2022 (6) TMI 487 - HC - Indian Laws

Dishonor of Cheque - Loss of cheque - rebuttal of presumption - convicting and sentencing the petitioner for the offence punishable under Section 138 of the N.I. Act - requirement of interference of this Court by invoking the revisional jurisdiction? - HELD THAT - I t is clear that though the accused disputed the signature in the cross-examination that signature not belongs to him, the signature available in the vakalath was confronted and he admits the same. It is important to note that though he contends that the notice was not served on him personally, but he categorically admits that notice was taken by his office incharge officer and handed over the notice to him and the same also bears the signature of incharge officer. When such being the case, the petitioner ought to have given the reply to the notice and no such reply was given. In the cross-examination of P.W. 1, specific defence was taken that one Devraj Urs, who is the relative of P.W. 1 had given the cheque in favour of the complainant and the same has been misused since Devraj Urs handed over the said cheque and got filed this case and the same has been denied. No doubt, in the income tax declaration, P.W. 1 has not declared for having paid the money. But in the cross-examination, P.W. 1 admits that he has not produced any documents to show that he is paying income tax. But he admits that he is an income tax assessee. But non-filing of the document for having paid income tax will not take away the case of the complainant and the petitioner has to explain how the subject matter of cheque had gone to the hands of the said Devraj Urs and what made him to give the said cheque - It is only stated that Devraj Urs had taken away several cheques belonging to him and no doubt, the wife of the petitioner had given the complaint in terms of Ex. D.2, but she has not been examined before the Trial Court and both the Courts have taken note of that if she had been examined before the Trial Court, an opportunity was given to the complainant to testify the document of Ex. D.2. The other contention of the petitioner is that P.W. 1 has admitted the relationship with Devraj Urs and mere admission that Devraj Urs is the relative of the complainant does not mean that Devraj Urs had given the cheque in favour of the complainant. I have already pointed out that contra defence was taken in the chief examination and cross-examination and even the petitioner had gone to the extent of denying his signature available in Ex. P.1 and it is not his case that the signature not belongs to him and nowhere in the affidavit he has stated that the said signature not belongs to him, but only in the cross-examination he says the same - there are no force in the contention of the learned counsel for the petitioner to accept the argument that the petitioner has probabalised his case. Loss of cheque - rebuttal of the presumption - HELD THAT - The Apex Court in the judgment in the case UTTAM RAM v. DEVINDER SINGH HUDAN AND ANOTHER 2019 (11) TMI 550 - SUPREME COURT , held that inconsistencies regarding the amount due, not made out, as amount due stood crystallized in written document against which cheque in question was issued. The defence that the cheque book was lost/stolen or that cheque was misused was completely without basis. The contention of the petitioner cannot be accepted regarding source of income and non-production of income tax declaration regarding payment and the very defence that cheque was stolen was not proved. Apart from that, when the notice was served, no reply was given and he kept quiet and during the course of trial afterthought inconsistent defence was taken and hence there are no merit in the petition. Both the Courts have given anxious consideration with regard to defence which have been taken. There are no error committed by both the Courts. In order to invoke the revisional jurisdiction, there must be an error in the finding of the Trial Court and the Appellate Court and if any perverse order is passed against the cogent evidence available on record, then this Court can exercise the revisional jurisdiction - petition dismissed.

Summary

Issues Involved:
1. Error in convicting and sentencing the petitioner under Section 138 of the N.I. Act.
2. Confirmation of the conviction and sentence by the Appellate Court.
3. Requirement of interference by the High Court in revisional jurisdiction.

Issue-wise Detailed Analysis:

1. Error in Convicting and Sentencing the Petitioner under Section 138 of the N.I. Act:

The petitioner contended that both the Trial Court and the Appellate Court failed to appreciate the defense set forth. The petitioner argued that specific dates for the payment were not mentioned, and there was no evidence of the mode of payment or witnesses present during the transactions. The petitioner also questioned the complainant's source of income and the non-declaration of the Rs. 8,00,000/- in income tax returns. Additionally, the petitioner claimed that the cheque in question was misused by a relative of the complainant, Devraj Urs, and that a complaint had been filed in 2007 regarding the theft of the cheque.

The Court examined the material on record and found that the complainant had specified the months of payment in the complaint and during cross-examination. The complainant testified that he paid Rs. 3,00,000/- in June, Rs. 2,00,000/- in July, and Rs. 3,00,000/- in August 2008. The Court noted that the petitioner admitted to receiving the notice of dishonor but did not reply, which weakened his defense. The petitioner also failed to provide a consistent explanation regarding the alleged theft of the cheque and did not produce any supporting documents or witnesses, including his wife, who had allegedly filed the complaint about the stolen cheque.

The Court found that the petitioner’s inconsistent defenses and failure to rebut the presumption under Sections 118 and 139 of the Negotiable Instruments Act did not support his case. The Court referred to several judgments, including those of the Apex Court, which established that the presumption of the existence of a legally recoverable debt or liability is in favor of the complainant, and the onus to rebut this presumption lies on the accused.

2. Confirmation of the Conviction and Sentence by the Appellate Court:

The Appellate Court had re-appreciated the oral and documentary evidence and upheld the Trial Court’s judgment. The Appellate Court addressed the petitioner’s contentions, including the inconsistent defense regarding the alleged theft of the cheque and the failure to provide a reply to the notice of dishonor. The Appellate Court also noted that the complainant’s relationship with Devraj Urs did not automatically imply misuse of the cheque. The Court found no error in the findings of the Appellate Court.

3. Requirement of Interference by the High Court in Revisional Jurisdiction:

The High Court emphasized that revisional jurisdiction is exercised only when there is a perverse order or an error in the findings of the lower courts. The Court found that both the Trial Court and the Appellate Court had given detailed and reasoned judgments after considering the evidence on record. The petitioner’s defense was not substantiated, and the inconsistencies in his statements further weakened his case. The Court concluded that there was no merit in the revision petition and dismissed it.

Conclusion:

The High Court dismissed the petition, affirming the conviction and sentence under Section 138 of the N.I. Act. The Court found no error in the judgments of the Trial Court and the Appellate Court, and the petitioner failed to rebut the presumption of a legally recoverable debt. The petitioner’s inconsistent defenses and failure to provide a reply to the notice of dishonor further weakened his case.