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2023 (9) TMI 1055 - HC - Indian LawsDishonour of cheque - legal and enforceable liability or not - failure to rebut the presumption under Section 139 of the N.I. Act - HELD THAT - In view of the overwhelming evidence produced at record by the accused-petitioners, their conviction on the part of the Trial Court and upholding of the same by the Appellate Court is absolutely unjustified. No doubt, presumption under Section 139 of the N.I. Act was available in favour of the complainant once the signatures on the cheques were admitted and that the cheques were issued for a legal and enforceable debt or liability, but the accused-petitioners were justified in their action of stopping the payment, inasmuch as the cheques were issued towards salary for the period, for which the complainant did not serve the company of the accused-petitioners and rather, served another company Skylark Securities Pvt. Ltd. Besides, complainant was found to have embezzled the amount payable for the salary of the guards regarding which FIR Ex.D2 was lodged against him. The impugned judgment of conviction and order of sentence as recorded by the Courts below are set aside. The petitioners stand acquitted of the charges. The present revision petition is hereby allowed.
Issues Involved:
1. Conviction under Section 138 of the Negotiable Instruments Act, 1881. 2. Defense of fraud and dual employment by the complainant. 3. Presumption under Section 139 of the N.I. Act and its rebuttal. Summary: Issue 1: Conviction under Section 138 of the Negotiable Instruments Act, 1881 In criminal complaint No. 110 of 2014, the petitioners were convicted under Section 138 of the Negotiable Instruments Act, 1881, by the Judicial Magistrate 1st Class, Gurugram, and sentenced to one month of simple imprisonment and ordered to pay double the cheque amount as compensation. This conviction and sentence were upheld by the Additional Sessions Judge, Gurugram, leading to the current revision petition. Issue 2: Defense of fraud and dual employment by the complainantThe petitioners argued that the payment of the cheques was stopped due to the complainant's fraudulent activities, including embezzlement of funds meant for staff wages and dual employment with Skylark Securities Pvt. Ltd. The complainant admitted to an FIR against him and acknowledged receiving a letter of intent from Skylark Securities Pvt. Ltd. The defense presented evidence, including testimony from DW1 Surender Yadav, HR Head of Skylark Securities Pvt. Ltd., and salary slips proving the complainant's employment with Skylark since November 2013. Additionally, DW2 ASI Jaipal testified about the complainant's embezzlement activities. Issue 3: Presumption under Section 139 of the N.I. Act and its rebuttalThe court noted that the presumption under Section 139 of the N.I. Act was in favor of the complainant, given the admitted signatures on the cheques. However, the court found that the petitioners successfully rebutted this presumption by proving that the cheques were issued for a period during which the complainant did not serve their company but was employed elsewhere. Furthermore, the complainant's failure to refute the allegations in the reply to the legal notice (Ex.P-6) weakened his case. Conclusion:The court concluded that the overwhelming evidence presented by the petitioners justified stopping the cheque payments. The impugned judgment of conviction and order of sentence were set aside, and the petitioners were acquitted of the charges. The revision petition was allowed, and the respondent-complainant was directed to refund the amount of Rs. 30,000 paid by the petitioners within 15 days.
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