2018 (10) TMI 104 - HC - Indian Laws

Appellate court affirms conviction under Section 138, stresses evidence in cheque bounce cases.

The appellate court upheld the conviction under Section 138 of the Negotiable Instruments Act, dismissing the appeal and modifying the sentence to order ... Dishonor of Cheque - Section 138 of Negotiable Instruments Act - When the cheque was presented for collection, the same was returned with an endorsement 'no such account'. The statutory notice was issued to the respondent, but he had not replied for the same. Held that:- The revision petitioner having failed to respond to the notice, only during the trial has pleaded about the new fact and about different transaction between him and one Peyathevar, wherein his friend Nallathambi was also involved. The deposition of Peyathevar recorded in the suit filed by Peyathevar against the revision petitioner/accused, will not have any bearing to decide the defence raised by the revision petitioner - The deposition of the accused in that proceeding is a self serving statement of the accused in the civil proceedings between him and one Peyathevar, that cannot be a piece of evidence to be put against the complainant, who is not a party to that proceeding and who had no opportunity to cross examine the deponent. Therefore it has no evidential value for any consideration, in the absence of confronting the same with the maker of the statement. The revision petitioner in the cross examination has admitted the signature in the cheque and the receipt of the statutory notice. He has also admitted that he has not lodged any complaint against the Peyathevar or Latcaham/complainant regarding this subject cheque - In the said circumstances this Court finds no error or illegality in the judgments passed by the Courts below. Considering the above facts and circumstances, this Court is of the opinion that in respect of sentence, in lieu of imprisonment for three months and fine of ₹ 3,000/- the revision petitioner/accused, shall pay compensation of ₹ 1,00,000/- to the respondent/ complainant within a period of sixty days from the date of order. Criminal Revision Case is disposed of subject to certain modifications. Issues involved:Concurrent findings under Section 138 of Negotiable Instruments Act challenged in criminal revision case.Analysis:1. Borrowing and issuance of cheque: The petitioner borrowed money from the respondent and issued a cheque to discharge the debt. The cheque was returned, leading to a complaint under Section 138 of the Negotiable Instruments Act. The trial court convicted the petitioner based on evidence presented.2. Defence raised in appeal: In the appeal, the petitioner claimed the cheque was given as security to a third party, not to the complainant. He argued that the trial court failed to consider crucial facts, such as the closure of his bank account before the cheque date.3. Appellate court's decision: The appellate court dismissed the appeal, considering the defense an afterthought. It found discrepancies in the petitioner's claims and upheld the trial court's judgment based on the complainant's evidence and the petitioner's failure to respond to the statutory notice.4. Legal burden and evidence: The petitioner argued that the complainant failed to prove the cheque was issued for a legally enforceable debt. He relied on Supreme Court and High Court judgments emphasizing the need for the complainant to establish the debt's existence.5. Court's reasoning: The court noted the petitioner's failure to provide substantial evidence supporting his defense. The complainant's evidence, coupled with the dishonored cheque, invoked statutory presumptions under the Negotiable Instruments Act.6. Judgment modification: The court found no error in the lower courts' judgments and modified the sentence, ordering the petitioner to pay compensation to the complainant within a specified period, deviating from the original imprisonment and fine.In conclusion, the court upheld the conviction based on the complainant's evidence and statutory presumptions, emphasizing the importance of proving a legally enforceable debt in cheque bounce cases. The petitioner's defense was found lacking in substantial evidence, leading to the modification of the sentence to compensation payment.