2022 (11) TMI 88 - HC - Indian Laws

Dishonor of Cheque - legally enforceable debt - rebuttal of presumptions in favour of the complainant under Sections 118 and 139 of N.I. Act - modification of sentence of imprisonment to fine - HELD THAT - On a perusal of the record, the Trial Court observed that the accused was not disputing his signature on the cheque, as such, the presumption envisaged under Section 118 of N.I. Act that the cheque was drawn for consideration on the date which the cheque bore, and Section 139 of N.I. Act would enjoin on the Court to presume that the holder of the cheque received it for the discharge of debt or liability and that the accused failed to adduce any probable defence to show that he had not received money from the complainant and failed to adduce rebuttal evidence to discharge the burden laid upon him and did not place any iota of evidence under what circumstances the cheques were issued to the complainant, and held that the offence under Section 138 of N.I. Act was proved against the accused. When the matter is taken up for hearing on 23.08.2022, learned counsel for the revision petitioner / accused stated that the revision petitioner / accused was ready to pay the amount of Rs.2,25,000/- as agreed before the Court on 04.02.2022. But the learned counsel for the respondent / complainant stated that the complainant is not ready for compromise as the accused had not produced the Demand Draft even on the said date. Considering the object of the Act, it is considered fit to modify the sentence of imprisonment to fine and to pay the same as compensation to the complainant for the amount directed by this Court on 04.02.2020. As the revision petitioner / accused reported ready to pay the amount as suggested by this Court on 04.02.2020, and as stated by the Hon ble Apex Court in Meters and Instruments Private Limited 2017 (10) TMI 218 - SUPREME COURT that though compounding requires consent of both parties, even in the absence of such consent, the Court, in the interest of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused, the Criminal Revision Case is dismissed on condition of the revision petitioner / accused to produce the Demand Draft for an amount of Rs.2,25,000/- within a week from the date of pronouncement of order. Revision closed.

Issues Involved:
1. Legally enforceable debt.
2. Proof of debt and evidence.
3. Service of legal notice.
4. Concurrent findings of lower courts.
5. Sentence and compensation.

Detailed Analysis:

1. Legally Enforceable Debt:
The revision petitioner contended that the amount covered under the cheque was not a legally enforceable debt. However, the trial court observed that the accused did not dispute his signature on the cheque, invoking the presumption under Section 118 of the N.I. Act that the cheque was drawn for consideration. Additionally, Section 139 of the N.I. Act presumes that the holder of the cheque received it for the discharge of debt or liability. The accused failed to provide any probable defense to rebut these presumptions.

2. Proof of Debt and Evidence:
The petitioner argued that no proof was filed to support the debt and no evidence was led on that aspect. The trial court considered the oral and documentary evidence, including the presumptions in favor of the complainant under Sections 118 and 139 of the N.I. Act. The court noted that the accused did not adduce any evidence to rebut the presumption or explain the circumstances under which the cheques were issued. The appellate court upheld this finding, confirming that the cheque was drawn for consideration and received for the discharge of a debt or liability.

3. Service of Legal Notice:
The accused contended that the legal notice was not served upon him. The trial court, referring to Section 27 of the General Clauses Act, presumed that the notice was delivered to the addressee as it was sent correctly. The appellate court also observed that the complainant made full efforts to serve the notice, and the returned cover endorsed as "unclaimed" indicated sufficient service. The court rejected the contention that the complainant failed to issue statutory legal notice.

4. Concurrent Findings of Lower Courts:
Both the trial court and the appellate court found the accused guilty under Section 138 of the N.I. Act. The appellate court, relying on precedents from the Hon'ble Apex Court and the High Court of Andhra Pradesh, confirmed the guilt of the accused. The Hon'ble Apex Court in Bir Singh vs. Mukesh Kumar emphasized that the High Court should not upset concurrent factual findings in the absence of perversity. The courts below consistently found that the cheque was signed by the accused and drawn for consideration.

5. Sentence and Compensation:
The trial court sentenced the accused to simple imprisonment for one year and a fine of Rs.10,000/-. The appellate court confirmed this sentence. However, considering the object of the N.I. Act and the decisions of the Hon'ble Apex Court, the High Court modified the sentence to a fine, directing the accused to pay Rs.2,25,000/- as compensation to the complainant. The court noted that the object of the Act is both punitive and compensatory, and in the interest of justice, the proceedings could be closed if the complainant is duly compensated. The court ordered the accused to produce a Demand Draft for Rs.2,25,000/- within a week, failing which he would undergo the sentence of imprisonment as affirmed by the lower appellate court.

Conclusion:
The High Court dismissed the Criminal Revision Case, confirming the guilt of the accused under Section 138 of the N.I. Act. However, it modified the sentence to a fine, directing the accused to pay Rs.2,25,000/- as compensation to the complainant. The court emphasized the compensatory objective of the N.I. Act and allowed for the closure of proceedings upon satisfactory compensation to the complainant.

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