2021 (4) TMI 748 - HC - Indian Laws

Dishonor of Cheque - correctness of the finding of acquittal - rebuttal of presumptions - Sections 118 and 139 of Negotiable Instruments Act - HELD THAT - It is the settled proposition of law that once the execution of the document is admitted or proved, the complainant is entitle to draw the presumptions under Sections 118 and 139 of the Act. In the decision reported in Bir Singh v. Mukesh Kumar 2019 (2) TMI 547 - SUPREME COURT . The Hon'ble Supreme Court has held that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars and itself would not invalidate the cheque - Thus after admitting issuance of Ext. P2 cheque, and having regard to the circumstances led to the issue of the instrument, the first respondent is estopped from taking contentions. Much has been argued about the Ext. D2 counter foils of cheques kept by him. In my assessment, no inference can be drawn on the arguments based on Ext. P2. It can be assumed that it is a document maintained in regular course of business. Even otherwise, the other circumstances adverted to earlier give a clear upper hand to the appellant. He has proved execution of Ext. P2 cheque and thus is entitled to draw the presumptions under Sections 118 and 139 of the Act. The first respondent could not rebut the presumptions. The learned Magistrate has failed to consider these relevant aspects on its proper perspective. The judgment is liable to be interfered with. The finding that the first respondent has not committed the offence is liable to be reversed. He is found guilty of offence punishable under Section 138 of the Act, convicted and sentenced to pay a fine of ₹ 81,500/- which shall be paid as compensation to the appellant - Appeal allowed - decided in favor of appellant.

Summary

Issues:
Prosecution under Section 142 of the Negotiable Instruments Act challenging acquittal based on insufficiency of evidence and liability of the accused.

Analysis:
1. The complaint was filed under Section 142 of the Negotiable Instruments Act after a cheque issued by the accused was dishonored due to insufficient funds. The trial court acquitted the accused due to lack of evidence regarding the actual liability of the accused towards a legally enforceable debt. The appeal was filed challenging this acquittal under Section 378(4) of the Code of Criminal Procedure.

2. The appellant argued that the accused, in a chitty transaction, owed a balance amount of ?58,000 along with interest, which was not reflected in the ledger extract. The appellant claimed entitlement to interest under the Chit Funds Act. The defense contended that the cheque was given as security in a signed blank form and was misused by the appellant.

3. The court noted that the accused was a subscriber to the chitty and had received a prize amount of ?75,000. The ledger extract indicated a balance due of ?58,000. The defense's argument of the cheque being misused was dismissed, and the court emphasized the appellant's entitlement to interest and penalties under the Chit Funds Act.

4. Referring to legal precedents, the court highlighted that once the execution of a document is admitted or proved, the complainant can draw presumptions under Sections 118 and 139 of the Act. The court cited cases where the statutory presumption holds even if a signed blank cheque is filled in by the payee. The court found the defense weak as the accused admitted the chitty transaction without proving full payment.

5. The court concluded that the appellant was entitled to draw presumptions under the Act regarding the cheque's execution. The trial court's failure to consider these aspects led to the reversal of the finding of innocence. The accused was convicted under Section 138 of the Act and sentenced to pay a fine of ?81,500 as compensation to the appellant, with a provision for imprisonment if the fine is not paid within three months.

This detailed analysis of the judgment highlights the legal arguments, evidentiary considerations, and application of statutory provisions leading to the reversal of the trial court's decision and the subsequent conviction of the accused.