitioner/accused has not chosen to send any reply to the legal notice sent by the complainant calling upon her to pay the amount involved in the matter. From the materials placed on record, it is found that the revision petitioner/accused has taken a defence that she was having business dealings with the wife of the complainant and in connection with the said business, she had given the cheque in question as a security. However, pointing to the abovesaid version taken by the revision petitioner/accused in support of her defence, no acceptable and reliable material has been placed on record. It is found that the revision petitioner/accused has also lodged a complaint against the complainant's wife marked as Ex.P8 and to establish the same, the complainant has examined P.W.2, the police constable. However, from the evidence adduced in the matter, it is found that the revision petitioner/accused has disowned the lodgment of the compliant said to have been preferred by her - When the factum of the revision petitioner/accused having business transaction with the complainant's wife has not been established by adducing acceptable and reliable material and furthermore when the revision petitioner/accused has not placed any material to sustain that she had given the cheque in question as a security in connection with the silk business and as above pointed out the revision petitioner having not chosen to challenge the legal notice sent by the complainant, all put together, would only lead to the conclusion, as held by the courts below, that inasmuch as the revision petitioner/accused had received the amount from the complainant in connection with her daughter's education accordingly she is unable to place any material to rebut the presumption which had been rightly raised in favour of the complainant by the courts below. The courts below are found to have rightly assessed the materials placed on record both oral and documentary in the correct perspective and also considering the principles of law governing the case involved in the matter, are found to be justified in convicting and sentencing the revision petitioner/accused under Section 138 of the Negotiable Instrument Act and the sentence imposed on the revision petitioner is also found to be not on the higher side - there are no infirmity or error in the conviction and sentence imposed on the revision petitioner / accused by the courts below. Revision petition dismissed.

Summary

Issues:
1. Conviction and sentence under Section 138 of the Negotiable Instruments Act.
2. Defence version and evidence presented by the revision petitioner/accused.
3. Assessment of legal notice and failure to challenge it.
4. Rebuttal of presumption in favor of the complainant.
5. Solvency of the complainant and justification of the conviction and sentence.

Analysis:
1. The case involved a complaint under Section 138 of the Negotiable Instruments Act against the revision petitioner/accused for issuing a bounced cheque. The petitioner borrowed sums for education and issued a post-dated cheque, which was dishonored. The lower courts convicted and sentenced the petitioner, leading to the Criminal Revision Petition against the judgment.

2. The petitioner's defense claimed the cheque was given as security in a business deal with the complainant's wife. However, the court found the defense lacked reliable evidence. The petitioner disowned a complaint against the complainant's wife, further weakening her defense. The courts below disbelieved the defense due to lack of proof of business dealings and failure to challenge the legal notice.

3. The legal notice sent by the complainant was crucial, as the petitioner did not contest it, weakening her position. The failure to respond to the notice and lack of evidence supporting the defense led to the courts upholding the conviction. The petitioner's actions did not align with a genuine business transaction defense.

4. The courts rejected the petitioner's claim that the cheque was security for a business deal due to insufficient evidence. The lack of legal action to retrieve the cheque or challenge the notice worked against the petitioner. The courts upheld the presumption in favor of the complainant, as the petitioner failed to provide substantial evidence to counter it.

5. The petitioner argued the complainant's solvency was not proven, but the courts found the legal notice and lack of challenge significant. The absence of evidence to support the defense and failure to rebut the presumption favored the complainant. The conviction and sentence were deemed appropriate based on the evidence and legal principles applied.

In conclusion, the courts upheld the conviction and sentence of the revision petitioner/accused under Section 138 of the Negotiable Instruments Act, finding no errors in the lower courts' assessments of the evidence and legal aspects of the case. The dismissal of the Criminal Revision Petition was based on the lack of evidence supporting the defense and the failure to challenge crucial elements of the case.