2020 (5) TMI 446 - HC - Indian Laws

Accused's Conviction Upheld for Dishonored Cheque, Sentence Modified

Sunitha Versus Sheela Antony State Of Kerala

The appellate court confirmed the accused's conviction under Section 138 of the Negotiable Instruments Act for issuing a dishonored cheque to settle a ... Dishonor of Cheque - validity of concurrent verdicts of guilty and conviction made against her by the courts below and the sentence imposed - offence u/s 138 of NI Act - absence of evidence to rebut the presumption under Section 139 of the Act - HELD THAT:- The complainant has no obligation, in all cases under Section 138 of the Act, to prove his financial capacity. But, when the case of the complainant is that he lent money to the accused by cash and that the accused issued the cheque in discharge of the liability, and if the accused challenges the financial capacity of the complainant to advance the money, despite the presumption under Section 139 of the Act, the complainant has the obligation to prove his financial capacity or the source of the money allegedly lent by him to the accused. The complainant has no initial burden to prove his financial capacity or the source of the money. The obligation in that regard would arise only when his capacity or capability to advance the money is challenged by the accused. In the present case, the accused had challenged the financial capacity of the complainant to lend an amount of ₹ 4,50,000/-. The complainant gave evidence regarding the source of the money lent by her to the accused and the courts below have found that such evidence is reliable and acceptable. Moreover, it is a case in which the accused admits that she had borrowed an amount of ₹ 2,90,000/- from the complainant. In such circumstances, the plea of the accused that the complainant had no financial capacity to advance the money, is only to be rejected. The revisional court is not meant to act as an appellate court. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the High Court shall not interfere with such finding or decision in exercise of its revisional jurisdiction - the conviction of the petitioner/accused for the offence under Section 138 of the Act is only to be confirmed. Petition dismissed. Issues Involved:1. Issuance of cheque in discharge of a pre-existing liability.2. Financial capacity of the complainant to lend Rs. 4,50,000.3. Imposition of fine and the accused’s capacity to pay the amount.Detailed Analysis:1. Issuance of Cheque in Discharge of a Pre-existing Liability:- The complainant alleged that the accused issued a cheque for Rs. 4,50,000 to settle a debt. The cheque was dishonored due to insufficient funds.- The trial court found the accused guilty under Section 138 of the Negotiable Instruments Act, 1881, and sentenced her to three months of simple imprisonment and a compensation of Rs. 4,50,000.- The appellate court confirmed the conviction but modified the sentence to imprisonment till the rising of the court and reduced the default sentence to 45 days.- The accused challenged the verdict, claiming she never issued the cheque to discharge a pre-existing liability and that the cheque was misused by the complainant.- The court noted that the accused admitted her signature on the cheque but failed to provide evidence to support her claim that it was a blank cheque misused by the complainant.- The court found the complainant’s testimony credible and consistent with the evidence, thus confirming the issuance and delivery of the cheque by the accused to the complainant.2. Financial Capacity of the Complainant to Lend Rs. 4,50,000:- The accused contended that the complainant lacked the financial capacity to lend Rs. 4,50,000.- The complainant testified that she obtained the money from her son working in Iraq, relatives, and borrowed Rs. 60,000 from a person named Reena.- Reena, examined as DW1, supported the complainant’s claim by confirming she lent Rs. 30,000 on two occasions to the complainant.- The court emphasized that the accused admitted to borrowing Rs. 2,90,000 from the complainant, undermining her argument about the complainant’s financial incapacity.- The court referenced several Supreme Court decisions, stating that the complainant does not have an initial burden to prove financial capacity unless challenged by the accused, which was adequately addressed in this case.3. Imposition of Fine and the Accused’s Capacity to Pay the Amount:- The accused argued that the courts imposed a fine without considering her capacity to pay.- The court clarified that no fine was imposed; instead, the direction was to pay compensation equal to the cheque amount, which is legal and proper under the Negotiable Instruments Act.- The court cited Supreme Court rulings that support imposing compensation up to twice the cheque amount, emphasizing that such compensation is practical and realistic, considering the nature of the offence.- The court confirmed the appellate court’s sentence as proper and reasonable, dismissing the revision petition.Conclusion:- The revision petition was dismissed, and the conviction and sentence imposed by the appellate court were confirmed.- The court granted the petitioner six months to pay the compensation due to the financial issues arising from the Covid-19 pandemic.