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2021 (12) TMI 278 - HC - Indian LawsDishonor of cheque - denial of reasonable opportunity to explain the incriminating circumstances - rebuttal of statutory presumptions - burden of proof on the complainant or not - HELD THAT - In the present case, the complainant has presented a probable story supported by evidence. It stands established that he developed a relationship with the accused who was a cashier at the Kailashahar branch of SBI where the complainant used to come for drawing his pension. It is not denied that as an employee of the bank the accused maintained a bank account in the said branch of the bank. The fact that the accused visited the house of the complainant and requested him to give loan of ₹ 4,50,000/- also stands established. PW-2 has supported the evidence of complainant PW-1 that in his presence the complainant gave the loan in cash to the accused and in turn the accused had issued the impugned cheque to the complainant and requested him to present the cheque at the bank at the end of the month. During cross examination of PW-1 and 2, accused did not deny the cheque nor he disowned his signature thereon. During his examination under Section 313 Cr.P.C. also he did not project any defence case. He simply stated that the evidence of PW-1 and 2 were false. The statutory presumption under Section 139 read with the Rule of Evidence as provided under Section 118 NI Act with regard to the existence of debt or liability is not a discretionary presumption, it is a statutory presumption which is obligatory on the part of the court. A huge burden is cast on the accused to rebut such presumption by adducing reasonably probable defence. It cannot be rebutted by merely offering an explanation - In the instant case, apparently the accused petitioner did not lead any evidence in rebuttal of such statutory presumptions. He has also failed to bring on record such facts and circumstances which would make the courts believe that the liability, attributed to the accused petitioner was improbable or doubtful. This court is of the view that there is no reason to interfere with the concurrent findings of the courts below with regard to conviction of the petitioner under Section 138 NI Act. As a result, his conviction under Section 138 NI Act is upheld. Petition disposed off.
Issues Involved:
1. Validity of the conviction under Section 138 of the Negotiable Instruments Act (NI Act). 2. Adequacy of the service of statutory notice. 3. Examination of the accused under Section 313 Cr.P.C. 4. Appropriateness of the sentence imposed. Issue-wise Detailed Analysis: 1. Validity of the Conviction under Section 138 of the NI Act: The petitioner was convicted under Section 138 of the NI Act for issuing a cheque that was dishonored due to insufficient funds. The trial court found the petitioner guilty and sentenced him to six months of simple imprisonment and a fine of ?4,50,000/-. The Sessions Judge affirmed this conviction, noting that the evidence, including the testimony of witnesses and the dishonored cheque, clearly proved the commission of the offense. The judgment emphasized that the requirements to establish an offense under Section 138 NI Act were fulfilled, including the drawing of the cheque, its presentation, dishonor due to insufficient funds, issuance of a statutory notice, and failure to pay the cheque amount within the stipulated time. 2. Adequacy of the Service of Statutory Notice: The petitioner argued that the statutory notice was not properly served. However, the Sessions Judge and the trial court found that the notice was sent to the correct address but returned unserved with the endorsement that the accused was "out of station for a long time." The courts applied the principle that if a notice is duly directed and sent by post, it is presumed to be served unless proven otherwise. The courts concluded that the petitioner intentionally avoided the notice, and thus, the service of notice was deemed proper. 3. Examination of the Accused under Section 313 Cr.P.C.: The petitioner contended that the incriminating evidence, including the cheque, was not shown to him during his examination under Section 313 Cr.P.C., denying him a fair opportunity to explain the circumstances. The court referred to Supreme Court judgments emphasizing the importance of Section 313 Cr.P.C. in providing the accused an opportunity to explain incriminating evidence. However, the court noted that the petitioner did not deny issuing the cheque or his signature on it during the trial or his examination under Section 313 Cr.P.C. The court found that the petitioner failed to rebut the statutory presumption of debt or liability under Section 139 NI Act. 4. Appropriateness of the Sentence Imposed: The High Court upheld the conviction but modified the sentence. It reduced the sentence to a fine of ?4,50,000/- with a default stipulation of six months of simple imprisonment. The court directed that the fine, upon realization, be paid to the complainant and ordered the petitioner to deposit the fine within two months, failing which the trial court would take steps to commit the petitioner to prison. Conclusion: The High Court upheld the conviction of the petitioner under Section 138 of the NI Act, finding no reason to interfere with the concurrent findings of the lower courts. The court reduced the sentence to a fine of ?4,50,000/- with a default imprisonment of six months, directing that the fine be paid to the complainant. The court also addressed the issues of service of notice and the examination of the accused under Section 313 Cr.P.C., concluding that the petitioner was given a fair trial and the statutory requirements were met.
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