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2024 (2) TMI 1075 - HC - Indian LawsDishonour of Cheque - offence under Section 138 of N.I. Act has been proved beyond all reasonable doubt or not - Rebuttal of presumptions - Whether this Court while sitting as a Revisional Court, in the absence of perversity, would upset the concurrent findings of facts? - HELD THAT - It is well settled that while sitting in a revisional jurisdiction, this Court cannot re-analyze or re-interpret or re-appreciate the evidence on record. It is also to be kept in mind that the Revisional Court will not interfere, even if, a wrong order is passed by the Court having jurisdiction, in the absence of jurisdictional error, as held in the case of SOUTHERN SALES SERVICES ORS. VERSUS SAUERMILCH DESIGN HANDELS GMBH 2008 (10) TMI 696 - SUPREME COURT . Since the signature on both the cheques is admittedly of the Accused, the principles laid down by the Apex Court in the case of HITEN P. DALAL VERSUS BRATINDRANATH BANERJEE 2001 (7) TMI 1172 - SUPREME COURT shall come into effect, wherein it is held that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. It is now well settled that Section 139 of the N.I. Act introduces an exception to the general rule as to the burden of proof and shifts the onus on to the Accused. The presumption under Section 139 of the N.I. Act is a presumption of law, as distinguished from the presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the Prosecution to prove the case against the Accused beyond reasonable doubt - The burden of proof was however on the person who wanted to rebut the presumption. The presumption arrived in favour of the Applicant under Section 139 of the N.I. Act has not been rebutted successfully by the Applicant though he entered into the witness box and thus, the findings given by both the Courts below cannot be faulted with. The Revision must fail and hence, the same stands rejected.
Issues Involved:
1. Validity of the complaint filed without producing the Power of Attorney (PoA). 2. Compliance with the notice requirements under Section 138 of the N.I. Act. 3. Rebuttal of the presumption under Section 139 of the N.I. Act by the Accused. 4. Authorization of the Company representative to file the complaint. 5. Admissibility and authenticity of the resolution produced subsequently. 6. Procedural defects and their impact on the complaint's validity. Summary of Judgment: Issue 1: Validity of the Complaint Filed Without PoA The Applicant argued that the complaint was filed by a Company through its duly constituted Attorney without producing such PoA. The Court found that the complaint was lodged by the Company through its Director, who was authorized by a resolution of the Board of Directors, which was subsequently produced and accepted. The Court held that the broader meaning of "constituted Attorney" could include a person authorized by a Board resolution, and thus, the complaint was valid. Issue 2: Compliance with Notice Requirements The Applicant contended that the notice was not issued by the payee and was not properly served. The Court noted that the notice was on the Company's letterhead and signed by a Consultant, which was sufficient to meet the notice requirement. The Court also referred to the precedent that even if the notice was not properly served, the Applicant had an opportunity to pay the amount after receiving the summons from the Court, which he failed to do. Issue 3: Rebuttal of Presumption under Section 139 The Applicant claimed to have rebutted the presumption under Section 139 by showing discrepancies in the evidence and leading defense evidence. However, the Court found that the Applicant admitted to issuing the cheques and receiving the amount in question. The Court held that the Applicant failed to rebut the presumption successfully and the findings of the lower Courts were upheld. Issue 4: Authorization of Company Representative The Applicant argued that the complaint was not maintainable as the representative did not have proper authorization. The Court found that the representative was authorized by a resolution passed before filing the complaint, which was produced during the trial. The Court held that procedural defects, such as the absence of initial authorization, could be cured during the trial. Issue 5: Admissibility and Authenticity of the Resolution The Applicant claimed that the resolution produced was fabricated. The Court found no evidence to support this claim and held that the resolution was valid and properly authorized the representative to file the complaint. Issue 6: Procedural Defects The Court emphasized that procedural defects and irregularities, which are curable, should not defeat substantive rights or cause injustice. The Court held that the lower Courts rightly allowed the Company to cure such defects during the trial. Conclusion The Court rejected the Revision Petition, upholding the conviction and sentence of the Applicant under Section 138 of the N.I. Act. The procedural defects raised by the Applicant were found to be curable, and the presumption under Section 139 was not successfully rebutted by the Applicant. The findings of the lower Courts were affirmed as neither perverse nor illegal.
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