2023 (11) TMI 716 - HC - Indian Laws

Dishonour of Cheque - insufficient funds - legally enforceable debt or not - accused denied the incriminating circumstances appearing in the evidence against him in the questioning under Section 313 of the Code of Criminal Procedure - HELD THAT - In the case at hand, admittedly, the accused was a Head Constable in the Kerala Police service. He has alleged that for the business purpose of his brother (DW2), he gave signed blank cheques to DW2, who had business transactions with Anilkumar. The said Anilkumar allegedly trespassed into DW2's shop and stole the cheques. Instead of complaining to the Police, DW2 issued Ext D1 lawyer notice to Anilkumar threatening to initiate proceedings. But no action is seen taken. It is making use of one of the stolen cheques, the complainant launched the prosecution. Therefore, there is no legally enforceable debt payable by the revision petitioner/accused to the first respondent/complainant. The courts below, after appreciating the materials on record, have concurrently concluded that the defence set up by the accused is highly improbable, especially taking into account the fact that he was a Police officer. If at all his cheque was stolen, he would have certainly initiated criminal proceedings. Instead, he remained silent and made his brother(DW2) to issue a lawyer notice to the said Anilkumar. There are no error, illegality or impropriety in the conclusions arrived at by the courts below to take a contrary view - the conviction and sentence passed by the courts below is confirmed - The revision petition is dismissed.

Summary

Issues involved:
The correctness and legality of judgments in Crl.A No. 684/2008 and S.T No. 161/2006 under Section 138 of the Negotiable Instruments Act.

Relevant facts:
The accused issued a cheque which got dishonoured due to insufficient funds, leading to a legal complaint. The Trial Court found the accused guilty and sentenced him, which was later modified by the Appellate Court.

Trial Court Judgment:
The accused was sentenced to imprisonment and fine for the offence under Section 138 of the N.I Act by the Trial Court.

Appellate Court judgment:
The Appellate Court confirmed the conviction but modified the sentence by reducing the substantive sentence and imposing a fine.

Key legal points:
The presumption of consideration under Sections 118(a) and 139 of the N.I Act was discussed, emphasizing the doctrine of 'reverse onus'. The accused's defense was analyzed regarding the existence of a legally enforceable debt.

Court's decision:
After considering the evidence and findings of the lower courts, the High Court confirmed the conviction and sentence, dismissing the revision petition. The accused was directed to appear before the Trial Court for sentence and fine payment.

Conclusion:
The High Court upheld the lower courts' decision, emphasizing the presumption in favor of the complainant under Section 139 of the N.I Act and the burden on the accused to rebut this presumption. The accused's defense was found improbable, leading to the confirmation of the conviction and sentence.