2023 (8) TMI 3 - HC - Indian Laws

Dishonour of Cheque - false and fabricated cheque - discharge of legally enforceable debt or not - source of income not proved - loans not reflected in ITR - HELD THAT - This court is of the opinion that the complainant has failed to prove his source of income. It is evident from the record that during the cross-examination in the court below the complainant had stated that he had filed two numbers of NI case against the accused person namely Prakash Tripura for an amount of Rs. 4,60,000 and Rs. 2,00,000/-. The complainant also states that he is a businessman by profession and earning Rs. 10,000/- to Rs. 20,000/- per month approximately. He also lodged one number of NI case against Pranab Chowdhury for an amount of Rs. 3,00,000/-. He also admitted that he is not any income tax payee. This court finds it hard to believe if a person is earning barely Rs. 10,000 to Rs. 20,000/- per month what makes him able to advance a sum of Rs. 9,60,000/- in couple of days. Further, it is unreasonable to belief as to giving loan of huge sum to a person coming to have Xerox copy. No transaction is established to consider the cheque amount as legally enforceable debt. Moreover, the citations referred by Mr. D. Sarkar, learned counsel for the appellant is of no relevance to the present context of the case. This court feels that the capacity to advance loans to the accused persons has not been established by the complainant and the alleged loans was not reflected in the ITR by the complainant. The defence of the accused persons that they had not taken any loan from the complainant and signing the blank cheque as security for loans of lesser amount has been subsequently filled up for an inflated amount and misused in filing the present complaint seems quite probable. This Court is of the view that the appellant has failed to prove his projected case against the accused persons and consequently, the instant appeal preferred by the appellant stands dismissed.

Summary

Issues Involved:
1. Legally enforceable debt or liability under Section 138 of the NI Act.
2. Rebuttal of the presumption under Section 139 of the NI Act.
3. Capacity of the complainant to advance the loan.
4. Validity of the trial court's judgment and order of acquittal.

Summary:

Legally Enforceable Debt or Liability:
In both appeals, the complainant-appellant alleged that the accused borrowed money and issued cheques which were subsequently dishonoured due to "Insufficient funds." The complainant issued legal demand notices, which were received by the accused, but no payment was made, leading to the filing of the present cases under Section 138 of the NI Act.

Rebuttal of Presumption:
The trial court required the complainant to prove the elements of Section 138, including that the cheques were drawn for legally enforceable debts. The accused pleaded not guilty, claiming the cheques were false and fabricated. The trial court found that the accused successfully rebutted the presumption of law in favor of the complainant, leading to their acquittal.

Capacity to Advance the Loan:
The complainant's capacity to advance the loans was questioned. The court noted the complainant's income and lack of income tax returns reflecting such large transactions. The defense argued that the complainant took signed blank cheques from the accused and filled them with inflated amounts. The court found this defense probable and credible.

Validity of Trial Court's Judgment:
The High Court reviewed the trial court's judgment and the evidence on record. It was noted that the complainant failed to prove his source of income and the capacity to lend the amounts in question. The court found no reason to interfere with the trial court's judgment of acquittal, affirming the orders dated 07.06.2022 and 06.06.2022.

Conclusion:
The appeals were dismissed, and the orders of acquittal were affirmed. The court emphasized the complainant's failure to establish a legally enforceable debt and the accused's successful rebuttal of the presumption under Section 139 of the NI Act.