2022 (6) TMI 369 - HC - Indian Laws

Dishonor of cheque - signature on the cheque has been denied or not - rebuttal of statutory presumption - HELD THAT - On a perusal of the materials on record, it is not in dispute that the petitioner/accused had handed over the signed cheque/Ex. P2 to the first respondent. According to the petitioner during the year, 1995, the first respondent was running a chit business in the name of M/s. Praveenath Chits. The first respondent/P.W. 1/complainant admitted that from the year 1995 to 2009, he had been running the business, which is proved by Ex. D1. The petitioner had subscribed to the chit. To prove the fact marked Ex. D2/Chit Fund Pass Book. The first respondent/P.W. 1 admit that it is the usual practice that, while running a chit fund, unfilled signed cheques will be obtained in the course of the chit business - The petitioner had probabilised his defence, who got into the box, gave explanation as to how the signed cheques, landed in the hands of the first respondent. The first respondent unable to make discredit the evidence of the petitioner while cross examining him. The Hon'ble Apex Court in a case of Basalingappa Vs. Mudibasappa 2019 (4) TMI 660 - SUPREME COURT had clearly given guidelines, as well as in the case of RANGAPPA VERSUS SRI MOHAN 2010 (5) TMI 391 - SUPREME COURT , and held that the statutory presumption is rebuttable, which can be either from the cross examination of the witnesses or the accused getting into the box and giving his explanation. In this case, the petitioner had got into the box, gave his explanation about the handing over of the cheque and questioned the difference in ink. Both the Courts below failed to analyse the evidence on the contrary proceeded merely on presumption and convicted the petitioner. This Court finds that the petitioner had probabilised his defence, gave proper explanation. The Courts below failed to analyse the evidence, weigh the materials, consider the explanation given, on the other hand primarily on the presumption convicted the petitioner, failing to look into the fact that the petitioner has probabilised his defence. In view of the same, this Court is inclined to set aside the conviction and sentence passed by the trial Court. This Criminal Revision Case is allowed.

Summary

Issues:
Conviction order challenge in Criminal Revision Case.

Analysis:
The Criminal Revision Case challenged the conviction order passed by the learned I Additional District and Sessions Judge at Coimbatore, confirming the conviction by the learned Judicial Magistrate in a case under Section 138 of the Negotiable Instruments Act. The petitioner/accused denied giving the cheque for any liability discharge, asserting it was part of a chit fund security practice. The petitioner argued that the lower courts failed to consider evidence, relying on the presumption under Section 139. The petitioner referenced a Supreme Court decision outlining principles under Sections 118(a) and 139 of the Act, emphasizing the rebuttable nature of the presumption and the accused's burden to raise a probable defense.

The petitioner contended that the first respondent/complainant failed to prove the misuse of the cheque and pro-note, highlighting inconsistencies in the complainant's version and lack of evidence regarding payment discharge. The first respondent argued that the petitioner's defense was an afterthought to evade liability, pointing out the identical signatures on the specimen card and the cheque. The first respondent cited a Supreme Court decision allowing review of evidence by the High Court to ensure findings were not unreasonable or perverse.

The Court noted the petitioner's explanation regarding the cheque's handover and ink color differences, indicating a probable defense. It criticized the lower courts for primarily relying on statutory presumptions under Sections 118(a) and 139, overlooking other evidence. The Court referenced Supreme Court guidelines emphasizing the rebuttable nature of statutory presumptions and the need for proper analysis of evidence.

Ultimately, the Court found that the petitioner had substantiated a defense, providing a reasonable explanation. It criticized the lower courts for not properly analyzing evidence and solely relying on statutory presumptions, leading to the acquittal of the petitioner. The judgment set aside the conviction and sentence, granting relief to the revision petitioner in the Criminal Revision Case challenging the conviction order.