9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (2) TMI 963 - HC - Indian LawsDishonor of Cheque - acquittal of accused - Rebuttal of presumption - Whether the learned trial court has appreciated the evidence before the court in the light of the sound principles regarding appreciation of evidence in cases arising out of 'Cheque Bounce under Negotiable Instrument Act 1881? - HELD THAT - Both the documentary and oral evidence adduced by the complainant coupled with the presumption arising under section 118 and 139 of the Negotiable Instrument Act 1881 clearly indicates that, the complainant has discharged the initial burden on him to show that, the accused has issued the cheque by for ₹ 52,000/- and the said cheque was issued for existence of legally enforceable recoverable debt and liability. The accused can rebut the presumption by two ways one by cross-examining the complainant and the other is by leading his defense evidence - The object of bringing Section 138 on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Despite civil remedy, Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induces the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly. On reading of the entire evidence of complainant and accused it is evident that, the accused has miserably failed to rebut statutory presumption. In view of section 20 of Negotiable Instrument Act, when once a person signs and delivers an negotiable instrument, the person signing shall be liable upon such instrument. So the contention that the cheque was issued blank cheque does not hold good in view of section 20 of Negotiable Instrument Act. The Hon'ble Suprme Court recently in BIR SINGH VERSUS MUKESH KUMAR 2019 (2) TMI 547 - SUPREME COURT held that the cheque duly signed and voluntarily made over to payee, was in discharge of debt or liability arises irrespective of whether the cheque was post dated or blank cheque for filling by payer or any other person in the absence of evidence of undue influence or coercion - Therefore it is evident that the complainant has proved beyond all reasonable doubt that, the accused has borrowed ₹ 52,000/- as a hand loan and executed Ex.P.1 cheque for discharge of that debt or liability. He has further proved that, the said debt was legally recoverable/enforceable debt or liability. Inspite of issuance of demand notice by the complainant after dishonor of the cheque, the accused failed to repay the said amount, thereby committed offence punishable under section 138 of Negotiable Instrument Act. The accused has failed to rebut the said evidence and statutory presumption arising in favour of complainant by any legally admissible evidence. It is crystal clear that, the accused has committed an offence punishable under section 138 of Negotiable Instrument Act and he needs to be sentenced accordingly - Section 138 Negotiable Instrument Act, 1881 provides punishment both imprisonment which may extend two years or with fine which may extend to twice the amount of cheque, or with both. The offences under negotiable instrument Act are regulatory offences intend to give sanctity to the negotiable instruments. Keeping in mind the settled principles regarding imposition of sentence in cheque bounce case, in my considered view the accused needs to be imposed the fine double the cheque amount. In this case the cheque amount is ₹ 52,000/-. The case of the year 2003. Now we are in the end of the year 2020. So nearly seventeen years the case is pending. Therefore, in my considered view the imposition of double the cheque amount as a fine is a proper sentence - Appeal allowed.
Issues Involved:
1. Whether the accused issued a cheque for ?52,000 in discharge of a legally enforceable debt or liability. 2. Whether the trial court's judgment acquitting the accused was perverse and required interference. 3. Whether the evidence and statutory presumptions under the Negotiable Instruments Act were properly considered. Issue-Wise Detailed Analysis: 1. Issuance of Cheque for Legally Enforceable Debt: The appellant/complainant claimed that the accused borrowed ?52,000 on 11-06-2003 and issued a post-dated cheque dated 26-07-2003 as security, which was dishonored due to insufficient funds. The complainant presented the cheque for encashment, issued a legal notice upon dishonor, and subsequently filed a complaint under Section 138 of the Negotiable Instruments Act. The accused admitted to issuing the cheque but contended that it was given as security for a tractor purchase in 2001 and not for a hand loan in 2003. The complainant supported his case with documentary evidence, including the dishonored cheque (Ex.P.1), bank endorsement (Ex.P.2), legal notice (Ex.P.3), and the hand loan deed (Ex.P.7), which was executed on 05-06-2003. The court noted that the accused's defense was improbable, as the hand loan deed was dated 2003, contradicting the accused's claim that the cheque was issued in 2001. The complainant's evidence was corroborated by PW.2, who testified about writing the hand loan deed in 2003. The court held that the complainant had discharged the initial burden of proving the issuance of the cheque in discharge of a legally enforceable debt. 2. Trial Court's Judgment of Acquittal: The trial court acquitted the accused, finding that the complainant failed to prove the existence of a legally enforceable debt. The appellant challenged this, arguing that the trial court failed to appreciate the evidence properly and did not consider the statutory presumption under Section 139 of the Negotiable Instruments Act. The appellate court found that the trial court's reasoning was flawed. The trial court had wrongly relied on the accused's counterfoil of the cheque book (Ex.D.4) without corroborating it with bank statements. The trial court also misinterpreted the evidence of DW.2, who did not support the accused's defense. The appellate court held that the trial court's findings were perverse and not based on sound principles of evidence appreciation. 3. Consideration of Evidence and Statutory Presumptions: The appellate court emphasized the statutory presumption under Section 139 of the Negotiable Instruments Act, which mandates that the cheque is presumed to be issued for a legally enforceable debt unless rebutted by the accused. The accused's evidence, including his testimony and the counterfoil of the cheque book, failed to rebut this presumption. The court referred to Supreme Court judgments, including Rangappa v. Mohan and Uttam Ram v. Devinder Singh Hudan, which clarified that the presumption under Section 139 includes the existence of a legally enforceable debt. The accused's mere denial was insufficient to rebut the presumption. The court also noted that the accused did not take any steps to prove forgery or fraud regarding the hand loan deed (Ex.P.7). Conclusion: The appellate court concluded that the complainant had proved beyond reasonable doubt that the accused issued the cheque for ?52,000 in discharge of a legally enforceable debt. The trial court's judgment of acquittal was set aside, and the accused was convicted under Section 138 of the Negotiable Instruments Act. The accused was sentenced to pay a fine of ?1,04,000, with ?1,00,000 to be paid as compensation to the complainant and ?4,000 to be credited to the state. If the fine was not deposited within 30 days, the accused would undergo simple imprisonment for one year.
|
