2024 (10) TMI 319 - HC - Indian Laws

Dishonour of Cheque - Conviction under Section 138 of Negotiable Instruments Act - Presumptions under Section 118 and Section 139 of Negotiable Instruments Act - Burden to prove - invocation of revisional jurisdiction - HELD THAT - It is a trite law under Section 139 of the Negotiable Instruments Act that the Court must presume unless the contrary is proved, that the holder of a cheque received the cheque for discharge, in whole or in part, of the debt or liability. It is also well settled that in complaints under Section 138 of Negotiable Instruments Act, the Court must presume that the cheque had been issued for a debt or liability, however, this presumption is repeatable. The burden of proof that cheque has not been issued for a debt or liability is on the accused. The petitioner/accused has failed to prove that cheque was not signed by him, in these circumstances, it is to be presumed that the cheque had been made for consideration and the holder of the cheque received the cheque for discharge in whole or in part of debt or liability. Mere on the ground that the earlier Manger has been transferred and the witness who has been examined by respondent-Bank did not have personal knowledge about the transaction, it cannot be said that the respondent-Bank has failed to prove its case because the witness has proved all relevant documents in respect to transaction between the petitioner/accused and the Bank including the cheque issued by petitioner/accused. It is well settled that while exercising the revisional jurisdiction, findings of fact recorded by lower court should only be intervened when the same is perverse. The revisional court should not appreciate or re-appreciate the evidence. In this case, there is concurrent findings of two Courts below based on appreciation of evidence in respect to the basic ingredients of offence under Section 138 of Negotiable Instruments Act. The defense of the petitioner has not been proved, therefore, learned Courts below have not erred in convicting the petitioner under Section 138 of Negotiable Instruments Act. The present criminal revision fails and is hereby dismissed.

Issues:
1. Conviction under Section 138 of Negotiable Instruments Act.
2. Appeal against the conviction and sentence.
3. Allegations of false implication and lack of evidence.
4. Examination of witnesses and documentary evidence.
5. Burden of proof on the accused.
6. Presumptions under Section 118 and Section 139 of Negotiable Instruments Act.
7. Judicial review of lower court's findings.

Analysis:

The judgment pertains to a criminal revision filed against the conviction under Section 138 of Negotiable Instruments Act. The petitioner was convicted and sentenced to six months rigorous imprisonment and a fine of Rs. 12,87,874 for dishonoring a cheque issued to UCO Bank. The petitioner had applied for a Kisan Credit Card and a term loan, which he failed to repay, leading to the legal action by the bank. The lower courts found the petitioner guilty based on the evidence presented by the bank, including witness testimony and documentary evidence.

The petitioner alleged false implication and lack of evidence, arguing that the bank failed to prove the offense under Section 138. However, the courts found the bank's evidence to be credible and uncontradicted. The defense of false implication was not substantiated by the petitioner, as he did not present any witnesses or documents in support of his defense. The courts held that the petitioner's defense was not proven beyond reasonable doubt.

The judgment discussed the legal presumptions under Section 118 and Section 139 of the Negotiable Instruments Act. It emphasized that unless the contrary is proved, the court must presume that the cheque was issued for a debt or liability. The burden of proof that the cheque was not issued for a debt or liability lies on the accused. In this case, the courts found that the petitioner failed to prove that the cheque was not issued for a debt, leading to the presumption that it was issued for consideration.

The judgment highlighted that the lower courts' findings should only be interfered with if they are perverse. The revisional court should not re-appreciate the evidence but should review if the basic ingredients of the offense are established. In this case, the courts found that the petitioner's defense was not substantiated, and the evidence presented by the bank was sufficient to establish the offense under Section 138. Therefore, the criminal revision was dismissed, upholding the conviction and sentence imposed on the petitioner.

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