2021 (12) TMI 1005 - HC - Indian Laws

Dishonor of Cheque - Discharge of legally enforceable debt or not - actual person to whom the cheque is issued - acquittal of the accused - rebuttal of presumption - cross-examination of witnesses - HELD THAT - Perusing the material available on record vis- -vis reasoning assigned by learned Courts below, while holding accused guilty of having committed offence punishable under 138 of the act, this court finds it difficult to agree with learned counsel for the petitioner that the learned courts below have failed to appreciate the evidence in right perspective rather, close scrutiny of evidence and pleadings clearly reveals that both learned courts below have dealt with each and every aspect of the matter meticulously and no scope is left for interference by this court - Interestingly, in the case at hand, there is no denial on the part of accused with regard to issuance of cheque as well as his signatures thereupon. He has categorically stated in the statement recorded under S. 313 CrPC, that he had not issued cheque in question to the complainant but to his son-in-law, who further gave it to the complainant as security. Once there is no denial of issuance of cheque and signatures thereupon, presumption as available under Ss. 118 and 139 comes into play. Section 118 and 139 of the Act clearly provide that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability - True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant. The Hon'ble Apex Court in M/S LAXMI DYECHEM VERSUS STATE OF GUJARAT ORS. 2012 (12) TMI 106 - SUPREME COURT , has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. In the case at hand, complainant with a view to prove his case examined himself as CW-1 and successfully proved on record contents of the complaint. Cross-examination conducted upon this witness nowhere suggests that the opposite party was able to extract anything contrary to what he stated in his examination-in-chief - witness admitted that the house of accused is situate near Kali Bari Temple, Shimla. While admitting the suggestion that he has not cited his wife as witness, he feigned ignorance that the cheque has been filled in two different inks. This witness self-stated that the cheque was filled in by the accused himself. This witness denied the suggestion that he has misused the cheque. Careful perusal of the statement of the accused clearly reveals that he has not denied issuance of cheque and his signatures thereupon, rather, his simple defence is that the cheque in question was issued to one Rajan, his son-in-law, who was to further hand over the cheque to someone from whom he had taken ₹ 25,000/-. There is no explanation that in case cheque was issued to Rajan, how it reached complainant. It is not the case of the accused that Rajan, had borrowed ₹ 25,000/- from the complainant and he had handed over cheque to the complainant as security. The present revision petition is dismissed being devoid of any merit - decided against petitioner.

Summary

Issues Involved:
1. Challenge to judgment of conviction and order of sentence under Section 138 of the Negotiable Instruments Act.
2. Evaluation of evidence and legal presumptions under Sections 118 and 139 of the Negotiable Instruments Act.
3. Defense raised by the accused regarding the issuance and purpose of the cheque.
4. Legal principles regarding the burden of proof and rebuttal of presumptions under the Negotiable Instruments Act.

Detailed Analysis:

1. Challenge to Judgment of Conviction and Order of Sentence under Section 138 of the Negotiable Instruments Act:
The criminal revision petition challenges the judgment dated 2.11.2020 by the Sessions Judge, Shimla, which affirmed the conviction and sentence by the Judicial Magistrate First Class, Shimla. The trial court had convicted the accused under Section 138 of the Negotiable Instruments Act and sentenced him to three months of simple imprisonment and to pay compensation of ?1,60,000 to the complainant.

2. Evaluation of Evidence and Legal Presumptions under Sections 118 and 139 of the Negotiable Instruments Act:
The complainant alleged that he had advanced ?1,50,000 to the accused, who issued a cheque that was dishonored due to insufficient funds. The trial court found the accused guilty based on the evidence presented. The accused admitted to issuing the cheque and his signatures but claimed it was given to his son-in-law as security. The court noted that once the issuance of the cheque and signatures are admitted, the presumptions under Sections 118 and 139 come into play, presuming the cheque was issued for discharging a debt or liability unless proven otherwise.

3. Defense Raised by the Accused Regarding the Issuance and Purpose of the Cheque:
The accused contended that the cheque was given to his son-in-law, not the complainant, and was meant as security for a different transaction. However, the court found no evidence supporting this claim. The accused's failure to present himself in court or deposit the compensation amount further weakened his defense. The court relied on the principles established in Rohitbhai Jivanlal Patel v. State of Gujarat, emphasizing that the accused must bring forth substantial evidence to rebut the statutory presumptions.

4. Legal Principles Regarding the Burden of Proof and Rebuttal of Presumptions under the Negotiable Instruments Act:
The court referred to the Hon'ble Apex Court's rulings, particularly in M/s. Laxmi Dyechem v. State of Gujarat, which state that the accused can rebut the presumption by raising a probable defense, either through positive evidence or by challenging the complainant's material. The court noted that the accused failed to provide a credible defense or contest the existence of a legally enforceable debt. The complainant's evidence, including the cheque and related documents, was deemed sufficient to uphold the conviction.

Conclusion:
The court dismissed the revision petition, upholding the judgments and order of conviction and sentence passed by the lower courts. The petitioner was directed to surrender before the trial court to serve the sentence. The court emphasized that the accused's failure to comply with court orders and provide a credible defense justified the dismissal of the petition.