2023 (6) TMI 840 - HC - Indian Laws

Dishonour of Cheque - Rebuttal of presumption - discharge of burden to prove - main crux of argument is that once issuance of cheques are admitted, the presumption will come into picture and rebuttal evidence given by the accused in present case is insufficient - service of notice on proper address and drawing of presumption under Section 27 of the General Clauses Act - HELD THAT - It is true that all these presumptions are not conclusive presumptions but they are rebuttal presumptions. When we have considered the evidence given by the complainant in both the cases and common evidence given by the accused in both complaints, it is found that both the parties have taken upon themselves the burden to prove the fact pleaded by them. No doubt the complainant in this case can certainly rely upon the presumption under sections 118 and 139 of N.I. Act. The signature on both cheques is not disputed by the accused. What is disputed is the contents of cheques. When the accused has admitted his signature, he has given authority to the complainant to make cheques complete in all respect. It is true that if there is material alteration that is to say any alteration carried out without consent of the parties, it affects the validity of negotiable instrument as contemplated under section 87 of the N.I. Act - the signatures and amount in figures are of accused. So filling other details cannot be said to be material alteration. The burden on accused is not heavy as that of the complainant. The Court has to see whether probable case so as to create dent in case of the complainant has been made out or not. The law does not provides for contingency of adducing evidence by the complainant, after accused has adduced evidence. From the cross examination, the complainant has to forsee what type of case is pleaded by the accused. The complainant has failed to anticipate that contingency. So the beneficiary is none other than accused. Service of Notice - HELD THAT - The issue of service of notice is only of academic importance. It is true that the complainant could not state that the signature on acknowledgment belongs to accused. If the accused is available at the time of delivery and if she has signed, the complainant/sender of notice will be in position to identify the signature and not otherwise. But the address on the envelope is not disputed by the accused. So the presumption under section 27 of the General Clauses Act will certainly help the complainant. Both the sides have relied upon certain judgments on the point of manner of discharge of burden to prove service of notice - the complainant has not satisfied the material ingredients for the offence under section 138 of the N.I. Act. Appeal dismissed.

Summary

Issues Involved:
1. Whether presumption is rebutted by the accused directly or indirectly?
2. Whether that rebuttal evidence is only by way of denial or whether in fact it is sufficient to rebut the presumption?
3. Whether notice is served on the accused and whether this fact can be proved either by drawing presumption or on the basis of available evidence?
4. Whether it can be said that findings by the Appellate Court are perverse so that it can be interfered in the Appeal?

Summary:

Presumption and Rebuttal:
The complainant relied on the presumption under section 139 of the Negotiable Instruments Act, which assumes the existence of a legally recoverable debt or liability when a cheque is issued. The accused admitted issuing the cheques but claimed they were for a chit fund and not for discharging a debt. The trial court found the accused's denial insufficient to rebut the presumption, whereas the appellate court accepted the accused's defense, noting the complainant's failure to provide evidence of loan advancement. The appellate court emphasized that mere denial is not enough; the accused must provide sufficient rebuttal evidence.

Service of Notice:
The issue of whether the statutory notice was served on the accused was debated. The complainant could not confirm the accused's signature on the acknowledgment of the notice. However, the address on the envelope was not disputed, allowing the presumption under section 27 of the General Clauses Act to apply. Despite this, the appellate court's decision did not hinge on this point due to other findings.

Findings of the Appellate Court:
The appellate court highlighted several points:
- The complainant's financial capacity to lend the amount was questioned.
- Lack of detailed evidence about the loan advancement.
- The accused's claim that the cheques were issued for a chit fund was not effectively challenged by the complainant.
- The complainant admitted to filling in parts of the cheques, which the accused claimed were blank when issued.

Consideration by the High Court:
The High Court reviewed both judgments and noted that the trial court emphasized different aspects compared to the appellate court. The High Court agreed with the appellate court that the accused successfully rebutted the presumption under section 139 of the N.I. Act by providing a probable defense. The High Court also noted that the complainant failed to provide additional evidence to counter the accused's claims.

Conclusion:
The High Court found no perverse findings in the appellate court's judgment and concluded that the complainant did not satisfy the material ingredients for the offence under section 138 of the N.I. Act. The appeals were dismissed.