2021 (3) TMI 899 - HC - Indian Laws

Dishonor of Cheque - Service of notice regarding cheque bouncing - discharge of onus against presumption of cheque - specific case of the accused before the learned lower appellate court was that the learned trial court failed to consider that the cheque was issued in a matter of investment in the business of the accused and was not in discharge of any debt - applicability of Sections 138 to 142 of the Negotiable Instruments Act - HELD THAT - The legal notice regarding bouncing of cheque was sent through registered post as well as through courier service and the learned trial court at para-8 of its judgment has considered the service of legal notice through registered post i.e. through post office as well as the notice sent through courier service. In fact, the learned trial court has recorded that the post office has given in writing that notice i.e. Exhibit-5 and registered letter No. A-976 dated 17.08.2004 was delivered to the payee on 19.08.2004 for which a certificate of the post office was also exhibited and marked as Exhibit-6 and it is only in connection with the notice sent through courier service that it has been recorded that the same was served upon Umesh Kumar, who is the son of the petitioner. Thus, this Court finds that notice was sent through two modes; once through registered post and another through courier service and so far as the registered post is concerned, the same was served upon the petitioner for which the certificate of the post office i.e. Exhibit-6 was exhibited and so far as the courier service is concerned, it is only this courier notice which was served upon the son of the petitioner. This Court finds that there is consistent finding of the learned courts below in connection with service of the registered notice regarding cheque bouncing upon the petitioner after due appreciation of the materials on record particularly Exhibit-5 and Exhibit-6 - the contention of the learned counsel for the petitioner that the notice was served upon the son of the petitioner and not upon the petitioner is devoid of any merit. Discharge of onus regarding presumption of cheque - HELD THAT - In the instant case, the specific case of the complainant was that he was to invest in the business of the accused and in lieu of that it was agreed he would be entitled to get 40% of the profit and subsequently the accused inter alia issued the aforesaid two cheques. Admittedly, in the present case, the accused has not led any defence evidence. This Court is of the considered view that considering the nature of transactions between the parties and read with the presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued against discharge of existing debt or other liability, the argument of the petitioner that the same was issued by way of security has no legal basis and accordingly, this Court finds that the accused could not discharge his onus against the presumption of cheque having been drawn in discharge of liability. This Court finds that the learned courts below have not committed any error, illegality or perversity in convicting the petitioner for bouncing of the two cheques - Revision petition dismissed.

Issues Involved:
1. Validity of the conviction under Section 138 of the Negotiable Instruments Act, 1881.
2. Service of notice to the accused.
3. Applicability of Sections 138 to 142 of the Negotiable Instruments Act.
4. Presumption under Section 139 of the Negotiable Instruments Act.
5. Whether cheques were issued as security or against an existing debt.

Issue-wise Detailed Analysis:

1. Validity of the conviction under Section 138 of the Negotiable Instruments Act, 1881:
The petitioner challenged the judgment dated 01.02.2012, passed by the learned Sessions Judge, Bokaro, which affirmed the conviction and sentence by the Judicial Magistrate, Bokaro, for the offence under Section 138 of the Negotiable Instruments Act, 1881. The petitioner was sentenced to pay a fine of ?1,20,000, with ?60,000 to be given to the complainant as compensation, and in default, to undergo simple imprisonment for six months.

2. Service of notice to the accused:
The petitioner argued that the notice was served on his son, not him, thus invalidating the service of notice. The court, however, found that the notice was sent through registered post and courier service. The registered post notice was served on the petitioner, as evidenced by Exhibit-6, while the courier notice was served on the petitioner's son. The court held that the service of notice through registered post was valid and the petitioner's contention was devoid of merit.

3. Applicability of Sections 138 to 142 of the Negotiable Instruments Act:
The petitioner contended that the cheques were issued as part of an investment agreement and not for discharging any debt, thus Sections 138 to 142 of the Negotiable Instruments Act were not applicable. The court rejected this argument, stating that there is no bar on the applicability of Section 138 to cheques issued for liabilities arising out of business investments. The lower appellate court had also rejected this plea, affirming that the notice was legally valid.

4. Presumption under Section 139 of the Negotiable Instruments Act:
The court emphasized the presumption under Section 139 of the Negotiable Instruments Act, which assumes that the cheque was issued for the discharge of any debt or other liability. The petitioner failed to discharge the reverse burden of proof to rebut this presumption. The court noted that the petitioner did not adduce any defense evidence to counter this presumption.

5. Whether cheques were issued as security or against an existing debt:
The petitioner argued that the cheques were issued as security and not against an existing debt. The court found that the nature of the transactions and the presumption under Section 139 indicated that the cheques were issued against a liability. The court held that the petitioner could not prove that the cheques were issued as security and not for discharging a debt.

Conclusion:
The court found no error, illegality, or perversity in the judgments of the lower courts. The petitioner's arguments were rejected, and the conviction under Section 138 of the Negotiable Instruments Act was upheld. The revision petition was dismissed, and the petitioner's bail bonds were canceled. The records were ordered to be sent back to the concerned court, and the order was to be communicated via FAX/e-mail.

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