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2022 (9) TMI 793 - HC - Indian LawsDishonor of Cheque - discharge of legally enforceable debt or not - rebuttal of statutory presumption - failure to pay the cheque amount when demanded through legal notice and thereby committed and offence punishable u/s. 138 of the Negotiable Instruments Act - section 397 read with section 401 of the Cr.P.C. - HELD THAT - It may be mentioned that in this case, the petitioner has not been able to demonstrate that the impugned orders suffer from any legal or factual error, or there was an abuse of the process of the Court, or that the petitioner was convicted by relying on any inadmissible evidence. Therefore, this case does not meet any of the parameters under which a concurrent finding by both the Courts below can be interfered with. Nonetheless, the merit of the case has also been examined in the process, which was to be otherwise examined only if the petitioner had filed a revision under section 397 read with section 401 of the I.P.C. The sentence against the petitioner to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.10,00,000/- (Rupees ten lakh only) under section 357 Cr.P.C. needs no interference because the petitioner has been able to dodge paying his lawful debt for more than 11 years. Criminal petition dismissed.
Issues Involved:
1. Validity of the conviction under Section 138 of the Negotiable Instruments Act, 1881. 2. Examination of evidence and procedural adherence. 3. Applicability of Section 360 Cr.P.C. and the Probation of Offenders Act, 1958. 4. Grounds for interference under Section 482 Cr.P.C. Detailed Analysis: 1. Validity of the Conviction under Section 138 of the Negotiable Instruments Act, 1881: The petitioner was convicted for issuing cheques that were dishonored due to the closure of the account. The trial court formulated the point of determination to assess whether the cheques were issued in discharge of a legally enforceable debt and whether the dishonor constituted an offense under Section 138 of the NI Act. The court relied on the evidence, including the agreement dated 29.03.2011, and the testimony of witnesses who confirmed the existence and terms of the agreement. The court held that the petitioner failed to rebut the presumption under Section 139 of the NI Act and concluded that the dishonor of cheques due to account closure was equivalent to dishonor for insufficiency of funds, thereby constituting an offense under Section 138. 2. Examination of Evidence and Procedural Adherence: The petitioner contested the evidence, arguing that the cheques were lost and that an FIR and a letter to the bank had been filed regarding the loss. However, the trial court discarded these documents (Ext.A and Ext.B) as they were not properly proved through the police personnel or the bank manager, and the petitioner failed to obtain prior leave to exhibit secondary evidence. The appellate court noted that the petitioner had admitted the evidence proving the offense and did not dispute the admission made before the appellate court. The court found no merit in the petitioner's grounds, including the lack of signatures on the first page of the agreement, as the signatures on the second page were deemed sufficient. 3. Applicability of Section 360 Cr.P.C. and the Probation of Offenders Act, 1958: The trial court considered and refused to grant the petitioner the benefit of Section 360 Cr.P.C. or the Probation of Offenders Act, 1958, due to the nature of the offense and the petitioner's failure to pay the lawful debt for over 11 years. The appellate court upheld this decision, finding no error in the trial court's judgment. 4. Grounds for Interference under Section 482 Cr.P.C.: The court emphasized that the power to interfere under Section 482 Cr.P.C. is limited to ensuring that the ends of justice are met and that there is no abuse of the process of the court. The petitioner raised twelve grounds to challenge the concurrent judgments, including errors in law, failure to appreciate evidence, and non-consideration of certain documents. However, the court found these grounds to be general, vague, and unsubstantiated. The court reiterated that the petitioner's admission before the appellate court negated any claim of error or illegality in the judgments. The court concluded that the impugned orders did not suffer from any legal or factual error, nor was there any abuse of the process of the court. Conclusion: The petition was dismissed, and the sentence of rigorous imprisonment for one year and a fine of Rs.10,00,000/- was upheld. The court found no merit in the petitioner's arguments and determined that the concurrent findings of the lower courts were justified and did not warrant interference. The petitioner had failed to demonstrate any grounds for setting aside the conviction and sentence.
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