2022 (1) TMI 557 - HC - Indian Laws

Dishonor of Cheque - discharge of legal enforcement debt or not - rebuttal of presumption - section 138 of NI Act - HELD THAT - This Court sees no reason to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. In the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power - Having scanned entire evidence available on record, this court is convinced and satisfied that complainant has successfully proved by leading cogent and convincing evidence that the accused issued cheque in question in discharge of his lawful liability, but the same came to be dishonored. Since despite issuance of legal notice, accused failed to make good the payment, learned court below, in the totality of evidence led on record by the complainant, rightly held accused guilty of having committed offence punishable under S.138 of act and as such, no interference in the impugned judgment/order of conviction and sentence is called for. The present revision petition is dismissed being devoid of any merit.

Issues Involved:
1. Legality of the conviction under Section 138 of the Negotiable Instruments Act.
2. Evaluation of evidence and findings by the trial court and appellate court.
3. Applicability of statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act.
4. Examination of the accused's defense and rebuttal of the presumption.
5. Jurisdiction and scope of the High Court's revisional powers under Section 397 CrPC.

Issue-wise Detailed Analysis:

1. Legality of the conviction under Section 138 of the Negotiable Instruments Act:
The petitioner challenged the judgment dated 20.12.2019, passed by the Additional Sessions Judge, which affirmed the conviction and sentence by the Additional Chief Judicial Magistrate. The accused was found guilty of committing an offense under Section 138 of the Negotiable Instruments Act and sentenced to one year of simple imprisonment and ordered to pay ?1,00,000 as compensation to the complainant. The complainant had advanced ?1,00,000 to the accused, who issued a cheque that was dishonored due to "exceeds arrangement." The complainant served a legal notice, and upon non-payment, filed a complaint under Section 138.

2. Evaluation of evidence and findings by the trial court and appellate court:
The trial court, based on the evidence, convicted the accused. The appellate court upheld this conviction. The High Court found that the complainant successfully proved that the accused issued the cheque to discharge his liability, which was dishonored. The accused's denial in his statement under Section 313 CrPC and the cross-examination of the complainant did not refute the evidence that the cheque was issued for a lawful liability.

3. Applicability of statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act:
The High Court emphasized the statutory presumptions under Sections 118 and 139, which presume that the cheque was issued for discharging a debt or liability unless proven otherwise. The accused admitted to issuing the cheque, and thus, the presumption favored the complainant. The court cited the Supreme Court's judgment in Rohitbhai Jivanlal Patel v. State of Gujarat, which held that once the presumption is drawn, the onus shifts to the accused to rebut it.

4. Examination of the accused's defense and rebuttal of the presumption:
The accused's defense, presented through DW-1 (his son), claimed no dealings with the complainant but with the complainant's brother. However, there was no documentary evidence to support this claim. The High Court found the defense insufficient to rebut the presumption. The court referenced M/s Laxmi Dyechem v. State of Gujarat, which stated that the accused must establish a probable defense creating doubt about the debt or liability to rebut the presumption under Section 139.

5. Jurisdiction and scope of the High Court's revisional powers under Section 397 CrPC:
The High Court noted its limited jurisdiction under Section 397 CrPC, which is supervisory and not equivalent to appellate jurisdiction. The court should not re-appreciate evidence unless there is a glaring miscarriage of justice. The High Court found no error in the concurrent findings of the lower courts and upheld the judgments. The court referenced the Supreme Court's judgment in State of Kerala v. Puttumana Illath Jathavedan Namboodiri, which emphasized the limited scope of revisional jurisdiction.

Conclusion:
The High Court dismissed the revision petition, upholding the conviction and sentence. The court directed the petitioner to surrender before the trial court to serve the sentence. The judgments of the lower courts were found to be based on a correct appreciation of evidence, and no material irregularity was identified. The statutory presumptions under the Negotiable Instruments Act were correctly applied, and the accused failed to rebut the presumption of liability.

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