2022 (9) TMI 1153 - HC - Indian Laws

Dishonor of Cheque - existence of legally enforceable debt or not - Civil wrong or not - burden to prove - section 138 of NI Act - HELD THAT - A perusal of the facts show that the cheque in question was issued on 08.10.2014 and it was dishonoured on the third day i.e. on 10.10.2014. It is a matter of record that there is no agreement between the parties for execution of any work. No bill is produced by the petitioner qua incurring any expenditure in execution of the contract. The respondent has successfully discharged the onus to prove that there was no admitted liability against her. There is no evidence on record to establish that there was any legal debt or liability against the respondent/accused. The learned Appellate Court has found that the agreement for providing services was terminated immediately and, therefore, the demand was made for return of the cheque to the petitioner/ revisionist. The Appellate Court has rightly found that the judgment on conviction and sentence was unsustainable and, therefore, the same has rightly been set-aside. This court does not find any merit in the submissions made by learned counsel for the petitioner and therefore, this revision stands dismissed. Both the revision petitions are hereby dismissed.

Summary

Issues involved:
1. Appeal against the order dismissing the appeal for enhancement of sentence.
2. Appeal against the order allowing the appeal against conviction under Section 138 of the Negotiable Instruments Act.

Analysis:
1. The revision under Section 397 read with Section 401 of the Code of Criminal Procedure challenged the order dismissing the appeal for enhancement of sentence. The petitioner, a private limited company, claimed that the respondent placed an order for stall fabrication work but the cheque for payment was dishonored. The Magistrate convicted the respondent under Section 138 of the NI Act and sentenced her to imprisonment and compensation. The respondent appealed, and the Appellate Court set aside the conviction and sentence, concluding there was no evidence of liability. The High Court upheld the Appellate Court's decision, stating the respondent proved no admitted liability, and the demand for the cheque's return was justified. The revision for enhancement of sentence was dismissed as the conviction and sentence were set aside.

2. The second revision involved an appeal against the order allowing the appeal against conviction under Section 138 of the NI Act. The petitioner argued that the respondent changed her defense during proceedings, creating inconsistencies. However, the High Court noted the absence of an agreement or evidence of work execution, leading to the respondent successfully proving no liability. The Appellate Court rightly set aside the conviction and sentence, finding them unsustainable. The High Court dismissed the revision, affirming the Appellate Court's decision. Both revision petitions were ultimately dismissed based on the lack of merit in the petitioner's submissions.