2024 (9) TMI 171 - HC - Indian Laws

Dishonour of Cheque - Seeking leave to appeal for setting aside of the judgment - burdenn of proving - Section 138 of NI Act - HELD THAT - The respondent has not denied that the cheques in question belong to him, however, he has denied his signature(s) thereon. In fact, the respondent has neither admitted to the issuance of the cheques in question nor his signature(s) at any stage, be it at the time of framing of notice under Section 251 of the CrPC or at the time of recording of his statement under Section 313 of the CrPC or at the time of producing his evidence. It was incumbent upon the petitioner to discharge the initial burden of proving the issuance of the cheques in question. Besides this, the petitioner, for reasons best known to himself, chose not to examine any other independent witnesses barring himself, especially none of the concerned Bank officials. The cheques in question are themselves shrouded in mystery as there is no clarity qua the facets of as to firstly, who had filled them, secondly, when were they issued and lastly, where were they issued. In essence thereof, as the petitioner was unable to discharge the statutory burden cast upon him, there was no occasion for the presumption under Section 139 of the NI Act arising in his favour. The petitioner was unable to prove anything as regards to his alleged long standing friendly relations with the respondent or as regards any cogent reasons for him allegedly extending an amount of Rs.15,00,000/- to the respondent. Further, the petitioner has not been able to provide any reasonable explanation as to why and based upon what relationship, he had advanced the huge sum of Rs.15,00,000/- to the respondent without taking any receipt or acknowledgment thereof - the respondent, indeed raised a probable defence and was steadfast is his version all throughout, from his response to the legal notice till the proceedings before the learned Trial Court. Also, the respondent had already lodged a Police complaint qua the various documents including the cheques in question being lost much prior to the issuance of the cheques in question. Further, during cross-examination, the respondent had himself called a Bank official, who had indeed deposed that the property papers were in fact deposited in the Bank. This Court finds that the impugned order passed by the learned Trial Court is well reasoned and balanced as it has carefully taken note of all the factors necessary for deciding a complaint under Section 138 of the NI Act and has accordingly adjudicated upon the present dispute. Petition dismissed.

Summary

Issues:
Petitioner seeking leave to appeal judgment under Section 138 of NI Act.

Analysis:
The petitioner filed a leave petition under Section 378(1) of the CrPC to appeal the judgment acquitting the respondent under Section 138 of the NI Act. The petitioner claimed to have lent Rs.15,00,000 to the respondent, who issued two post-dated cheques in return. The cheques were dishonored, leading to a legal notice and subsequent complaint under Section 138 NI Act. The Court issued notices, heard arguments, and reserved judgment.

The petitioner argued compliance with all procedural formalities, emphasizing the presumption in their favor under settled legal principles. The respondent, on the other hand, contested the existence of a legally enforceable debt, the petitioner's financial capacity, and their relationship. The respondent claimed no involvement with the petitioner, citing a theft report involving the cheques. The respondent argued that the essential elements of Section 138 NI Act were not satisfied, seeking dismissal of the petition.

The Court outlined the essential ingredients for an offense under Section 138 NI Act, emphasizing the need for an existing debt, valid presentation, dishonor, and legal notice. The judgment highlighted the presumption under Section 118(a) and 139 of the NI Act, shifting the burden accordingly. The Court noted the petitioner's failure to prove the issuance of cheques, absence of independent witnesses, and inconsistencies in the case. The respondent presented a consistent defense, including a police report on the missing cheques, supporting their version.

Ultimately, the Court found the Trial Court's order well-reasoned, considering all aspects of the case. The judgment concluded that the petitioner failed to discharge the burden of proof, leading to the dismissal of the petition and application. The Court upheld the Trial Court's decision, emphasizing the importance of evidence and legal requirements in cases under Section 138 of the NI Act.