2022 (7) TMI 816 - HC - Indian Laws

Dishonor of Cheque - legally enforceable debt or not - discharge of initial burden of prove - rebuttal of presumption - acquittal of accused - Section and 138 and 139 of NI Act - HELD THAT - It is well settled that the initial burden that the cheque was given and that it was issued in discharge of a legally enforceable debt has to be discharged before the presumption can be invoked. When the complainant fails to discharge the initial burden of showing that there was, in fact, a legally enforceable debt or liability due to him by the accused, the question of presumption under Section 139 of the Act in favour of the complainant, does not simply arise. The presumption contained under Section 139 of the Act arises only, when the initial burden lying on the complainant to show existence of legally enforceable debt or liability, is discharged. However, the accused by adducing oral evidence and filed Ex. D.1 to D.4 documentary evidence rebutted the presumption under Section 139 of the Act. Since the accused rebutted the presumption whatever arisen by adducing oral and documentary evidence, the onus shifts again on the complainant to prove his financial capacity by adducing oral evidence, more particularly, when it is the case of giving loan by cash - In the present case, the complainant has miserably failed to discharge the burden cast on him and there is no cogent evidence to believe that the accused had, in fact, issued the alleged cheque in favour of the complainant towards discharge of legally enforceable debt. The learned trial Court has rightly concluded that the complainant failed to prove the essential ingredient of the offence that the alleged cheque under Ex. P.1 for Rs. 6,20,000/- was issued by the accused against discharge of legally enforceable debt, as such, rightly dismissed the complaint and acquitted the accused under Section 255(1) Cr.P.C. for the offence under Section 138 of the Negotiable Instruments Act, 1881 - Appeal dismissed.

Summary

Issues:
- Appeal against acquittal under Section 138 of the Negotiable Instruments Act, 1881.

Detailed Analysis:

Issue 1: Allegations and Evidence Presented
The appellant filed a complaint against the respondent for dishonoring a cheque issued as repayment for a hand loan. The appellant alleged that despite several requests, the respondent failed to repay the loan and issued a dishonored cheque. The appellant presented oral and documentary evidence to support the claim.

Issue 2: Trial Court Decision
The learned Magistrate found that the appellant failed to establish the existence of a subsisting liability by the respondent towards the appellant. Consequently, the Magistrate held that the essential ingredients of the offence under Section 138 of the Act were not proven. The Magistrate also noted that the respondent successfully rebutted the presumption under Section 139 of the Act, leading to the acquittal of the respondent.

Issue 3: Appeal Against Acquittal
The appellant, dissatisfied with the trial court's decision, appealed to the VIII Additional Metropolitan Sessions Judge, who returned the appeal. Subsequently, the appellant filed the present appeal challenging the acquittal of the respondent under Section 138 of the Act.

Issue 4: Arguments in Appeal
The appellant contended that the trial court erred in not considering the existing liability and the issuance of the dishonored cheque by the respondent. The appellant argued that the presumption under Section 138 of the Act should have led to the conviction of the respondent. On the other hand, the respondent's counsel maintained that the appellant failed to prove that the cheque was issued for a legally enforceable debt, justifying the trial court's dismissal of the complaint.

Issue 5: Burden of Proof and Presumption
The judgment highlighted the requirement for the complainant to discharge the initial burden of proving the existence of a legally enforceable debt before invoking the presumption under Section 139 of the Act. Failure to establish this initial burden negates the application of the presumption in favor of the complainant.

Issue 6: Evaluation of Evidence
The court analyzed the evidence presented by both parties. While the appellant claimed the loan repayment through the dishonored cheque, the respondent argued that the cheque was issued due to fraudulent activities by a third party. The respondent provided documentary evidence supporting the stop payment instructions issued prior to the cheque's presentation.

Issue 7: Court's Decision
After thorough consideration of the submissions and evidence, the court upheld the trial court's decision. The court concluded that the appellant failed to prove that the cheque was issued by the respondent against a legally enforceable debt. Consequently, the complaint was dismissed, and the respondent was acquitted under Section 255(1) Cr.P.C. for the offence under Section 138 of the Negotiable Instruments Act, 1881.

Conclusion
The court dismissed the criminal appeal, confirming the acquittal of the respondent. The judgment emphasized the importance of establishing a legally enforceable debt before invoking the presumption under the Act. The appellant's failure to discharge this burden led to the dismissal of the complaint.