2024 (2) TMI 1011 - HC - Indian Laws

Dishonour of Cheque - legally enforceable debt or not - no evidence to that effect has been adduced on behalf of the petitioner-convict to rebut the presumption under Sections 118 and 139 of the N.I. Act - HELD THAT - In the case in hand the petitioner/ convict/ accused has admitted his signature on the cheque and stated that the same were taken from him by the complainant in good faith being on friendly relation. The complainant has stated that both these cheques were issued by the accused to discharge the liability of the payment of Rs. 20 lakhs, which was paid by him to purchase the land; but the same land was sold by the accused to any other person though there is no written document to this effect only the oral evidence has been adduced by the complainant examining himself as C.W.-1. This oral evidence is not rebutted by the petitioner/ accused/ convict by adducing evidence even to rebut the presumption under Section 118 and 139 of the N.I. Act. Though the petitioner/ accused/ convict, in cross-examination of complainant C.W.-1, this question was put up that no income tax return was filed by the complainant; but the same fact is not rebutted by the accused/ convict/ petitioner by adducing evidence in rebuttal. The Hon ble Apex Court in the case of Oriental Bank of Commerce Vs. Prabodh Kumar Tewari 2022 (9) TMI 264 - SUPREME COURT held that drawer of a cheque is liable even if details of the cheque was filled by some other person in writing; the experts opinion cannot rebut the presumption under Section 139 of the N.I. Act. The Hon ble Apex Court in the case of Yogesh Jain Vs. Sumesh Chandra 2022 (10) TMI 1198 - SUPREME COURT held that once the cheque is issued and upon getting dishonored statutory notice is issued, it is accused to dislodge the legal presumption available under Section 118 and 139 of the N.I. Act. In order to rebut both these presumptions on behalf of the convict petitioner, no oral or documentary evidence was adduced. The only defence, which has been taken by the petitioner-convict during trial was that the cheques were issued in good faith because of friendship of him with the complainant. This suggestion was also given that in regard to sale of the land, no document was executed and there was no alleged liability for issuance of cheques. To this effect, on behalf of the petitioner-convict, no evidence has been adduced to rebut both the presumption sunder Sections 118 and 139 of the N.I. Act and also the evidence adduced by the complainant oral and documentary even on the touchstone of preponderance of probabilities - In view of the complaint case, the same is found to be proved beyond reasonable doubt. Accordingly, this point of determination is decided in favour of the opposite party No. 2 and against the petitioner/ convict. The impugned order passed by the learned trial Court, which was affirmed by the learned Appellate Court needs no interference and this Criminal Revision deserves to be dismissed - revision dismissed.

Summary

Issues Involved:
1. Legality of the complaint filed by the complainant.
2. Issuance of cheques by the petitioner for a legally recoverable debt or liability.
3. Rebuttal of presumptions under Sections 118 and 139 of the N.I. Act.

Summary:

Issue 1: Legality of the Complaint
The primary issue was whether the complaint filed by the complainant was legally maintainable. The court examined the procedural aspects and found that the complaint was filed within the statutory period. The cheques were presented within six months from the date of issuance, and the legal notice was sent within 30 days of the cheques being dishonored. The complaint was filed within the prescribed period of 30 days from the date of arising cause of action, thus making it legally maintainable.

Issue 2: Issuance of Cheques by the Petitioner
The petitioner contended that the cheques were never issued for any legally recoverable debt or liability and that no transaction regarding the sale of land took place. The petitioner claimed that the cheques were taken in good faith and were blank when handed over. However, the complainant provided evidence, including the cheques, return memos, and legal notice, to support the claim that the cheques were issued for the discharge of a debt. The court found that the complainant's evidence proved beyond reasonable doubt that the cheques were issued for a legally enforceable debt.

Issue 3: Rebuttal of Presumptions under Sections 118 and 139 of the N.I. Act
The court highlighted the statutory presumptions under Sections 118 and 139 of the N.I. Act, which presume the existence of a legally enforceable debt or liability unless proven otherwise. The petitioner admitted to signing the cheques but failed to provide any evidence to rebut these presumptions. The court referred to several precedents, including the Hon'ble Apex Court's rulings, which established that the burden of proof lies on the accused to rebut the presumptions. The petitioner did not produce any oral or documentary evidence to disprove the complainant's claims, thus failing to rebut the presumptions.

Conclusion:
The court concluded that the complaint was legally maintainable, the cheques were issued for a legally recoverable debt, and the petitioner failed to rebut the statutory presumptions. Consequently, the criminal revision was dismissed, affirming the judgments of the trial and appellate courts, which convicted the petitioner under Section 138 of the N.I. Act and sentenced him to one year of rigorous imprisonment and a compensation payment of Rs. 24,00,000/- to the complainant.