9911796707
TMI Blog2025 (1) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... was not entitled to the entire sum of money, that is, Rs. 7,00,000/-. The learned MM noted that the person in whose favour the cheque was issued must be entitled to the cheque amount or must have some special authorization to file a complaint qua the cheque of other person. It was noted that the present complaint was not maintainable qua Manish Gupta and Bhumika Gupta. Consequently, the learned MM noted that since the complainant himself was not entitled to the entire cheque amount thereby making the cheque amount more than the liability owed by the respondent, the respondent was liable to be acquitted. It is undisputed that the respondent had entered into the agreement with the complainant, pursuant to which the subject cheque was issued to the complainant. The subject cheque, on presentation, dishonoured for the reason Funds Insufficient. Thus, all the ingredients to constitute an offence under Section 138 of the NI Act are met - The respondent was obligated to raise a probable defence in order to rebut the presumptions raised against him under Section 139 and 118 of the NI Act. Except for contentions that the complainant was not competent to file the complaint, and that the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the case of the complainant that the interest accrued @3% per month on the loan for a period up to December 2012 was paid by Akashdeep. It is alleged that thereafter the respondent assured to repay the sum of Rs. 7,00,000/-, and the complainant agreed to abandon the claim for interest with effect from January, 2013. It is the case of the complainant that it was agreed that should the respondent fail to make the payment of the loan amount in the manner as agreed then the complainant would be entitled to claim the entire interest due from January, 2013. 7. Subsequently, it is averred that the respondent issued a cheque bearing no. 449327 dated 20.02.2014 for a sum of Rs. 7,00,000/- in favour of the complainant. The said cheque, upon presentation, got dishonoured, and returned unpaid with the remarks Funds Insufficient vide return memo dated 24.02.2014. Subsequently, upon the non-payment of the amount despite the receipt of statutory notice, the complainant filed the present complaint. 8. The learned MM vide impugned judgment noted that the subject cheque belonged to the accused, was drawn on the account maintained by the accused, the same was dishonoured on presentation, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution under Section 138 of the NI Act could be made. The learned MM, therefore, acquitted the respondent of the offence under Section 138 of the NI Act. Aggrieved by the same, the complainant filed the present petition. 14. The learned counsel for the petitioner / complainant submitted that the learned MM erred in acquitting the respondent on the ground that the complaint was filed without any acceptable authorisation of the son-Manish Gupta, and daughter Bhumika Gupta. He submitted that there was no occasion for the complainant to file any power of attorney on behalf of his son/ daughter because the subject cheque was issued by the respondent in favour of the complainant, and the complainant alone was competent to file and prosecute the said complaint. 15. He submitted that the learned MM failed to take into consideration that the issuance of the cheque was admitted, and the same was also mentioned in the agreement dated 06.02.2014 duly entered into between the parties. He submitted that the learned MM erred in holding that the person in whose favour the cheque has been issued himself should be entitled for the sum of money for which the cheque has been issued, or there must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate court in an appeal against acquittal, this Court observed as follows : (SCC p. 221, para 36) 36. Careful scrutiny of all these judgments leads to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view ismore probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law. The principles aforesaid are not of much debate. In other words, ordinarily, the appellate court will not be upsetting the judgment of acquittal, if the view taken by the trial court is one of the possible views of matter and unless the appellate court arrives at a clear finding that the judgment of the trial court is perverse i.e. not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law. Such general restrictions are essentially to remind the appellate cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The court would then take an overall view based on the evidence on record and decide accordingly. 55. At the stage when the courts concluded that the signature had been admitted, the court ought to have inquired into either of the two questions (depending on the method in which the accused has chosen to rebut the presumption) : Has the accused led any defence evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail : Has the accused proved the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case ? xxx xxx xxx 57. Einstein had famously said: If I had an hour to solve a problem, I'd spend 55 minutes thinking about the problem and 5 minutes thinking about solutions. Exaggerated as it may sound, he is believed to have suggested that quality of the solution one generates is directly proportionate to one's ability to identify the problem. A well-defined proble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the NI Act is raised against the respondent and in favour of the complainant. It is pertinent to note that the presumptions under Section 118 and 139 of the NI Act are not absolute, and may be controverted by the accused. In doing so, the accused ought to raise only a probable defence on a preponderance of probabilities to show that there existed no debt in the manner so pleaded by the complainant in his complaint/ demand notice or the evidence. Once the accused successfully raises a probable defence to the satisfaction of the Court, his burden is discharged, and the presumption disappears. The burden then shifts upon the complainant, who then has to prove the existence of such debt as a matter of fact. The Hon ble Apex Court in Rajesh Jain v. Ajay Singh (supra), in this regard has observed as under: 41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words until the contrary is proved occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, the ground on which the respondent has been acquitted is that since the money was advanced by the complainant and his children, the complainant himself was not entitled to the entire sum of money, that is, Rs. 7,00,000/-. The learned MM noted that the person in whose favour the cheque was issued must be entitled to the cheque amount or must have some special authorization to file a complaint qua the cheque of other person. It was noted that the present complaint was not maintainable qua Manish Gupta and Bhumika Gupta. Consequently, the learned MM noted that since the complainant himself was not entitled to the entire cheque amount thereby making the cheque amount more than the liability owed by the respondent, the respondent was liable to be acquitted. 28. This Court has perused the record. The main thrust of the respondent s case is that the complainant did not have a written formal authorisation from his children to prosecute the case against the respondent, and that they failed to depose before the Court. Consequently, the cheque amount being more than the liability owed towards the complainant, the respondent was liable to be acquitted. 29. From a perusal of the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent had entered into the agreement dated 06.02.2014 with the complainant and his children. The agreement itself materialises the liability owed by the respondent towards the complainant and his children. It then goes on to mention that the respondent accordingly issued the subject cheque for a sum of Rs. 7,00,000/- in favour of the complainant. 31. From a perusal of the agreement, it is apparent that after admitting to the liability owed towards the complainant and his children, the respondent issued the subject cheque for a total sum of Rs. 7,00,000/- in favour of the complainant alone. Since the cheque was issued in the name of the complainant, and the respondent after being cognizant of the fact that the money was owed to the complainant and his children had issued the cheque in the name of complainant alone, the complainant was competent to file and prosecute the case against the respondent. 32. In terms of Section 142 of the NI Act, no court can take cognizance of any offence punishable under Section 138 of the NI Act except upon a complaint made in writing by the payee or the holder in due course of the cheque. In the present case, since the cheque for the entire sum of R ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
