2023 (11) TMI 671 - HC - Indian Laws

Dishonour of Cheque - discharge of legally enforceable debt or not - rebuttal of presumption u/s 139 of NI Act - HELD THAT - As the mode of advancing the amount to the revision petitioner was not a circumstance appearing in evidence against the revision petitioner, absence of a question in the 313 examination regarding the mode of payment will not in any way vitiate the trial. The revision petitioner if wanted to rebut the presumption under Section 139 of the N.I Act, he should have adduced cogent evidence for disproving the entry dated 27.09.2006 in Ext.P6 document. It is true that, the revision petitioner can even rely on the materials submitted by the complainant/1st respondent, in order to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, without adducing separate evidence of his own. In the case on hand, the materials and evidence on record adduced from the side of the 1st respondent are not capable of rebutting the presumption, in favour of the revision petitioner even by preponderance of probabilities. So he was bound to adduce evidence of his own so as to rebut the presumption but it was not done. Since the presumption stands unrebutted, this Court has to hold that, the appellate court rightly upheld the conviction of the revision petitioner under Section 138 of the N.I Act, and sentenced him to undergo imprisonment till rising of the court and to pay fine of Rs. 4 lakh and in default to undergo simple imprisonment for two months, with a further direction that if the fine amount is realised, it will be paid to the 1st respondent as compensation under Section 357(1) of Cr.P.C. The revision petition is dismissed, upholding the impugned judgment in Crl. Appeal No. 213 of 2009. The revision petitioner is directed to surrender before the trial court on or before 28.11.2023 to receive the sentence and to pay the fine amount. In default, the trial court has to issue arrest warrant against the revision petitioner for executing the sentence.

Summary

Issues Involved:
1. Legally enforceable debt under Section 138 of the Negotiable Instruments Act.
2. Validity of the cheque and presumption under Section 139 of the N.I Act.
3. Procedural fairness under Section 313 of Cr.P.C.

Summary:

1. Legally enforceable debt under Section 138 of the Negotiable Instruments Act:
The accused (revision petitioner) was convicted under Section 138 of the N.I Act by the Judicial Magistrate of First Class, Kothamangalam, which was upheld by the Additional Sessions Judge (Adhoc-I), Ernakulam. The case involved a cheque issued by the accused for Rs. 4 lakh, which was dishonored due to insufficient funds. The trial court sentenced the accused to six months of simple imprisonment and a compensation of Rs. 4 lakh with interest. The appellate court reduced the imprisonment to one day till rising of the court but maintained the fine amount.

2. Validity of the cheque and presumption under Section 139 of the N.I Act:
The accused claimed that the cheque was issued as a blank security cheque for a vehicle loan and was misused by the complainant. However, the court found no evidence to support this claim. The Bank statement (Ext.P6) confirmed the payment of Rs. 4 lakh to the accused, substantiating the complainant's case. The court cited the Supreme Court's decision in Bir Singh v. Mukesh Kumar, stating that a signed blank cheque given voluntarily can be filled by the payee, and the onus to rebut the presumption under Section 139 lies on the accused. The accused failed to provide cogent evidence to rebut this presumption.

3. Procedural fairness under Section 313 of Cr.P.C:
The accused argued that the trial was vitiated due to the Magistrate's failure to put all incriminating circumstances to him during the 313 examination. The court held that the mode of payment (cash or cash cheque) was not an incriminating circumstance that needed to be put to the accused during the 313 examination. The court emphasized that the presumption under Section 139 of the N.I Act stood unrebutted as the accused did not provide sufficient evidence to disprove the transaction.

Conclusion:
The High Court dismissed the revision petition, upholding the appellate court's judgment. The revision petitioner was directed to surrender before the trial court to receive the sentence and pay the fine amount by 28.11.2023. The Registry was instructed to transmit the case records to the trial court for execution of the sentence.