2024 (1) TMI 3 - HC - Indian Laws

Dishonour of Cheque - acquittal of accused - accused failed to make the payment despite the receipt of the notice - presumption of consideration under Section 139 of the Negotiable Instruments Act - burden lies upon the accused to rebut the presumption - HELD THAT - The complainant filed an application to prove the Income Tax Returns submitted by him. The return for the year 2009-2010 was submitted on 16.03.2010 as per the endorsement made on the acknowledgement. He had filed the complaint on 11.03.2010, hence, the Income Tax Return came into existence after filing of the complaint during its pendency - The application has been filed under Section 311 of Cr.P.C. however, the application is in the nature of additional evidence to prove the additional record mainly the Income Tax Return and will properly fall within the definition of Section 391 of Cr.P.C. It was laid down by the Hon'ble Supreme Court in ASHOK TSHERING BHUTIA VERSUS STATE OF SIKKIM 2011 (2) TMI 1539 - SUPREME COURT that the power to receive additional evidence must be exercised sparingly in those cases where the Court is satisfied that additional evidence would serve the interest of justice. Since no plausible reason has been assigned for not producing the additional evidence before the learned Trial court; therefore, it is impermissible to lead the additional evidence in the appeal. Consequently, the present application fails and the same is dismissed. The complainant did not examine these persons. Thus, the learned Trial Court had rightly doubted the financial capacity of the complainant and had rightly held that the presumption contained in Section 139 of the Negotiable Instrument Act was rebutted. This was a reasonable view taken by the learned Trial Court - the submission that the learned Trial Court had wrongly held that the presumption under Section 139 of the NI Act was rebutted is not acceptable. The judgment passed by the learned Trial Court was a reasonable one and no interference is required with the same - the present appeal fails and the same is dismissed.

Summary

Issues Involved:
1. Whether the cheque issued by the accused was in discharge of a legal liability.
2. Whether the complainant had the financial capacity to lend the amount.
3. Whether the handwriting expert's report was admissible.
4. Whether the trial court erred in dismissing the complaint.

Issue-wise Summary:

1. Cheque in Discharge of Legal Liability:
The trial court held that the cheque carries a presumption of consideration under Section 139 of the Negotiable Instruments Act, placing the burden on the accused to rebut this presumption. The accused claimed the cheque was issued for Rs. 10,000 and was tampered with, a claim corroborated by the handwriting expert's report indicating that the figure '3' was added subsequently.

2. Financial Capacity of the Complainant:
The trial court found that the complainant's annual income was Rs. 2,50,000, with an Income Tax Return of Rs. 1,70,000, and no documentary evidence proving the financial capacity to lend Rs. 3,10,000. It was deemed improbable that the complainant would lend money borrowed from friends, thus dismissing the complaint.

3. Admissibility of Handwriting Expert's Report:
The trial court relied heavily on the handwriting expert's report, which was not admissible without the expert's examination. This was an error as per the precedent in State of Himachal Pradesh vs. Anoop Kumar, which requires the expert's opinion to be proved in accordance with the law.

4. Trial Court's Dismissal of the Complaint:
The appellate court emphasized the presumption under Section 139 of the NI Act, which the accused must rebut. The trial court's view was deemed reasonable, considering the complainant's financial incapacity and the improbability of lending such an amount. The appellate court found no reason to interfere with the trial court's judgment, affirming that it was a reasonable view.

Conclusion:
The appeal was dismissed, upholding the trial court's judgment that the presumption under Section 139 of the NI Act was rebutted and the complainant failed to prove his financial capacity to lend the amount in question.